Religion Clause

Sunday, March 23, 2014

Recent Prisoner Free Exercise Cases

In Tennyson v. Carpenter, (10th Cir., March 18, 2014), the 10th Circuit held that a federal district court wrongly dismissed as frivolous a Christian inmate's RLUIPA, 1st Amendment and retaliation claims growing out his suspension from the prison's "Praise Team" choir after choir music binders he kept in his cell were confiscated, and he filed a grievance over the incident.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 34137 (SD IL, March 17, 2014), an Illinois federal district court permitted an African-American inmate to proceed with his free exercise and equal protection complaints that the Caucasian chaplain and Caucasian warden denied him a kosher diet that conforms to African Hebrew Israelite beliefs. However the court denied a temporary restraining order and dismissed without prejudice plaintiff's conspiracy claims.

In Halloum v. Ryan, 2014 U.S. Dist. LEXIS 35077 (D AZ, March 18, 2014), an Arizona federal district court permitted a Muslim inmate to proceed with his complaint that his free exercise rights were infringed when he was denied a religious shaving waiver. A number of other claims were dismissed, including complaints that the chaplain rejected donated copies of the Qur'an and Muslim inmates were denied communal prayer on two mornings during Ramadan.

In Browning v. Seifert, 2014 U.S. Dist. LEXIS 35232 (ND WV, March 18, 2014), a West Virginia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 35237, Jan. 28, 2014) and allowed an Orthodox Jewish inmate to proceed against most of the defendants on his complaint that he was denied him a kosher diet, the ability to wear religious apparel, and the right to worship weekly and on special holidays.

In Irby v. Cain, 2014 U.S. Dist. LEXIS 35419 (MD LA, March 17, 2014), a Louisiana federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 35123, Feb. 19. 2014) and dismissed an inmate's claim that he was retaliated against for refusing to attend a religious call-out at prison. The court concluded that the action taken against the inmate was merely de minimis adverse action.

In Roberts v. Schofield, 2014 U.S. Dist. LEXIS 35222 (MD TN, March 18, 2014), a Tennessee federal magistrate judge refused to grant preliminary injunction to stop the implementation of a vegan-type Kosher diet in Tennessee prisons.

In Bush v. Donovan, 2014 U.S. Dist. LEXIS 35325 (SD CA, March 17, 2014), a California federal district court dismissed a Muslim inmate's complaint that, among other things, he was denied a Qur'an and hindered in the practice of his Muslim faith.

In Long v. Stanislaus County Superior Court, 2014 U.S. Dist. LEXIS 35407 (ED CA, March 17, 2014), a California federal magistrate judge, relying on 11th Amendment immunity, dismissed (with leave to amend) an inmate's claim against a state court for forcing him to violate his religious objections to participating in psychology. The state court had ordered him to be evaluated by psychologists, given medication and placed in a mental hospital.

Saturday, March 22, 2014

Trial Court Erred In Allowing Police To Remove Pastor At Request of Dissident Group

As reported by the Colorado Springs Gazette, in St. John’s Baptist Church Governing Body v. Sutton a Colorado state court of appeals on Thursday held that a state trial court judge acted improperly when he issued an order allowing police to remove a pastor from his pulpit. The order came at the request of a dissident group in St. John's Baptist Church which formed a separate Governing Board in 2011 and ordered the pastor out. The Court of Appeals said in part:

The [trial] court made a decision regarding ecclesiastical internal governance and organization; it determined for the church who represented its interest, a governing decision belonging only to the church.

The Court of Appeals said that ownership of the church's property should be determined by the trial court through an examination of deeds, articles of incorporation, bylaws and other documents. (Note: because of policies of the Colorado Court of Appeals, the full text of its unpublished opinions may not be posted on any electronic database.)

District Court Invalidates Michigan Ban on Same-Sex Marriage; 6th Circuit Stays Order

In DeBoer v. Snyder, (ED MI, March 21, 2014), a Michigan federal district court held that Michigan's state constitutional ban on same-sex marriage violates the 14th Amendment's equal protection clause. The case began as a constitutional challenge to Michigan's adoption laws which only allow single persons or married couples to adopt. Plaintiffs were a same-sex couple who were precluded from marrying under Michigan law. The court invited plaintiffs to amend their complaint to challenge the Michigan Marriage Amendment which the court saw as the underlying reason plaintiffs could not jointly adopt children. Plaintiffs did so, and the court held a two-week trial, largely devoted to expert testimony about whether children raised by heterosexual parents did better than those raised by same-sex couples. The court's opinion discusses the expert testimony at length, ultimately concluding that the state has no rational basis for preventing same-sex couples from marrying. ACLU of Michigan issued a press release announcing the decision.

Ten minutes after the district court's March 21 opinion was handed down, Michigan state attorney general Bill Schuette filed an emergency motion asking the 6th Circuit to stay the district court's order, pending appeal. (Detroit Free Press.) On March 22, the 6th Circuit issued an order directing plaintiffs to respond by March 25, and a second order temporarily staying the district court's judgment until March 26 "to allow a more reasoned consideration of the motion."

Meanwhile, clerk's offices in four Michigan counties opened Saturday morning to allow same-sex couples to obtain licenses, and, according to AP, over 300 licenses were issued before the 6th Circuit called a halt to their issuance by its stay. The attorney general's office declined to say whether the state would recognize these marriages, saying "the courts will have to sort it out."

Friday, March 21, 2014

New IRS Exempt Organization Head Speaks On Priorities

BNA Daily Report for Executives (subscription required) reports on the first public comments by Tamera Ripperda, the Internal Revenue Service's new director of Exempt Organizations. Speaking yesterday at the Washington Non-Profit Legal and Tax Conference, she said that a key focus for IRS this fiscal year is to reduce the backlog of applications for tax exemptions. Her goal is to close the oldest cases-- mostly applications under Section 501(c)(3)-- by the end of June. Examination of non-profits will focus on protection of charitable assets, activities that jeopardize exempt status, and international issues, and will involve an expanded use of data analytics.

Georgia Legislature Allows Guns In Churches That Want Them; Reduces Penalty For Carrying In Other Churches

As it wound up its legislative session, the Georgia General Assembly yesterday gave last minute final passage to HB 60 as amended which expands the places in which persons holding weapons-carry permits may bring firearms. The bill, among other things, allows firearms to be carried in houses of worship if "the governing body or authority of the place of worship" permits it. However, the bill provides a minimal punishment for a person who holds a weapons carry licence and brings a weapon into a place of worship that has not opted permit firearms. The person may not be arrested and may be fined not more than $100. The final version passed the Senate by a vote of 37-18 and the House by a vote of 112-58. The bill now goes to the governor for his signature. Atlanta Journal Constitution reports on the bill's passage.

Court Grants Stay Pending Appeal In Kentucky Same-Sex Marriage Case

In Love v. Beshear, (WD KY, March 19, 2014), a Kentucky federal district court granted a stay pending appeal to the 6th Circuit of its prior decision requiring recognition of same-sex marriages validly performed in other states. Previously the court had stayed its order only until March 20. (See prior posting.) The state argued that failure to extend the stay would result in "chaos." In granting the further stay pending appeal, the court found persuasive arguments on both sides, but said that it was strongly influenced by the U.S. Supreme Court's action in granting a stay in the Utah same-sex marriage case. The district court said in part:

Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance.... It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.

Louisville Courier-Journal reports on the decision. [Thanks to Tom Rutledge for the lead.]

Muslim Woman Sues Gym For Refusing To Allow Head Covering

The Albuquerque Journal reported yesterday on a religious and racial discrimination lawsuit filed in New Mexico state court by a Muslim woman (who is also African-American) who was not permitted to enter a Planet Fitness gym because she was wearing a head covering. A Planet Fitness attorney says the gym did not know the head covering was for religious purposes and that it violated the gym's dress code that prohibits jeans, work boots, bandanas, skull caps and revealing apparel. Plaintiff Tarainia McDaniel, who holds a two-year membership in the gym, says she was told that while the dress code was sometimes waived, it could not be in her case because her head covering was red. The lawsuit alleges racial and religious discrimination in violation of the New Mexico Human Rights Act and the New Mexico Unfair Practices Act.

Appeals Court Upholds Religious Restrictions As To Children In Divorce Case

In In re the Marriage of Suzanne Paulsen and Timothy Paulsen, (WA App., March 19, 2914), a Washington state appeals court upheld a trial court's parenting plan that was entered along with a decree dissolving the marriage of the Paulsens. Among other restrictions on the father, the appeals court upheld the trial court's award to the mother, Suzanne Paulsen, of sole decision-making power as to the children's religious upbringing. It also affirmed the trial court's ban on the father, Timothy Paulsen, engaging in prayer or discussion of religious matters with the children. The religious restrictions, as well as visitation restrictions, were justified by evidence that Timothy, as a junior high school teacher, had sexually abused students, using religion and prayer as a technique to weaken their defenses to his sexual approaches.

Court Upholds Conviction of Pastor For Conspiracy To Commit Child Abuse

In State of Wisconsin v. Caminiti, (WI App., March 20, 2014), a Wisconsin state court of appeals upheld the conviction of the pastor of a small, close-knit religious community on eight counts of conspiracy to commit child abuse. Philip Caminiti taught his followers that they should discipline fussy infants starting as young as 2 or 3 months by forcefully striking their bare bottoms with wooden spoons and dowels. He claimed that the Bible gives specific instruction on what tools to use, and he demonstrated to his congregation the correct degree of force. During church services Caminiti would look at parents whose child was crying to indicate that they should discipline the child. The court rejected Caminiti's free expression, free exercise of religion and parental rights defenses. The court held that the state has a compelling interest in preventing child abuse, and that the state's "reasonable discipline" privilege for parents strikes an appropriate constitutional balance.

Court Refuses To Permit Interlocutory Appeal In Case Challenging Compliance With Church Plan Exemption To ERISA

In Rollins v. Dignity Health, (ND CA, March 17, 2014), a California federal district court refused to permit an interlocutory appeal of a decision holding that the pension plan for employees of Dignity Health, a 16-state non-profit Catholic healthcare provider, does not qualify for the "church plan" exemption in ERISA. (See prior posting.) The court concluded that the issue presented does not rise to the level of a "controlling question of law" which must be shown to justify appeal before the case is finally decided. The court said:

If Dignity’s plan were not exempt, the Court would still have to consider Dignity’s ERISA compliance. And if the Dignity plan was held to be exempt, the Court would then have to consider Rollins’s claim regarding the constitutionality of such an exemption. Given these complicated, possibly divergent, and even potentially convergent paths the litigation could take, the Court agrees with Dignity that an interlocutory appeal could significantly alter the course the litigation would take. Nevertheless, the Court concludes that the issue proposed for appeal would not so materially affect the entire nature of the litigation, or its outcome, to justify interlocutory review.

As reported by BNA Daily Report for Executives (subscription required), the case is one of five class actions around the country filed last year challenging pension plan sponsors' reliance on the church plan exemption to justify non-compliance with ERISA. A sixth class action raising the same kind of challenge was filed earlier this week.

British Court Dismisses Fraud Charges Against President of Mormon Church

In Phillips v. Monson, (Westminster Magistrate's Court, March 20, 2014), a British magistrate's court set aside two summonses for fraud that were issued by the court last month ordering the president of the Church of Jesus Christ of Latter-day Saints to appear to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006. The summons were issued on the complaint of a private citizen-- a former member of the Mormon church who runs a website critical of the church. (See prior posting.) In yesterday's decision, the court concluded that the essential elements of a fraud violation were not set forth in the information presented. The magistrate judge went on to find:

It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr. Monson personally. The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based.

.... To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading.... No judge in a secular court in England and Wales would allow that issue to be put to a jury. It is non-justiciable.

I am satisfied that the process of the court is being manipulated to provide a high-profile forum to attack the religious beliefs of others. It is an abuse of the process of the court.

BBC News and Deseret News report on the decision. [Thanks to Austin Smith for the lead.]

Thursday, March 20, 2014

Fred Phelps, Founder of Anti-Gay Westboro Baptist Church, Dies

As reported by CNN, Fred Phelps, Sr., founder of the Topeka, Kansas- based Westboro Baptist Church, died today at age 84. Members of the church became known for their picketing of funerals of U.S. service members, as well as other events, with signs decrying homosexuality. Perhaps their most famous sign read "God Hates Fags." The church claims to have picketed over 53,000 events. It has extended its rhetoric to oppose to many other celebrities and religious groups as well. Westboro's activity led to anti-funeral picketing laws being enacted at both the federal and state levels, and extensive litigation over some of those laws. It was reported earlier this week that elders in the Westboro Baptist Church had excommunicated Phelps. Wikipedia has more on Phelps' life.

IRS Says 2 Religious Organizations Do Not Qualify As Non-Profits

Last week, the Internal Revenue Service made public (with identifying information redacted) two Written Determinations handed down in December finding that two different religious organizations do not qualify for Section 501(c)(3) non profit status.

In Release No. 201411037, the IRS concluded that a church's earnings inure to the benefit of its president from whom the church leases an unusable warehouse building. Over 80% of the church's revenues are used to pay rent, insurance and utilities on the building.

In Release No. 201411038, the IRS concluded that an organization formed to help small struggling synagogues throughout the United States develop strategic management plans is not operated exclusively for charitable, educational or religious purposes. A substantial part of the organization's operations involves offering in a commercial manner consulting and Jewish heritage travel tours. The revenues from these benefit the two founders of the organization.

Missing Malaysian Flight Generates Unusual Interfaith Cooperation In Malaysia

AP reports that the disappearance of Malaysia Airlines Flight 370 has led to interfaith cooperation in Malaysia that is unusual in light of the intense controversies between the country's Muslim majority and religious minorities (particularly Christians and Hindus). On Tuesday, an interfaith prayer service was held in a Kuala Lumpur shopping mall-- with participation by Muslims, Christians, Buddhists, Hindus and Taoists. Interfaith prayer services in the past have never had Muslim participation.

Establishment Clause Violation Via Twitter?

On Monday, the Freedom From Religion Foundation (press release) wrote a letter (full text) to Wisconsin Governor Scott Walker claiming that a "tweet" he posted to his official Twitter and Facebook accounts violated the Establishment Clause. The tweet read "Philippians 4:13" The Biblical verse referred to reads: "I can do all things through Christ, who strengthens me." In requesting the governor to delete the message, FFRF said the quote seems more like "the utterance of a theocratic dictator, than of a duly elected civil servant." It went on:

As governor, you took an oath of office to uphold the entirely godless and secular U.S. Constitution. You have misused your secular authority ... to promote ... one religion over another....

The posts have not been removed. [This is a correction. An earlier version of this posting incorrectly stated that they had been removed. [Thanks to Bill Dunn for the correction.]]

Muslim Couple Claims Discrimination When Forced Off Empire State Building Deck For Praying

Huffington Post and OnIslam report yesterday on a lawsuit filed in federal district court in New York by a Muslim couple who claim that they and their two children were forcibly escorted off the observation deck of the Empire State Building, down the elevator and out of the building, for engaging in Muslim prayer. They say they chose an area on the observation deck where there was little foot traffic to observe their 11 p.m. prayers last July. A guard poked the husband and told him that he was not allowed to pray while at the Observatory. The suit alleges they were targeted because they were Muslim, wearing traditional Muslim attire and engaged in Muslim prayer. It goes on to allege that owners of the building and their security personnel "have an unlawful policy, custom, practice, procedure and/or rule, whether express or implied, of barring patrons from exercising their religious beliefs in the Empire State Building and/or the Observatory."

Wednesday, March 19, 2014

Recent Prisoner Free Exercise Cases

In Kyles v. Chartier, 2014 U.S. Dist. LEXIS 32623 (D SC, March 13, 2014), a South Carolina federal district court upheld prison authorities' decision to permit an inmate to keep only 5 of his 19 books which he claimed he needed for a religious correspondence course.

In Gadsden v. Carpenter, 2014 U.S. Dist. LEXIS 32660 (D NV, March 13, 2014), a Nevada federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 32662, Jan. 29, 2014) and dismissed plaintiffs' claim that the flattening of religious grounds used by pagan inmates violated their free exercise rights. The court also rejected claims that officials retaliated against plaintiffs for filing grievances regarding the destruction of the pagan grounds.

In Pagan v. Westchester County, 2014 U.S. Dist. LEXIS 33408 (SD NY, March 12, 2014), a New York federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 33066, Feb. 3, 2014), and, while dismissing a number of claims, permitted inmates to move forward on (1) a complaint by Catholic inmates that they were no longer allowed to attend mass after they switched their religious designations in order to get kosher food merely because other food was undercooked and insufficient in amount; and (2) complaints by Muslim inmates that halal meals were undercooked and served on moldy trays, and the only alternative offered was a bologna sandwich that is in violation of religious dietary rules.

In Pino v. Ladd, 2014 U.S. Dist. LEXIS 33858 (ED CA, March 14, 2014), a California federal magistrate judge dismissed, with leave to amend, a Native American inmate's complaint that during a search of the Native American sweat lodge, authorities destroyed the fire pit, sacred mound, prayer ties and "nests of baby migratory birds."

In Cooper v. New Hampshire State Prison, 2014 U.S. Dist. LEXIS 33875 (D NH, March 13, 2014), a New Hampshire federal district court dismissed a Muslim inmate's complaint that on two occasions he was served meals that contained pork.

Court Rejects Vagueness Attack On Missouri Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, March 10, 2014), a Missouri federal district court rejected a vagueness challenge to a Missouri statute that bans:

picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

Plaintiff Shirley Phelps-Roper, a member of the Westboro Baptist Church which often pickets funerals with signs opposing homosexuality, argued that the "one hour prior to the commencement of any funeral" provision is unconstitutionally vague because published funeral times are frequently changed, and the person conducting a funeral may start it early. The court disagreed, saying that hypothetical situations not before the court will not be used to invalidate a statute that is valid in the vast majority of its applications. The court also rejected a vagueness challenge to the statutory provision that triggered the current ban's taking effect. AP last week reported on the decision.

Meanwhile, the Topeka Capital-Journal this week reported on power shifts within the Westboro Baptist Church. Church founder Fred Phelps Sr., who is seriously ill and has been admitted to a hospice, was excommunicated on recommendation of a board of male elders, apparently because he advocated kinder treatment of fellow church members. Former spokesperson and church attorney Shirley Phelps-Roper has lost influence in the church; its spokesman is now apparently Steve Drain.

Salvation Army Settles Suit Challenging Its Religious Mandates To Government Funded Social Service Workers

The New York Civil Liberties Union announced the approval yesterday of a settlement in Lowe v. The Salvation Army, a 10-year old lawsuit on behalf of 19 Salvation Army employees, including two who claim they were fired in retaliation for protesting the imposition of religious requirements on employees paid with government grant money. A 2003 national reorganization plan by the Salvation Army led to blurring the separation between the organization's government-funded social service programs that employ some 300 people in New York, and its religious mission. It began to require employees paid with government funds to give information on their religious affiliation and frequency of church attendance, and to commit themselves to providing social services in a manner consistent with the Christian religious principles of the Salvation Army.

In 2010 the NYCLU settled claims against government agencies that had also been sued. They agreed to monitor the Salvation Army to make sure it does not impose religion on recipients of government-funded social services. In yesterday's settlement, the Salvation Army agreed to provide employees in government-funded positions with a document indicating that it abides by equal employment opportunity provisions as to creed and sexual orientation, will not inquire into employees' religious beliefs, and requires its employees to furnish social services using sound practices without regard to whether they conflict with Salvation Army religious principles. However employees may not undermine the Salvation Army's religious mission. In the settlement, the Salvation Army will also pay $450,000 for damages and attorneys' fees. Newsmax reports on the settlement.

Court Dismisses Pastor's Contract Claim On 1st Amendment Grounds

In Reese v. General Assembly of Faith Cumberland Presbyterian Church in America, (TX App., March 14, 2014), a Texas appellate court dismissed on 1st Amendment grounds a lawsuit brought by a pastor who was fired less than two years into his 5-year employment contract with a Presbyterian congregation. Pastor Charles Reese sued the church for damages alleging breach of contract and intentional infliction of emotional distress. The court said in part:

To determine the efficacy of his claims, the courts would have to decide whether the termination of his employment was wrongful or premature. The free exercise clause of the Constitution prohibits the courts from reviewing employment decisions regarding ministers....

Here, if the Court were to second guess the Church’s decision to terminate Reese it would deprive the Church of its right “to shape its own faith and mission” by “imposing an unwanted minister.” Further, Reese is seeking damages nearly identical to those sought by the respondent in Hosanna-Tabor. As such, any monetary award by the Court would “operate as a penalty on the Church for terminating an unwanted minister.” Clearly, failure to extend the crux of Hosanna-Tabor to the instant case would result in the untenable consequence of the Court establishing religion and preventing the free exercise thereof in violation of the First Amendment.

Tuesday, March 18, 2014

Israeli Trial Court Dismisses Negligence Charges Against Mohels -- No Law Broken

Haaretz reports that an Israeli Magistrate's Court in the city of Ashkelon last week acquitted two individuals who had been charged with criminal negligence in connection with the Jewish ritual circumcision of a baby boy. One of those charged was a well known mohel with many years of experience, and the other was a student from overseas learning from him. They jointly performed a circumcision in which a baby boy suffered excessive bleeding, but no lasting harm. Criminal charges were filed when it was learned that the experienced mohel's certification from Israel's Chief Rabbinate had expired, and the student had not yet been certified.

During the trial, though, it became clear that no law had been broken. In the past, legislation has been introduced into Israel's Knesset to set standards for who may perform ritual circumcisions. Proposals have not passed because technically Jewish law imposes the obligation on the father to circumcise his son. Usually fathers delegate the task to a professional mohel. But if a father who did not meet legislative criteria chose to perform the circumcision himself, the law would be imposing criminal penalties on the performance of a religious obligation. This could create freedom of religion concerns. Magistrate Judge Haim Nachmias however in dismissing the charges wrote:

The legislators would be wise to regulate the profession of performing circumcisions, and the supervision of those performing this religious commandment, through legislation. And it would be better had this been done already.

Ministerial Exception and Ecclesiastical Abstention Doctrines Require Dismissal of Suit By Former Catholic Cemetery Employee

In Fisher v. Archdiocese of Cincinnati, (OH App., March 14, 2014), an Ohio state appellate court dismissed a suit by Vickie Fisher, the former co-director of a Catholic cemetery, whose job was eliminated by a new cemetery executive director. In her suit, Fisher alleged age discrimination, promissory estoppel, and intentional infliction of emotional distress. The court held that the ministerial exception doctrine applies to require dismissal:

Fisher was responsible for coordinating services in the chapel, working with grieving families, coordinating services with various parishes, and attending grave-site services. She interacted with clergy on a daily basis, and employed her status as a person “of the faith” to console grieving families. Fisher conducted these duties in a liturgical setting replete with religious statuary, photographs of the Pope and Archbishop, and a dispensary for Rosaries.

Fisher also underwent multi-year, doctrine-specific training at a Jesuit Catholic University to better perform her job. She was involved in the preparation and performance of religious rituals. As codirector of the cemetery, she served in an indisputable leadership position, acting as the face of the Catholic Church to thousands of grieving families. And like the plaintiff in Hosanna-Tabor, she saw herself as part of a larger ministry.

To the extent that the ministerial exception doctrine does not apply to Fisher's common law claims, the ecclesiastical abstention doctrine does: "Fisher’s claims would invariably interject this court into the Archdiocese’s internal affairs."

Judge DeWine concurred separately to urge that the court need not go beyond the ministerial exception doctrine to dismiss the lawsuit.

New Murfreesboro Lawsuit Challenges Muslim Cemetery

In Murfreesboro, Tennessee, where opponents of an Islamic Center engaged in several years of high-profile litigation beginning in 2010 (see prior posting), a new lawsuit has been filed challenging county approval of a Muslim cemetery on a portion of the Islamic Center's property. By a 3-2 vote, the Rutherford County Board of Zoning Appeals in January approved the cemetery which will not use caskets or burial vaults. According to the Murfreesboro Daily News-Journal, plaintiffs are attempting to require additional hearings, studies and permits before the cemetery can be approved. The case is being heard next week by the same trial court judge who ruled-- in a decision that was reversed by higher courts-- that inadequate public notice had been given before the mosque construction was approved.

Umbrella Group of U.S. Muslim Organizations Formed

Religion News Service reported last week on the formation of a new umbrella group-- the U.S. Council of Muslim Organizations. Comprised of ten existing Muslim organizations, the new advocacy group will first move to conduct a census of U.S. Muslims to determine their highest priority issues. Its ultimate goal is to protect civil rights, advocate on issues of concern and have a greater impact on American politics by increasing Muslim participation in the 2016 elections.

Monday, March 17, 2014

Guesthouse Owners In Britain Going To European Court In Try To Limit Double Rooms To Married Couples

In Britain, the Christian Legal Centre announced today that Jeff and Sue Green, the owners of a guesthouse in Wales, are applying directly to the European Court of Human Rights to obtain a ruling that would allow them to reflect their Christian beliefs by renting double rooms only to married couples. The UK Equality and Human Rights Commission (EHRC) challenged the owners' policy, informing them that it is unlawful to discriminate on the basis of sexual orientation. EHRC dropped the case when the Greens agreed to offer only single beds in all rooms. However the Greens are continuing to pursue their case. They are not first going through the British courts because last year's UK Supreme Court opinion in Bull v. Hall (see prior posting) indicates that it would be fruitless to do so. The Telegraph has additional details.

Suit Seeks Damages From California Cult

Courthouse News Service today reports on a lawsuit filed in state court in Riverside, California by Linda Grindstaff against "Emissaries of Divine Light", a California spiritual group which Grinstaff characterizes as a cult. The complaint outlines an elaborate series of events involving Grinstaff donating $50,000 to the cult, and her then being defrauded out of her home which she built on property purchased by the cult with her donated funds. She was manipulated into performing menial work without pay for the cult for some 50 hours per week, and paying additional amounts for food and medical care. The cult also was allegedly responsible for destroying Grindstaff's marriage by encouraging her husband to have sex with many women he counseled. The suit alleges breach of contract, fraud, and infliction of emotional distress, and seeks a variety of relief including quieting title to Grinstaff's home, a constructive trust and punitive damages.

South Carolina Divorce Action Challenges Ban On Same-Sex Marriage

A suit filed last week in Family Court in Greenville, South Carolina could be the vehicle for testing the constitutionality of South Carolina's ban on same-sex marriage. According to WYFF News, Cathy Swicegood is seeking a divorce from her same-sex partner of 13 years, claiming that the pair should be treated as married under South Carolina's statute that recognizes common law marriages entered prior to 2011. (Background.) In order to succeed, Swicegood will need the court to declare that South Carolina laws treating same-sex marriages as void are unconstitutional. [Thanks to Alliance Alert for the lead.]

Sunday, March 16, 2014

Recent Prisoner Free Exercise Cases

In Chernetsky v. Nevada, 2014 U.S. Dist. LEXIS 29571 (D NV, March 7, 2014), a Nevada federal district court adopted in part and rejected in part a magistrate's recommendations (2014 U.S. Dist. LEXIS 29574, Jam 17, 2014) and rejected a Wiccan inmate's complaint that he was barred from possessing certain religious property and engaging in various Wiccan rituals. However the court held that, while authorities are not required to build a new sweat lodge for plaintiff, he should be permitted to use an existing one on terms comparable to those for Native American use.

In Debarr v. Carpenter, 2014 U.S. Dist. LEXIS 29588 (D NV, March 6, 2014), a Nevada federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 29580, Jan. 13, 2014) and dismissed plaintiff's claim that he was retaliated against for protesting flattening of religious grounds used by pagan inmates. The court also concluded that disciplinary action and transfer because of the coordinated action by pagan inmates in filing over 300 grievances in less than a month was proper.

In Robinson v. Crutchfield, 2014 U.S. Dist. LEXIS 30660 (SD OH, March 10, 2014), an Ohio federal district court denied a temporary restraining order to a Muslim inmate who sought halal meals that include meat rather than the prison's vegetarian diet provided to those who request halal meals.

In Conway v. Purves, 2014 U.S. Dist. LEXIS 30255 (ED MI, March 10, 2014), a Michigan federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 30767, Feb. 12, 2014) and permitted Muslim plaintiffs to move ahead with their complaint over the nutritional adequacy of the meals provided during Ramadan.

In Incumaa v. Stirling, 2014 U.S. Dist. LEXIS 31559 (D SC, March 11, 2014), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 185985, Sept. 24, 2013) and dismissed plaintiff's claim that his religious exercise and due process rights were violated when prison officials designated Nation of Gods and Earths (Five Percenters) a security threat group.

In Johnson v. Solomon, 2014 U.S. Dist. LEXIS 32025 (WD NC, March 12, 2014), a North Carolina federal district court permitted an inmate to proceed with his claim that he is being denied a kosher diet that complies with his Hebrew Israelite beliefs.

In Njos v. Carney, 2014 U.S. Dist. LEXIS 32812 (MD PA, March 11, 2014), a Pennsylvania federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 32092, Feb. 19, 2014) and permitted plaintiff who claims to be Jewish to move ahead with his complaint that he was removed from the kosher diet progran and that he was not given adequate amounts of juice and matzo for use in his Sabbath ritual.

In Coward v. Jabe, 2014 U.S. Dist. LEXIS 32128 (ED VA, March 10, 2014), a Virginia federal district court upheld prison officials' decision to classify Nation of Gods and Earths as a gang rather than a religion, and their confiscation of of certain NGE publications from plaintiff's mail.

In Smith v. Perlman, 2014 U.S. Dist. LEXIS 32362 (ND NY, March 13, 2014), a New York federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 32554, Feb. 18, 2014) and dismissed a Mulsim inmate's complaint that he was denied a combined halal and therapeutic diet, hat he could not attend religious services while in keeplock, and that he was allowed only one family participation event per year.

USA Today reports on the Iowa Department of Corrections settlement of a lawsuit earlier this month in which it agreed, after a federal magistrate's decision in plaintiff's favor, to provide an inmate who is an adherent of Bochasanwasi Shri Akshar Purushottam Swaminarayan (a Hindu sect) with prepackaged food that is free of contact with pots, pans or utensils that had previously touched meats, eggs, mayonnaise, onions or garlic.

Narrow Injunction Requires Tennessee To Recognize Marriages of 3 Same-Sex Couples

As reported by SCOTUSblog, on Friday a Tennessee federal district court issued a narrow preliminary injunction requiring Tennessee to recognize the same-sex marriages of the three couples who are plaintiffs in the case and who were married in states where such marriages are legal. In Tanco v. Haslam, (MD TN, March 14, 2014), the court said in part:

Currently, all relevant federal authority indicates that the plaintiffs in this case are indeed likely to prevail on their claims that the Anti-Recognition Laws are unconstitutional. That said, by the time that this court is asked to render a final judgment, it may be that other federal courts will have reached a different interpretation that favors the defendants’ position. By the same token, it may be that federal courts will continue uniformly to strike down anti-recognition laws, state same-sex marriage bans, and other laws that discriminate based on sexual orientation. The impact of future decisions, which are forthcoming as the result of continuing litigation in other federal trial and appellate courts across the country, will inevitably influence the ultimate disposition of this case.

Consent Decree Bars Louisiana School District's Promotion of Religion

The ACLU announced on Friday the entry of a consent decree (full text) in Lane v. Sabine Parish School Board, (WD LA, March 14, 2014), enjoining the blatant promotion of Christianity (and harassment of a Buddhist student) that had been taking place in the Negreet, Louisiana schools. (See prior posting.) The detailed 11-page decree decree enjoins school officials from promoting prayer at school events, funding or sponsoring religious services, holding school events at religious venues when other locations are available, promoting personal religious beliefs to students in school or at school events, denigrating a particular religious faith or singling a student out for criticism because of his or her religious beliefs. It also puts strict limits on the distribution of material in schools by outside groups.

Saturday, March 15, 2014

White House Blog Notes Tonight's Start of Purim

Tonight is the start of the Jewish holiday of Purim. A blog post from the White House Office of Public Engagement yesterday notes this by summarizing the story of Purim, and adding that "Purim’s more serious underlying themes of persecution and survival in the face of the planned genocide of ancient Persia’s Jews" still resonates. Much of the post though is devoted to recipes for the traditional Purim pastry, hamantaschen.

Friday, March 14, 2014

Suit Claims Disorientation From Religious Fast Treated As Mental Illness

Courthouse News Service reports this week on a lawsuit filed in Common Pleas Court in Cleveland, Ohio by a Pentecostal Christian "self-published spiritual author" who claims she was involuntarily committed to a hospital psychiatric ward when she became confused and disoriented on the 15th day of a "Biblical fast." She has sued the hospital and a doctor, claiming that he and the hospital staff "characterized [her] religious devotion as evidence of mental instability, making repeated references to her 'religious preoccupation' and noting [her] Bible reading and audible praying as evidence [of] mental illness." She seeks punitive damages for false arrest and violation of patient rights. The case is Doe v. St. Vincent Charity Medical Center, (filed 3/10/2014).

New High-Budget Noah Movie Banned By Islamic Censors In 3 Countries

WebProNews reports today that censors in Bahrain, Qatar, and the United Arab Emirates have banned the showing in their countries of the new Paramount Pictures high-budget movie "Noah." Also Egypt's Al-Azhar has issued a fatwa against the film. A spokesman from the UAE’s National Media Center says that the film portrays holy figures in art in contravention of Muslim religious beliefs. Censors also say that the film may offend viewers because some of scenes contradict Islamic teachings.

Boehner, Pelosi Invite Pope To Address Joint Session of Congress

As Pope Francis marks his first anniversary as Pontiff, House Speaker John Boehner announced yesterday that he has extended an open invitation to Pope Francis to address a joint meeting of the U.S. Congress, saying in part:

His tireless call for the protection of the most vulnerable among us—the ailing, the disadvantaged, the unemployed, the impoverished, the unborn—has awakened hearts on every continent....

Many in the United States ... have embraced Pope Francis’ reminder that we cannot meet our responsibility to the poor with a welfare mentality based on business calculations. We can meet it only with personal charity on the one hand and sound, inclusive policies on the other.

The Holy Father’s pastoral message challenges people of all faiths, ideologies and political parties. His address as a visiting head of state before a joint meeting of the House and Senate would honor our nation in keeping with the best traditions of our democratic institutions. It would also offer an excellent opportunity for the American people as well as the nations of the world to hear his message in full.

Time reports that House minority leader Nancy Pelosi issued a statement joining in the invitation.

Suit Seeks Florida Recognition of Same-Sex Marriages

In Florida on Wednesday, eight same-sex couples who were married in other states filed a federal lawsuit seeking to require Florida to recognize their marriages. The complaint (full text) in Grimsley and Albu v. Scott, (ND FL, filed 3/12/2014) contends that the refusal to do so violates the due process and equal protection clauses. ACLU announced the filing of the lawsuit. A state court lawsuit seeking to require Florida to issue marriage licenses to same-sex couples is already pending. (See prior posting.)

Air Force Academy Controversy Over Cadets Posting Bible Verses

The U.S. Air Force Academy which is no stranger to church-state controversies is now in the midst of one over whether cadets may post Bible verses on the whiteboard each cadet has on his room door. As reported yesterday by Fox News, the controversy began after a cadet leader posted a verse from Galatians on his dorm room door and another cadet contacted the Military Religious Freedom Foundation. When MRFF's head complained, the Bible verse was erased. A dozen other students, though, upset by the removal of the verse began to post other Bible verses-- and some from the Qur'an-- on their own doors. The Academy did not require these to be removed because the students involved are not cadet leaders. meanwhile a coalition of religious advocacy groups has offered assistance to any cadet sanctioned for posting Bible verses on his door.

Thursday, March 13, 2014

India's Supreme Court Says Lack of Enforcement of Existing Laws Is At Root of Hate Speech Problem

In Sangathan v. Union of India, (India Sup. Ct., March 12, 2014), a 3-judge bench of the Supreme Court of India refused to issue specific orders for authorities to take action against hate speech by political and religious leaders. Among the requests in the Public Interest Lawsuit was for the court to order suspension of legislators who engage in hate speech and de-recognition of their political parties. However the court concluded that current laws already provide sufficient remedies against hate speech:

The root of the problem is not the absence of laws but rather a lack of their effective execution. Therefore, the executive as well as civil society has to perform its role in enforcing the already exiting legal regime.

The court encouraged the Law Commission to consider defining "hate speech" and make recommendations to Parliament for it to strengthen the Election Commission's powers to curb hate speech. Outlook India reports on the decision.

Georgia Legislature Authorizes Ten Commandments Monument On State Capitol Grounds

According to WSB-TV News, the Georgia State Senate yesterday gave final passage and sent to the governor for his signature HB 702 which authorizes placing within the capitol building or on the statehouse grounds a "historic granite monument" depicting the Preamble to the Georgia Constitution, a line from the Declaration of Independence, and the Ten Commandments. The monument is to be funded only by private contributions. The bill passed the House last week by a vote of 138-37. It passed the Senate yesterday by a vote of 40-10.

Montana Supreme Court Rules On Lutheran Church Property Dispute

In New Hope Lutheran Ministry v. Faith Lutheran Church of Great Falls, Inc., (MT Sup. Ct., March 12, 2014), the Montana Supreme Court held that members of a Lutheran congregation-- Faith Lutheran Church-- that voted to break away from the Evangelical Lutheran Church in America over ELCA's policy of ordaining gays and lesbians are not entitled to the church's property. The break-away members voted to affiliate instead with Lutheran Congregations in Mission for Christ. Under Faith Lutheran's constitution, while a 2/3 vote would authorize disaffiliation, a 90% vote was needed before title to the church's property would go to the break-away congregation. Only 71% of members voted to disaffiliate. The court said:

we conclude that a dispute over church documents susceptible to application of neutral principles may ... be resolved by a court using the neutral approach. The challenge raised here by Faith Lutheran to the validity of the 1993 constitution does not require us to delve into doctrinal matters, and only separate, secular language is used. Resolution is possible under application of neutral principles of contract, trust, and corporate law. Thus, no First Amendment concern is raised that would prohibit a court’s exercise of jurisdiction over the dispute.....

Finding that the church's 1993 constitution was valid, the court held that the congregation's property belongs to New Hope Lutheran Ministry-- the group that remains loyal to ELCA. However the court concluded that funds held by a Foundation that was created to support Faith Lutheran Church belong to the break-away congregation. The Montana Supreme Court also published a Synopsis of the Case. Great Falls Tribune reports on the decision.

Group Seeks Ecclesiastical Proceedings Against Episcopal Bishop For Her Civil Lawsuits Against Break-Away Parishes

Virtue Online reported yesterday that the American Anglican Fellowship (AAF), a group of current and former members of The Episcopal Church (TEC), filed a formal complaint last December with TEC's Intake Officer seeking to invoke formal ecclesiastical proceedings against Presiding Bishop Katherine Jefferts Schori because of the litigation in civil courts that she has undertaken against break-away parishes. AAF claims:

The litigation authorized by the Presiding Bishop and various bishops asks courts to interpret provisions of the Constitution and Canons. The litigation thus violates Canon IV.19.2, which provides that "No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons, or for any purpose of delay, hindrance, review or otherwise affecting any proceeding under this Title."

The litigation further violates Canon IV.4.1(e), which requires the Presiding Bishop and various bishops, as members of the Clergy, to "safeguard the property and funds of the Church and Community." The expense for litigation is a violation of the canon since other solutions with substantially less cost have been used in the past and today by TEC as well as the Presbyterian and Lutheran Churches.

For failure to safeguard the property and funds of the Church, the Presiding Bishop "shall be accountable" (Canon IV.4.2).

The AAF complaint says: "We framed this document in a caring and loving way ... not to discipline, but to achieve an Accord of conciliation as Christ would have us do, to bring an end to this madness of Christians suing Christians," AAF has not yet received a formal response from TEC to its complaint.

New Lawsuit Challenging Contraceptive Mandate Filed By Multi-employer Catholic Organization and Others

Catholic News Service and a press release from Catholic Benefits Association report on the latest lawsuit that has been filed to challenge the Affordable Care Act contraceptive coverage mandate. Plaintiffs in the lawsuit filed yesterday in federal court in the Western District of Oklahoma are Catholic Benefits Association and its captive insurance company, the Archdiocese of Oklahoma City and its Catholic Charities, All Saints Catholic School in Oklahoma, Archbishop William E. Lori and the Archdiocese of Baltimore, Cathedral Foundation in Baltimore, Villa St. Francis Catholic Care Center in Kansas City, KS, and Good Will Publishers in North Carolina.

Catholic Benefits Association is a recently-formed organization comprised of nearly 200 Catholic employers and 1000 parishes from around the United States. The organization makes self-insurance plans with back-up stop loss insurance (with coverage consistent with Catholic values) available to members, and "provides a cost-effective strategy for Catholic employers seeking protection from the HHS contraception, abortion-inducing drugs or devices, sterilization, or related counseling ... Mandate and other similar state or federal mandates." (CBA FAQs).

With the U.S. Supreme Court about to hear arguments in the Hobby Lobby case on whether corporations can assert free exercise rights, it is interesting to note Catholic Benefits Association's criteria for becoming an employer member:

For-profit employers can become CBA members if (i) Catholics (or trusts or other entities wholly controlled by Catholic) own 51 percent or more of employer; (ii) 51 percent or more of the members of the employer’s governing body, if any, is comprised of Catholics; and (iii) either the employer’s owners or governing body has adopted a written policy stating that the employer is committed to providing no benefits to the employer’s employees or independent contractors inconsistent with Catholic values.

UPDATE: The complaint (full text) in Catholic Benefits Association v. Sebelius,(WD OK, filed 3/12/2014) is now available.

Cert. Filed In RLUIPA Land Use Case

Earlier this week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodsboro, Wisconsin, (cert. filed 3/10/2014). In the case the U.S. 7th Circuit Court of Appeals rejected challenges to county land use regulations which prohibit plaintiff from operating a year-round Bible camp on residentially zoned property. (See prior posting.) The cert. petition asks the Supreme Court to settle conflicts over the interpretation of several provisions of the Religious Land Use and Institutionalized Persons Act. [Thanks to Art Jaros for the lead.]

Wednesday, March 12, 2014

Washington Legislature Passes Bill Giving Public Employees, Students 2 Days Off For Religious Holidays

Yesterday the Washington state legislature passed and sent to the governor for signature SB 5173 that assures state employees and public school students two days per year off for religious holidays. Public employees, including employees of school districts and public colleges, under the bill are entitled to "two unpaid holidays per calendar year for a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization."

The bill also provides that a student is excused from attending school "subject to approval by the student's parent for a reason of faith or conscience, or an organized activity conducted under the auspices of a religious denomination, church, or religious organization, for up to two days per school year
without any penalty." However it goes on to provide that "such absences may not mandate school closures." The bill passed 64-32 in the House, and 49-0 in the Senate. Yesterday's Bellingham Herald reports on the bill's passage.

House Passes Religious Exemption To Required Health Insurance For Those Who Are Opposed To All Medical Treatment

With bipartisan support, the House of Representatives yesterday passed by voice vote and sent to the Senate H.R. 1814-- the Equitable Access to Care and Health (EACH) Act. The Hill reports on the House vote which extends an exemption (26 USC 5000A(d)(2)) currently in the Affordable Care Act that exempts members of a "recognized religious sect" whose tenets oppose accepting benefits of medical insurance. The bill passed by the House provides an exemption to individuals whose "sincerely held religious beliefs would cause the individual to object to medical health care that would be covered under such coverage." The bill is apparently intended to cover only those who hold sincere religious beliefs object to all health care supervised by physicians. It does not require the objector to be a member of a religious group with such tenets. To obtain the exemption, an individual would be required to file a sworn statement with his or her tax return. The exemption is lost if the individual during the year receives medical health care.

Israel's Knesset Passes Law To Draft Yeshiva Students

In Israel today, the Knesset passed the controversial Equal Service Bill imposing military service obligations on ultra-Orthodox (Haredi) Jewish yeshiva students who have historically enjoyed a draft exemption. Times of Israel reports that the bill provides for a 3-year transition period during which a target for ultra-Orthodox enlistees into the military will be set. The target will rise each year until 2017 when it will go to 5,200 new Haredi enlistees each year. Individual sanctions against yeshiva students who dodge the draft will be triggered if these enlistment targets are not met. The bill passed 67-1, with the opposition boycotting the vote. In 2012, Israel's High Court of Justice struck down the Tal Law -- whose formal title was "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law." (See prior posting.)

IRS Issues Sample Questions That May Be Asked Of Non-Profits In Making Rulings

In EO [Exempt Organizations] Update March 4, 2014, the Internal Revenue Service released a list of Sample Questions that may be asked of organizations applying for a determination that they are tax exempt. Among the sample questions are ones that might be asked of a Church Affiliate (Integrated Auxiliary); and of a Mission Society. IRS also released questions that might be asked in making a determination on whether Bingo and Other Gaming will jeopardize the tax status of, or lead to added taxes for, a non-profit (Background).

Tuesday, March 11, 2014

Jewish Employee's Discrimination Claim Against New York City Dismissed

In Brodt v. City of New York, 2014 U.S. Dist. LEXIS 29229 (SD NY, March 6, 2014), a New York federal district court dismissed claims by a former employee of the New York City Department of Information Technology & Telecommunications that he was denied a permanent position and eventually fired under the pretext of budget limitations when in fact the actions were based on his being an observant Jew. The court held that the facts alleged do not plausibly show discriminatory animus or a hostile work environment. According to the court, the comments by his supervisor that plaintiff should pray for him and his comments about plaintiff's nine children were simple teasing or isolated incidents. His supervisor's constantly rubbing plaintiff's yarmulke was merely annoying conduct.

Appeals Court Rejects Ban on Children Attending Mother's Church

In Stancek v. Stancek, (MN App., March 10, 2014), the Minnesota Court of Appeals resolved a child custody dispute between separated parents as to their three daughters. Before the parties separated, they belonged to Word of Life Church where the wife's parents were pastors, and where one of the children attended kindergarten. When the couple became estranged, the Church's board of trustees sent the father a letter prohibiting him from attending the church. The trial court awarded legal and physical custody of the children to the father. It also prohibited the mother from taking the children to the Word of Life Church because "that would likely lead to the alienation of the children from their father ... or result in an uncomfortable worship scenario for the children...." Without reaching the free exercise and establishment clause arguments, the Court of Appeals held:

The record does not support the finding that it is “impossible” for the children to attend Word of Life Church..... The district court’s conclusion... is modified so that mother’s provision of care for the children (as an alternative to daycare) may be either at her home or at any daycare facility where she works (without regard to whether the facility is located at her church)..... Similarly, the prohibition on the children attending or otherwise being part of the Word of Life congregation is unsupported by the findings as modified, and the prohibition is therefore reversed.

Supreme Court Denies Review In Break-Away Church Property Dispute

The U.S. Supreme Court yesterday denied certiorari in Falls Church v. Protestant Episcopal Church, (Docket No. 13-449, cert. den. 3/10/2014). (Order List.) In the case, the Virginia Supreme Court ordered that a break-away local congregation must convey most of its property to The Episcopal Church by reason of TEC's "Dennis Canon," but remanded as to personal property acquired by the local congregation after its vote to disaffiliate from TEC. (See prior posting.) Religion News Service reports on the Court's denial of review. [Thanks to Bob Tuttle for the lead.]

Monday, March 10, 2014

Suit Challenges Indiana's Same-Sex Marriage Ban

The Indianapolis Star reports that last Friday a lawsuit was filed in federal district court challenging the constitutionality of Indiana's statutory ban on same-sex marriages and on recognizing same-sex marriages performed in other states. In a press release, state Attorney General Greg Zoeller said:

As Indiana's Attorney General I will represent our state and defend our statute now and on any appeal to the best of my skill and ability, as I swore an oath to do. As state government’s lawyer, I must defend the state’s authority to define marriage at the state level within Indiana’s borders. People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.

Meanwhile the state legislature effectively delayed until at least 2016 any vote on a proposed state constitutional amendment to ban same-sex marriage in the state. [Thanks to Alliance Alert for the lead.]

Required Signs In Pregnancy Counseling Centers Held Unconstitutional

In Centro Tepeyac v. Montgomery County, (D MD, March 7, 2014), a Maryland federal district court enjoined the enforcement of a Montgomery County Maryland Resolution that requires each "limited service pregnancy center" to post to post a sign in its waiting room that reads:

(1) “the Center does not have a licensed medical professional on staff”; and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”.

The court held that the Resolution is a content-based regulation that compels non-commercial speech, and thus triggers strict scrutiny review. It concluded:

The record produced by Defendants is simply insufficient to sustain this regulation of Plaintiff’s First Amendment rights. Assuming arguendo that the County has a compelling interest in positive health outcomes for pregnant women, the critical flaw for the County is the lack of any evidence that the practices of LSPRCs are causing pregnant women to be misinformed which is negatively affecting their health. It does not necessarily follow that misinformation will lead to negative health outcomes.

Alliance Defending Freedom issued a press release announcing the decision.

Sunday, March 09, 2014

Malaysia Bans Comic Book That Refers To Super Hero As "Allah"

Time reports that in Malaysia last week, the Home Ministry banned distribution of the Malay language issue of Ultraman the Ultra Power comic book for its use of "Allah" in describing its super hero. The offending sentence has been translated as: "He is considered, and respected as, ‘Allah’ or the Elder to all Ultra heroes." The Home Ministry says that the comic book contains elements that can undermine public security and societal morals, and warned that the language threatens to confuse Muslim children and damage their faith. Some in Malaysia have taken to social media to deride the government's response. According to CNA, anyone distributing the banned comic book could face a sentence of three years in prison. This latest order adds to the long-running controversy over the use of "Allah" by non-Muslims-- particularly the use by Malay speaking Catholics to refer to God. (See prior posting.)

Fired Gay Catholic School Vice-Principal Sues

Last Friday, a lawsuit was filed in state court in Seattle, Washington by a former Catholic high school vice-principal Mark Zmuda who was fired after he married his same-sex partner last December. According to The Guardian, the suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. The Guardian reports:

Zmuda does not dispute that he signed an employment contract that required him to uphold Catholic teachings. However, his complaint claims that the school misrepresented its employment environment as being one of inclusion and anti-discrimination both on its website and in its employee handbook.

The school's president, Sister Mary Tracey knew earlier on that Zmuda is gay. He complied with her request not to bring his partner to school events. After the marriage, Sister Mary told Zmuda that if he would divorce his husband, the school would pay the costs of a commitment ceremony in place of a wedding, and would allow him to keep his job. The school is seeking dismissal of the suit on the basis of its 1st Amendment right to make its own decisions on matters of faith and doctrine.

Recent Prisoner Free Exercise Cases

In Wiseman v. Cate, 2014 U.S. Dist. LEXIS 26373 (ED CA, Feb. 27, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that Muslim inmates in the Halal food plan are provided Halal meat at dinner but are only provided vegetarian meals at breakfast and lunch.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 27060 (SD IN, March 3, 2014), an Indiana federal district court denied cross motions for summary judgment and permitted an inmate to continue to pursue his free exercise and RLUIPA challenges to prison policies that call for the zero tolerance on security threat groups, prohibit visits from ex-prisoners, limit the number of books that can be possessed, limit certain inmate-to-inmate correspondence, bar item censorship of religious publications, and ban the swastika.

In Esposito v. Quatinez, 2014 U.S. Dist. LEXIS 28452 (ED NY, March 5, 2014), a New York federal district court permitted plaintiff who was involuntarily committed to the psychiatric unit of Stony Brook University Hospital to continue to pursue her claim that requiring her to remain hospitalized violates her free exercise rights because her religious beliefs require that she not affiliate herself through receipt of treatment with a hospital that performs abortions.

In Baumgarten v. Howard County Department of Corrections, 2014 U.S. Dist. LEXIS 28590 (D MD, March 6, 2014), a Maryland federal district court permitted a Jewish inmate to proceed with his complaint that he was repeatedly denied kosher meals for which he had been approved. Plaintiff is seeking damages.

In Mitchell v. Cicchi, 2014 U.S. Dist. LEXIS 28738 (D NJ, March 6, 2014), a New Jersey federal district court dismissed, without prejudice, a Muslim inmate's complaint that he was barred from participating in the jail's Eid festival because of his maximum security status.

Saturday, March 08, 2014

Court Holds Middle School In Florida Not Covered By Federal Equal Access Act

In Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida, (MD FL, March 6, 2014), a Florida federal district court denied a preliminary injunction to the Gay-Straight Alliance that sought recognition as an official student organization in a Florida middle school. The court held that plaintiffs had not shown a likelihood of success on the merits of their claim that a middle school constitutes a "secondary school" for purposes of coverage under the federal Equal Access Act. That Act leaves the definition of secondary school to state law, and Florida statutes are unclear about whether this includes middle schools. The court also held that plaintiffs had not shown a likelihood of success on the merits of their 1st Amendment free speech claim because the refusal to recognize the group was reasonably related to legitimate pedagogical concerns in light of the age of the students involved.

Friday, March 07, 2014

First Guilty Plea In Coerced Jewish Divorce Extortion Operation

The New Jersey U.S. Attorney's Office announced that David Hellman, a 31-year old personal trainer, pleaded guilty yesterday in federal court to traveling in interstate commerce to commit extortion in an attempt to coerce a Jewish man in New York to give his wife a "get"-- a Jewish divorce document. Hellman was part of a group of men-- including two rabbis-- who allegedly charged women tens of thousands of dollars to use violence against their recalcitrant husbands who refused to grant a Jewish divorce after a civil divorce had been obtained. They were arrested in an FBI sting operation. (See prior posting.) Hellman was the first of the group charged to plead guilty. His bail conditions include a $500,000 bond and GPS monitoring. He faces a possible sentence of as much as 20 years in prison and a $250,000 fine. The Newark Star-Ledger reports on the case.

UPDATE: The March 11 Asbury Park Press reports that two additional defendants involved have pleaded guilty to charges of traveling in interstate commerce to commit extortion.

Purdue Reaches Compromise With Donor Over Reference To God on Plaque

Purdue University's controversy with a donor over the wording on a plaque has been settled with a compromise. As previously reported, suits and counter-suits were threatened when the University balked at placing on a conference room dedication plaque the donor's requested inscription that referred to "the understanding of God’s physical laws." Now, according to yesterday's Purdue Eponent, the University has agreed to revised language which shows the reference as a quotation from the donor. Also the University will add a second plaque nearby which will make clear that the quote is not Purdue's language and that the University is aware of its legal obligations of neutrality.

EEOC Releases Guidance On Religious Garb and Grooming Accommodation

The EEOC announced yesterday the release of two related technical assistance publications on the law regarding religious dress and grooming in the workplace. A Question and Answer document titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities is a guide (including examples) to when and how employers must accommodate employees' religiously-based requests on clothing, religious dress, head coverings, hair style and beards. The related Fact Sheet summarizes the basic requirements of Title VII.

The new guidance comes as the Department of Justice announced the filing of a federal lawsuit against the Philadelphia (PA) school district charging it with discrimination against a Muslim school police officer who was reprimanded for wearing a beard in violation of an October 2010 policy change that prevents school police and security officers from wearing beards longer than one-quarter inch. The employee, Siddiq Abu-Bakr, has worn a longer beard for the 27 years he has worked for the school district.

Google Denied Stay of Order To Take Down "Innocence of Muslims", But En Banc Rehearing Is Possible

As previously reported, last month in Garcia v. Google, Inc., the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. The decision was filed on Feb. 27, but apparently several days before the public release of the opinion the court ordered Google to take down the video. In a Feb. 27 motion, Google sought a stay pending a petition for an en banc rehearing (full text), saying:

The Court last Wednesday issued a sealed order directing that Defendant-Appellee Google Inc. take down “all copies” of the video "‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control" and that Google "take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms." Google has complied with the Court’s order, but in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review.

In an Order (full text) issued Feb. 28, the court denied a stay and ordered Google to comply with the take down mandate within 24 hours, but added that "this order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance."

In the latest development, yesterday the court issued an Order (full text) stating that one judge has requested a vote on whether to rehear en banc the request for a stay. The court gave the parties until March 12 to file briefs on whether an en banc rehearing should be granted. [Thanks to Edward Lee via CyberProf listserv for the lead.]

New Congressional Ahmadiyya Muslim Caucus Formed

The Washington Times and AFP report on the launch last Friday (2/28) of a new Congressional Ahmadiyya Muslim Caucus, co-chaired by Rep. Frank Wolf (R-VA) and Rep. Jackie Speier (D-CA). Some 15,000 to 20,000 Ahmadis live in the United States. Many orthodox Muslim groups consider the Ahmadis apostates because of their theological beliefs, and they have been persecuted particularly in Pakistan and Indonesia. An Ahmadiyya spokesman said that the new Congressional caucus will advocate for the rights of all persecuted religious communities. The Council on American-Islamic Relations expressed mixed feelings about the new caucus, saying: "we question Rep. Wolf’s involvement and genuine concern for issues of importance to our community given his long history of working with anti-Muslim fringe groups and causes." [Thanks to Mahmood Ahmad for the lead.]

Thursday, March 06, 2014

Ukraine's Jewish Leaders Dispute Putin's Charges Of Anti-Semitism In Ukraine

Russian President Vladimir Putin held a news conference (full text) on Tuesday at which he attempted to justify recent Russian actions in Ukraine. He said in part:

What is our biggest concern? We see the rampage of reactionary forces, nationalist and anti-Semitic forces going on in certain parts of Ukraine, including Kiev.

JTA reported yesterday that an open letter to Putin from Ukraine's Jewish community took issue with his remarks about anti-Semitism. Posted on the website of the Association of Jewish Organizations and Communities of Ukraine, the letter written in Russian (full text English translation) and signed by 21 leaders of Ukraine's Jewish community said in part:

Your certainty about the growth of anti-Semitism in Ukraine, which you expressed at your press-conference, also does not correspond to the actual facts. Perhaps you got Ukraine confused with Russia, where Jewish organizations have noticed growth in anti-Semitic tendencies last year.... The Jews of Ukraine, as all ethnic groups, are not absolutely unified in their opinion towards what is happening in the country. But we live in a democratic country and can afford a difference of opinion.

Suit Challenges Wyoming Ban On Same-Sex Marriage

National Center for Lesbian Rights announced yesterday that it has filed a state court lawsuit challenging Wyoming's statutory ban on same-sex marriage and the state's refusal to recognize same-sex marriages performed elsewhere. Unlike a number of other states, Wyoming's same-sex marriage ban is found only in state statutes, and is not embodied in the state constitution. Also the state's refusal to recognize same-sex marriages from other jurisdictions is merely a practice that is not supported by specific statutory provisions. The complaint (full text) in Courage v. Wyoming, (WY Dist. Ct., filed 3/5/2014), alleges that the statutory ban on same-sex marriage and the practice of refusing to recognize same-sex marriages from elsewhere violate the due process and equal protection clauses of the Wyoming state Constitution. It also alleges that the practice of refusing to recognize out-of-state same sex marriages violates Wyoming statutory provision (Sec. 20-1-111) that provides: "All marriage contracts which are valid by the laws of the country in which contracted are valid in this state." Unlike suits filed recently in other states, this lawsuit does not contain claims that the state's ban on same-sex marriage violates the federal constitution. [Thanks to Alliance Alert for the lead.]