Recent Prisoner Free Exercise Cases

In Jackson v. Nixon, (8th Cir., March 28, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision reversing the district court held that an atheist inmate adequately pled that requiring him to complete a substance abuse program with religious content to be eligible for early parole violates the Establishment Clause.  Judge Smith dissented arguing that the inmate suffered no punishment when he withdrew from the substance abuse program and other avenues for early parole were available.

In Vega v. Rell, 2014 U.S. Dist. LEXIS 38199 (D CT, March 24, 2014), a Connecticut federal district court dismissed a Muslim inmate's complaints that the prison commissary falsely labeled Jolly Rancher candies as Halal; that cheese on the Common Fare menu was not halal; that prison prayer rugs were dirty; and that he was not allowed to purchase a digital Qur'an or Islamic educational CDs.

In White v. Dooley, 2014 U.S. Dist. LEXIS 38859 (D SD, March 25, 2014), a South Dakota federal district court dismissed an inmate's complaint that he was denied access to certain religious items, hardcover religious books and religious study classes.

In Van Buren v. Coy, 2014 U.S. Dist. LEXIS 39756 (WD KY, March 26, 2014), a Kentucky federal district court dismissed an inmate's complaint that he was denied religious services by being placed in segregation.

In Davis v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 38763 (WD MI, March 25, 2014), a Muslim inmate alleged that he suffered food poisoning after eating items from his Ramadan food bag that were left unrefrigerated for many hours, and subsequently he only ate items from his food bag that did not require refrigeration. A Michigan federal district court held that this did not amount to a free exercise violation because, while he may have preferred more or different food, he did not show that this imposed a substantial burden on his free exercise.

In Maloney v. Ryan, 2014 U.S. Dist. LEXIS 39360 (D AZ, March 25, 2014), an Arizona federal district court dismissed a Muslim inmate's claim for damages under the free exercise clause finding that defendants had qualified immunity. No legal authority put them on notice that providing Ramadan breakfast before sunrise, rather than before dawn, violated inmates' constitutional rights. As to injunctive relief, the court gave defendants 30 days to show that their subsequent change in the breakfast policy is permanent.

In Bey v. Virginia, 2014 U.S. Dist. LEXIS 39636 (ED VA, March 20, 2014), a Virginia federal district court dismissed a complaint by a Moorish American Moslem inmate that he was denied a vegetarian diet, and that in court proceedings, the judge told him to remove his "religious national headdress," did not use his "free national name," and called him "black"instead of Moor.

In Plummer v. Riley, 2014 U.S. Dist. LEXIS 40654 (D SC, March 26, 2014), a South Carolina federal district court adopted most of a magistrate's recommendations (2014 U.S. Dist. LEXIS 42250, Feb. 26, 2014), and permitted a Rastafarian inmate to proceed with his complaint that he must sign up to attend religious services, cannot attend Rastafarian study groups and was suspended from chapel by the chaplain in retaliation for filing a grievance against him for his not allowing Rastafarians to celebrate Kwanza.

In Ballard v. Johns, 2014 U.S. Dist. LEXIS 41069 (ED NC, March 27, 2014), a North Carolina federal district court dismissed a complaint by a Catholic civil detainee held as a sexually dangerous person that he was denied religious services while in administrative segregation.

In Dunn v. Kentucky Department of Corrections, 2014 U.S. Dist. LEXIS 41640 (WD KY, March 28, 2014), a Kentucky federal district court dismissed a complaint by an Odinist (Astaru) inmate (1) that he is only allowed to buy the Thor's Hammer medallion that is available from the approved vendor, and it is of poor quality and features Celtic artwork; and (2) he is not permitted to own a set of personal rune stones.

A Comic Strip Commentary on Hobby Lobby

The Strip in today's New York Times Sunday Review is titled Fun With Corporate Conscience Clauses.  It is a comic-strip commentary on the Hobby Lobby case, corporate free exercise rights and religious conscientious objection which readers will find either immensely humorous or immensely offensive depending on one's views on the issues involved.

Suit Challenging Ohio's Refusal to Recognize Same-Sex Marriage Dropped When Couple Gets Family Health Insurance Policy

AP reports that a gay couple in Cleveland on Friday voluntarily dismissed a lawsuit they had filed last month challenging Ohio's refusal to recognize same-sex marriages.  Al Cowger Jr. and Tony Wesley Jr., who were married in New York state in 2012, sued when they were unable to obtain family health insurance coverage for themselves and their adopted daughter through the federal health insurance marketplace. They were initially told that a family policy was not available because Ohio does not recognize their marriage.  However this week they were finally able to obtain a family policy through the Healthcare.gov website. On March 14, the Department of Health and Human Services told insurance companies that starting next year, if they offer policies to opposite-sex spouses, they cannot choose to deny coverage to same-sex spouses.

Lutheran Affiliated Senior Housing Not Entitled To Property Tax Exemption

In Meridian Village Association v. Hamer, (IL App., March 28, 2014), an Illinois appeals court upheld the Illinois Department of Revenue's denial of a property tax exemption to a senior housing facility that was affiliate with Lutheran Senior Services.  It found that appellants had not shown their property is used exclusively for charitable purposes, nor is it used exclusively for religious purposes:

While the retirement community allows members of the Lutheran Church an opportunity to act out and evangelize their religion in the context of caring for seniors, the operation of the facility is not necessary to promote their religion, because that can be accomplished through other means. Other than caring for the elderly in a faith-inspired manner, there was little evidence of actual religious activity on the property.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

Pakistani Court Sentences Christian Man To Death For Blasphemy

Reuters reported yesterday that a Pakistani court has convicted Sawan Masih of blasphemy and sentenced him to a fine and to death by hanging. Masih, a Christian, was charged with blasphemy last year after he allegedly made remarks against the Prophet Mohammed when he got into an argument with two men while drinking.  The incident led to Muslims burning down nearly 100 homes of Christians in Lahore. (See prior posting.) At least 16 people are on death row in Pakistan for blasphemy, but none have in fact been executed. 20 others are serving life sentences.

Judge Calabresi Interviewed On Establishment Clause

Religion & Politics yesterday published an interview with Guido Calabresi, senior judge on the U.S. 2nd Circuit Court of Appeals and former dean of Yale Law School, on his views of the Establishment Clause. Judge Calabresi authored the 2nd Circuit's opinion in Galloway v. Town of Greece, the legislative prayer case (see prior posting) that was argued this term and is awaiting decision by the U.S. Supreme Court.  Describing the 2nd Circuit's opinion, Calabresi said:

We took the position that a non-sectarian prayer is either a contradiction in terms or is an establishment. It is an establishment of the “okay” religions. Of “what we are all agreed on.” What we wanted to do was to find a way of allowing people to pray without having a town define itself as Christian—which was the claim about this case. But, keep in mind that, in our circuit, we also have Kiryas Joel, a town that wants to define itself as Satmar, a particular sect of the Jewish faith. In other words, we have many forms of the desire for self-definition, of the desire to say, in religious terms, “We are something.” What we came up with was the notion that a town can do anything it wants so long as it is open to every religion and non-religion.

U.S. Catholic Diocese Sues Diocese In Ireland Over Transfer of Abusive Priest

AP reported yesterday that an unusual lawsuit has been filed in court in Ireland by the U.S. Catholic diocese of New Ulm, Minnesota. The suit was filed in February against Diocese of Clogher in Ireland and the religious order, Servants of the Paraclete, alleging that in 1981 the Irish diocese transferred a priest, Rev. Francis Xavier Markey, to Minnesota without warning U.S. church officials that he had been accused of sexual abuse. The New Ulm diocese has been sued by a victim of Markey's.

Contempt Motion Filed Against Google Over "Innocence of Muslims" Video

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. According to Hollywood Reporter, on Tuesday Cindy Garcia filed an emergency contempt motion (full text) with the 9th Circuit. The motion claims that a version of the video is still available on Google's worldwide platform, and is viewable in Egypt where a fatwa was issued for Ms. Garcia's execution.  According to the motion, Google insists that Ms. Garcia has the burden of informing it of every URL on its platforms that has the video before Google has an obligation to take it down. The motion also claims that Google has not taken down any copies of the video, but has merely disabled it so that the viewer sees a thumbnail and an explanation from Google.  In the meantime, Google is seeking en banc review of the 9th Circuit's decision.

Obama and Pope Francis Meet At The Vatican

As reported by AP, President Obama today met with Pope Francis at the Vatican. The Vatican Press Office issued a statement (full text) after the meetings, reading in part:

During the cordial meetings, views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved. In the context of bilateral relations and cooperation between Church and State, there was a discussion on questions of particular relevance for the Church in that country, such as the exercise of the rights to religious freedom, life and conscientious objection, as well as the issue of immigration reform. Finally, the common commitment to the eradication of trafficking of human persons in the world was stated.

The White House released excerpts from the President's press conference on his audience with the Pope.  They read in part:

... [W]e had a wide-ranging discussion.  I would say that the largest bulk of the time was discussing two central concerns of his.  One is the issues of the poor, the marginalized, those without opportunity, and growing inequality.... 

And then we spent a lot of time talking about the challenges of conflict and how illusive peace is around the world....  I reaffirmed that it is central to U.S. foreign policy that we protect the interests of religious minorities around the world....

In terms of domestic issues, the two issues that we touched on -- other than the fact that I invited and urged him to come to the United States, telling him that people would be overjoyed to see him -- was immigration reform.... I described to him how I felt that there was still an opportunity for us to make this right and get a law passed.

And he actually did not touch in detail on the Affordable Care Act.  In my meeting with the Secretary of State, Cardinal Parolin, we discussed briefly the issue of making sure that conscience and religious freedom was observed in the context of applying the law.  And I explained to him that most religious organizations are entirely exempt.  Religiously affiliated hospitals or universities or NGOs simply have to attest that they have a religious objection, in which case they are not required to provide contraception although that employees of theirs who choose are able to obtain it through the insurance company.

And I pledged to continue to dialogue with the U.S. Conference of Bishops to make sure that we can strike the right balance, making sure that not only everybody has health care but families, and women in particular, are able to enjoy the kind of health care coverage that the AC offers, but that religious freedom is still observed.

District Court Enjoins Sectarian Invocations At County Council Meetings

In Hake v. Carroll County Maryland, (D MD, March 26, 2014), a Maryland federal district court granted a preliminary injunction barring Carroll County, Maryland commissioners opening their commission sessions with sectarian prayer.  Currently sessions are opened with a prayer led by one of the commissioners, on a rotating basis. The Board's voluntary guidelines for commissioners calls for them to "refrain from using Jesus, Jesus Christ, Savior, Prince of Peace, Lamb of God and the like."  However, during 2011-2012, at least 40% of the invocations contained sectarian Christian references, while no prayers made non-Christian sectarian references.  In finding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the court said in part:

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners.... At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

The court ruled that Commissioners can continue to deliver non-sectarian invocations, but are enjoined from invoking the name of a specific deity associated with any specific faith or belief in their opining prayers. The American Humanist Association in a press release calls the decision "a major victory for separation of church and state."  The Baltimore Sun reports on the decision.  The U.S. Supreme Court this term has heard oral arguments in a case raising similar issues, and will decide the case within the next few months. (See prior posting.)

UPDATE: A March 27 release from the American Humanist Association says that a Carroll County commissioner defied the preliminary injunction and delivered a sectarian prayer at a county council meeting one day after the preliminary injunction was ordered. The AHA sent a contempt warning letter (full text) to counsel stating in part: "As a courtesy, we are going to refrain from seeking contempt charges against the commissioner in this one instance, in the hopes that today’s behavior was simply an emotional outburst made without the benefit of serious consideration of the rights of plaintiffs and others. She should understand, however, that any continued defiance of the court order will leave us with no choice but to seek a contempt order."

Religious Non-Profits Win Injunction Against Contraceptive Coverage Mandate Opt-Out Rules

In a 91-page opinion in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, March 26, 2014), a Georgia federal district court permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to execute and deliver a self-certification form to the third-party administrator of their health care plans.  Final Rules under the Affordable Care Act require the self-certification for objecting religious non-profits to opt out of the requirement to provide coverage for contraceptive services.

The court concluded that the Final Rules impose a substantial burden on plaintiffs' free exercise rights under RFRA:

... [T]he plain terms of the Final Rules show that the purpose and effect of the self-certification form is to enable the provision of contraceptive coverage. The self-certification form is an integral part of the Government’s contraceptive coverage scheme..... [I]t is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections.....

The Court’s conclusion does not change even if the Government had argued, as it did in other cases, that it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage.... It is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it....

The court also concluded that the government had not shown a compelling interest for imposing the substantial burden:

The Government claims that exempting CENGI and Catholic Charities from the contraceptive mandate would hinder its ability to effectively and uniformly administer the requirements of the ACA. That claim is discredited by the Government’s advocacy in other church plan cases in which it has argued that plaintiffs lack standing because self-certification will not necessarily result in the delivery of contraceptive products and services..... 

The Government’s interests in promoting public health and providing women with equal access to health care also cannot be compelling because the contraceptive mandate does not apply to the insurance plans of millions of women in this country.... Grandfathered health plans, small businesses and religious employers are all exempt from the contraceptive mandate....

Finally the court concluded that the provision barring non-profits from seeking to influence the third party administrator's decision to provide contraceptive services is a presumptively invalid, content-based restriction on speech. Daily Report covers the decision.

NYC Transit Authority Must Pay $187,000+ In Plaintiffs' Attorneys Fees In Religious Discrimination Suit

In Small v. New York City Transit Authority, 2014 U.S. Dist. LEXIS 39582 (ED NY, March 25, 2014), a New York federal district court ordered the New York City Transit Authority to pay $187,570 in attorneys fees and $1450 in costs to two Muslim women who has sued the Transit Authority for religious and gender discrimination.  In the lawsuit:

Plaintiffs alleged that defendant removed them from passenger service as bus operators because they wore Muslim head coverings called khimars and refused to wear a hat to cover their khimars.

The suits, after being consolidated with 3 others raising similar claims on behalf of Muslim and Sikh drivers, were settled, granting damages, a new policy on wearing khimars and return of plaintiffs to their jobs.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Suit Over Church's Board

In Ivanov v. Notzkov, 2014 Ill. App. Unpub. LEXIS 577 (IL App., March 25, 2014), an Illinois Court of Appeals affirmed the trial court's reliance on the ecclesiastical abstention doctrine in dismissing a lawsuit  between two factions of St. John of Rila Bulgarian Eastern Orthodox Church.  The court refused to order a membership meeting to elect a new board, relying on the trial court's findings that St. John's is governed by the Bulgarian Eastern Orthodox Church which gave the parish priest and archbishop authority to determine who are members in good standing that may vote in an election for the church's board. The trial court had concluded that passing on plaintiffs' claim that the clergy did not have the power to appoint members to the board of trustees would require it to decide matters of religious doctrine and polity.

Former Scientologist Sues Church For Return of Funds

Courthouse News Service reported yesterday on a lawsuit filed recently in a California state trial court against the Church of Scientology and a number of its affiliates. Plaintiff Vance Woodward, an attorney, seeks return of $200,000 he paid for "auditing" courses he never received, as well as punitive damages.  He contends that the Church took thousands of dollars from him and others through claims that Scientology would bestow superhuman powers on them. In total he turned over $600,000 to the church, $200,000 of which went for allegedly shoddy courses that were useless or harmful.  He claims the Church obtained his funds through psychological manipulation and abuse.

Community College Student Preacher Challenges Campus Speaker Rules

The Hampton Roads (VA) Daily Press reported yesterday on a lawsuit filed earlier this month by a Christian student against the board of the Virginia Community College System, the Hampton, Virginia-based Thomas Nelson Community College and various college officials.  The complaint (full text) in Parks v. Members of the State Board  of the Virginia Community College System, (ED VA, filed 3/13/2014), challenges the constitutionality of college rules that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance.  Plaintiff, Christian Parks, was stopped after he began preaching in an open courtyard area on campus. The suit claims that the campus speaker rules violate the free speech, free exercise and due process clauses of the Constitution.

Tennessee Legislature Passes Student Religious Viewpoints Antidiscrimination Act

On March 24, the Tennessee General Assembly gave final passage to HB 1547 as amended, the Religious Viewpoints Antidiscrimination Act. The bill, which now goes to the governor for signature, requires schools to treat student voluntary expression of a religious viewpoint on an otherwise permissible subject the same as secular viewpoints are treated.  Schools must adopt a policy to prevent discrimination against religious viewpoints where students are chosen to speak at a school event. Students must be permitted to express their written beliefs about religion in homework and classwork, and may not be penalized or rewarded because of the religious content. Students must be allowed to sponsor religious student clubs and activities to the same extent as students are allowed to sponsor secular clubs and activities. The bill passed the House by a vote of 90-2, and passed the Senate by a vote of 32-0. The Advocate reports that the ACLU is urging Gov. Haslam to veto the bill.

California Enacts Special Exemption To Allow Abbot To Be Buried On Monastery Grounds

In California, Gov. Jerry Brown yesterday signed SB 124 which grants a special exemption to allow Abbot Theodor Micka, a co-founder of Holy Cross Monastery, to be buried on the monastery’s grounds. (Press release from Sen. Ellen Corbett.) Holy Cross is the only Orthodox Christian monastery in the San Francisco Bay Area. As reported by the San Francisco Chronicle, 75-year old Micka, now seriously ill, has lived at the monastery for nearly 35 years, and one of his last wishes was to be buried there.  The special exemption was needed because state law only allows burial permits to be issued for burial in a cemetery. [Thanks to James Sonne for the lead.]

Transcript and Summaries of Hobby Lobby Arguments In Supreme Court Today

The full transcript of the oral arguments earlier today in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius is now available from the Supreme Court's website.  Extensive reports on the oral arguments are available from Lyle Denniston (SCOTUS Blog) and the Washington Post,

UPDATE: Here is the audio of the oral arguments.

Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

Courthouse News Service yesterday reported on a Title VII  religious discrimination lawsuit filed in Texas federal district court by the former director of marketing communications for a wireless network services company. Plaintiff Jef Mindrup, a Buddhist, claims he was fired because he refused to comply with a request by the company's co-founder that he add Biblical verses to the company's daily newsletter. His lawsuit alleges that the company "fail[ed] to accommodate plaintiff on the basis of his religion by requiring him to proselytize the Christian religion, a religion other than his own."

Court OK's Firing of 3 By Adventist University For Violating Church Doctrine

Last week the Riverside, California Press-Enterprise reported on a March 5 decision by a Riverside County Superior Court judge dismissing a lawsuit against Seventh Day Adventist-affiliated La Sierra University by the school's former vice president of development; former Arts and Science dean, and a former biology professor.  The three were pressured by the University's board president into resigning after they made derogatory remarks about church officials and violated church teachings on the consumption of alcohol.  School officials found out about remarks the three made when a conversation between them that had been recorded fell into officials' hands. (Transcript of conversation.) The trial court said in part: "the church is entitled to make its own decisions about how to respond when employees of a church-run school are deemed to have violated SDA (Seventh-day Adventist) doctrine."

A comment on the decision published by ReligiousLiberty​.TV contends:

While the official line was that the three plaintiffs had been caught drinking alcohol on an audio recording the real motivation had more to do with the heretofore untouched issue of creationism.  Two of the plaintiffs were outspoken critics of the Adventist view of literal creationism and the lawsuit revealed the concerns that church leadership has had regarding the way that Adventist beliefs had been downplayed at La Sierra.

UPDATE: Here is the full transcript of the March 5 summary judgment hearing in the case, Kaatz v. Graham.

City Council Members Have Legislative Immunity In Suit Over Zoning Vote

In American Islamic Center v. City of Des Plaines, (ND IL, March 24, 2014), an Illinois federal district court held that city council members are entitled to absolute legislative immunity from a suit against them for their vote against a zoning map amendment that would have permitted an Islamic center to build in an area currently zoned for manufacturing.  The Islamic Center's free exercise and equal protection claims can proceed only against the city itself. The court held that it need not decide at this juncture whether the Illinois Tort Immunity Act applies to claims under the Illinois Religious Freedom Restoration Act.  It permitted plaintiff to proceed with its claim that the zoning decision was arbitrary and capricious in violation of the state constitution.

Appeals Court Approves Transgender Name Change Over Trial Judge's Religious Objections

In In the Matter of the Application of James Dean Ingram To Change His/Her Name, (OK App., March 21, 2014), the Oklahoma Court of Civil Appeals reversed a trial court judge's refusal to allow transgender petitioner, who was in the process of a sex transition from male to female, to change her name from from James Dean Ingram to Angela Renee Ingram.  The appeals court held that the trial judge abused his discretion when he concluded that the name change was sought for an illegal or fraudulent purpose.  According to AP, the trial court judge, Oklahoma County District Judge Bill Graves, citing Biblical passages, had said:   "[A] sex change cannot make a man a woman or a woman a man.... The DNA code shows God meant for them to stay male and female."  The Oklahoma ACLU issued a press release announcing the Court of Civil Appeals' decision. In 2012, the appeals court reversed a similar denial by the same judge. (See prior posting.)

Britain's Law Society Taking Heat For Guidance To Lawyers On Drafting Wills For Muslim Clients

The Telegraph reports today that members of Britain's Parliament are calling for an investigation by the House of Commons into a March 13 Practice Note issued by The Law Society to assist British solicitors whose clients ask them to draw up wills that comply with Sharia law. (Full text of Sharia succession rules Practice Note.) Some are accusing The Law Society of giving its stamp of approval to wills that deny women an equal share of an estate and exclude "illegitimate" children or unbelievers.  The Law Society says it was merely responding to requests from lawyers for guidance in helping Muslim clients carry out their wishes.

Recent Articles of Interest

From SSRN:

• Daniel Schick, Keeping Up with the Principle of Neutrality: Why Courts Should Not Extend Elmbrook's Mistaken Establishment Clause Analysis, (Mississippi Law Journal, Vol. 84, Forthcoming).
• Philip Hamburger, Equality and Exclusion: Religious Liberty and Political Process, (March 10, 2014).
• Ronan McCrea, European Law and the Prohibition of the Veil, (March 4, 2011).
• Andra le Roux-Kemp, A Question of Life and Death, (Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89).
• W. Cole Durham, Robert Theron Smith & William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions, (March 14, 2014).
• James E. Wheeler, God, Guns and Others: Why Restrictions on Carrying Firearms in Church Conflict with a Moral Duty to Defend Others, (March 11, 2014).
• Benjamin L. Berger, Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion, (Osgoode Legal Studies Research Paper No. 16 (2013)).
• Benjamin I. Berger, The Virtues of Law in the Politics of Religious Freedom, (Journal of Law and Religion, Vol. 29, No. 3, 2014).
• Malick W. Ghachem, Religious Liberty and the Financial War on Terror, (First Amendment Law Review, Vol. 12, No. 1, 2013).

From SmartCILP:

• Max Guirguis, A Coat of Many Colors: The Religious Neutrality Doctrine From Everson to Hein, [Lexis link],  43 Stetson Law Review 67-118 (2013).

Background Sources For Tomorrow's Supreme Court Arguments in Hobby Lobby/ Conestoga

Tomorrow the U.S. Supreme Court hears oral arguments in the Hobby Lobby Stores and Conestoga Wood Specialties, Inc. cases-- two high profile religious freedom challenges by for-profit businesses to the Affordable Care Act contraceptive coverage mandate.  For those who want an introduction, a refresher, or further resources on the numerous and difficult legal and political issues involved in the cases, here are some sources:

• All briefs (parties and amici) in Hobby Lobby.
• All briefs (parties and amici) in Conestoga Wood Specialties.
• Lyle Denniston, Argument preview: Religion, rights, and the workplace (Scotus blog).
• Scotus blog's Contraceptive Mandate Symposium.
• Becket Fund's Resource Page on Hobby Lobby.
• Marty Lederman's Compendium of posts on Hobby Lobby and related cases from Balkinization blog.

6th Circuit, Critical of U.S. Marshals, Still Upholds Qualified Immunity In Seizure For Planned Parenthood Judgment

In Bray v. Planned Parenthood Columbia-Willamette, Inc., (6th Cir., March 21, 2014), the U.S. 6th Circuit Court of Appeals in an opinion highly critical of the U.S. Marshals Service and others nevertheless upheld the dismissal on qualified immunity grounds of a suit against two U.S. Marshals over a raid they conducted.  Planned Parenthood had obtained an $850,000 judgment against Michael Bray, a minister and anti-abortion activist who authored the book A Time To Kill,  and  previously spent 4 years in prison for his connection with bombings of abortion clinics.. (Background.) This lawsuit grew out of the execution of a writ to seize property to satisfy Planned Parenthood's judgment.  The writ specifically authorized seizure of Bray's computers, cameras, books and writings. Representatives of Planned Parenthood went along with the marshals  The 6th Circuit said:

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than  like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas....

Nonetheless, the officers are protected from suit by the doctrine of qualified immunity, because these constitutional rights were not clearly established at the time of the violations.... [T]he legal and factual scenario presented in this action is not identical to any the Sixth Circuit or the Supreme Court has previously addressed....

Couple Awarded $5.3M For Lengthy Denial of Utilities By FLDS Church

Last Thursday, a jury in an Arizona federal district court awarded damages totaling nearly $5.3 million to Ronald and Jinjer Cooke who sued after towns controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints in 2008 denied them access to water, sewers and electricity for the home they were building.  The Salt Lake Tribune reports the Cookes argued that the mostly polygamous towns of Colorado City, Ariz., and Hildale, Utah discriminated against them because they are not members of the FLDS Church. They eventually got electicity and sewage, but are still being denied water. The cities say that the Cookes moved in as a test case for the state of Utah's efforts to reform the trust that holds FLDS land in the cities. (See prior related posting.)

NYT Profiles Obama's Early Catholic Connections As Meeting With Pope Approaches

In anticipation of President Obama's March 27 visit to the Vatican, today's New York Times carries a long front-page article titled: The Catholic Roots of Obama’s Activism. Here is an excerpt:

[I]n the spring of 1987, Mr. Obama — himself not Catholic — was already well known in Chicago’s black Catholic circles. He had arrived two years earlier to fill an organizing position paid for by a church grant, and had spent his first months here surrounded by Catholic pastors and congregations. In this often overlooked period of the president’s life, he had a desk in a South Side parish and became steeped in the social justice wing of the church, which played a powerful role in his political formation.

This Thursday, Mr. Obama will meet with Pope Francis at the Vatican after a three-decade divergence with the church. By the late 1980s, the Catholic hierarchy had taken a conservative turn that de-emphasized social engagement and elevated the culture wars that would eventually cast Mr. Obama as an abortion-supporting enemy....  A White House accustomed to archbishop antagonists hopes the president will find a strategic ally and kindred spirit in a pope who preaches a gospel of social justice and inclusion..... 

But the Vatican — aware that Mr. Obama has far more to gain from the encounter than the pope does, and wary of being used for American political consumption — warns that this will hardly be like the 1982 meeting at which President Ronald Reagan and Pope John Paul II agreed to fight Communism in Eastern Europe.

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.

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."

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.]

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."

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.

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.

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.]

Recent Articles and Books of Interest

From SSRN:

• Ratna Kapur, A Leap of Faith: The Construction of Hindu Majoritarianism in Secular Law, (113 (1) South Atlantic Quarterly 109-128 (2014)).
• Pamela Foohey, Perspectives on Religious Organizations' Reorganizations, (87 American Bankruptcy Law Journal (2014 Forthcoming)).
• Mary E. McMahon, May I Be Excused? Smith's Individualized Governmental Assessment Exception and the HHS Mandate, (Journal of Catholic Legal Studies, 2014).
• Eric Segall, Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause, (Northwestern University Law Review Online, Vol. 108, 2014).
• Tyler Antone Le Fevre, Gender and the Institutional Nature of Marriage, (March 11, 2014).

From SmartCILP and elsewhere:

• Evelyn Lincoln & Pascale Rihouet, Brands of Piety, 47 University of California Davis Law Review 679-703 (2013).
• USCIRF Policy Brief, Prisoners of Belief: Individuals Jailed under Blasphemy Laws, (March 2014).

Recent Books:

• J. Brent Walker, What a Touchy Subject!: Religious Liberty and Church-State Separation, (Nurturing Faith Inc., February 2014).
• John W. Compton, The Evangelical Origins of the Living Constitution,  (Harvard University Press, March 2014).
• Barry Rubin and Wolfgang G. Schwanitz, Nazis, Islamists, and the Making of the Modern Middle East, (Yale University Press, Feb. 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.

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.

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).