Recent Prisoner Free Excercise Cases

In Searles v. Bruce, (10th Cir., Feb. 15, 2007), the U.S. 10th Circuit Court of Appeals dismissed an appeal for lack of jurisdiction under the "collateral order" doctrine that allows an interlocutory appeal of a denial of qualified immunity only on questions of law. Here a Jewish prisoner claimed prison officials denied him use of tefillin and denied him a meaningful religious observance of the Jewish festival of Sukkot.

In Henderson v. Frank, 2007 U.S. Dist. LEXIS 11064 (WD WI, Feb. 15, 2007), a Wisconsin the court federal district court rejected an Establishment Clause claim brought by a Taoist prisoner. held that a policy that creates seven "umbrella religions" under which all other religions fall, is merely a system to manage the many faith traditions and does not give any particular benefit to some religions that is denied to others. It also held that the prison's refusal to purchase Taosit religious texts for the prisoner failed to raise a Free Exercise claim.

Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition

A bill has been introduced into the Maine legislature that would separate the religious role of clergy in performing marriage ceremonies from the legal recognition of marriage. The bill, LD 779, titled An Act to Remove Clergy as Signatories on Marriage Licenses, was introduced by a legislator on behalf of Rev. Mark Rustin, a Congregationalist minister, who says that he does not want to be an agent for the state of Maine. The bill calls for the legal aspect of the marriage contract to be carried out by lawyers, justices, judges or notaries. Today's Village Soup Times reports that Rev. Rustin is concerned that the present role of clergy places them in a difficult position when they need help a couple get through a divorce. Also, he said, that sometimes older couples want the clergy’s blessing to live together, but do not want a legal marriage contract because they will then lose Social Security benefits. Some people think the bill will also impact the issue of same-sex marriages.

Challenge To Sale of Boston Land To Mosque Dismissed As Untimely

In Boston, a Superior Court judge has dismissed a lawsuit challenging on Establishment Clause grounds the sale of a parcel of land by the Boston Redevelopment Authority to the Islamic Society of Boston. The land was sold at a price well below its appraised value. Today's Boston Globe reports that the court held the appeal of the BRA's decision to be untimely. The judge found that the plaintiff was bound by the requirement that BRA decisions be appealed within 30 days. of the sale of the land. (See prior related posting.)

Union Has Independent Accommodation Requirement Under Title VII

United States v. State of Ohio, 2007 U.S. Dist. LEXIS 11895 (SD OH, Feb. 21, 2007), is an opinion on the award of attorneys fees to a Presbyterian state employee after he won a settlement in a suit brought on his behalf by the EEOC and the U.S. Department of Justice. The settlement allowed him to direct a portion of his union fees to a charity because of his opposition to the union's support of abortion and gay rights. (See prior posting.) In the course of its decision to award attorneys' fees, the court held that the union had an independent duty under Title VII of the 1964 Civil Rights Act to accommodate the employee's religious beliefs, even though state law (and a directive of the State Employee Relations Board) provided that the state would not do so. State law permitted accommodation of public employees who hold sincere religious objections to joining or financially supporting a union only when they belonged to a religion that historically held conscientious objections to such support.

Religious Defense In Charges Of Possessing Hawk Feathers

In Marietta, Ohio Municipal Court, Steve Coulter is defending against charges of possessing hawk feathers without a permit, arguing that he was using them for a Native American religious ceremony. Friday's Marietta Times reports that Coulter picked up two dead hawks found along the highway. Coulter, who was raised as a Baptist, is now he leader of a local Native American tribe, "The People’s Nation". The group uses hawk feathers to make fans to lift smoke and prayer during religious ceremonies.

Defiant Pastor Back In Georgia Supreme Court

The Associated Press reports today on a dispute between the pastor of a small church in Cedartown, Georgia and the deacons of the church. Last week the dispute was back in the Georgia Supreme Court for the third time. Bethlehem Missionary Baptist Church pastor Willie M. Bolden refuses to leave his post. In an earlier round of litigation, the court ordered a congregational vote on whether the deacons control the church's property. By a vote of 27-12, the congregants said they do.

Jewish Groups Testify In Favor Of Maryland Divorce Bill

The Institute for Public Affairs reports that last Thursday, representatives of a number of Jewish organizations testified before the Maryland legislature in favor of pending bills that would require courts to refuse to grant a civil divorce where Jewish husbands had not given their wives a religious divorce document ("get"). (See prior posting.) An opinion letter from Maryland's attorney general says that the legislation does not violate the Establishment Clause. Here is the written testimony presented by the Union of Orthodox Jewish Congregations of America.

Teachers Pray For Students' Success, and Create Controversy

A different kind of controversy over prayer in the classroom has broken out in Brooksville, Florida. Thursday's St. Petersburg Times reported that after school hours on a Friday night at the beginning of February, the principal and several staff members decided to pray for the success of Brooksville Elementary School students on the FCAT-- Florida's achievement tests. They offered Christian prayers and anointed the students' desks with prayer oil. Some teachers however mistook the episode for vandalism because on Monday morning the desks were still greasy from the oil. After some complaints and a conversation with superintendent Wendy Tellone, the school's principal said that future prayer meetings would be held off campus. An attorney for the Hernando County school system said that as long as the religious activities were not disruptive, the school cannot discriminate against people because of their religious practice. [Thanks to Dispatches from the Culture Wars for the lead.]

High Schooler's Religious Objections End Teacher's Creative Essay Assignments

Yesterday's Everett, Washington Herald reports that a Lake Stevens, WA high school teacher is in trouble for assigning creative essays to his students. Gary McDonald asked his students to write an essay to compare "World on the Turtle's Back"-- an Iroquois creation myth -- with other creation stories and their own concepts of good and evil. He asked them to discuss how that story, and how the creation account in Genesis, reflect the four functions of myth. In a later assignment he asked students to write on how evil can exist if God is good and all-powerful. One of McDonald's 17-year old students complained that the assignments were offensive to her Christian beliefs. The complaint came one day after McDonald-- after being asked by one of his students-- told the class he was an atheist. McDonald's principal reprimanded him and told him to eliminate material he had added to standard assignments in the textbook. McDonald says he was trying to prepare students for the study of Arthur Miller's "The Crucible," based on the Salem witch trials.

Spanish Court Upholds Right Of Chruch School To Fire Teacher

In Madrid, Spain, the constitutional court today upheld the right of a religious school to fire a teacher because she was separated from her husband and living with another man. Reuters reports the court ruled that religious authorities have the right to decide whether a teacher should be retained, and in doing so they can consider not only a person's knowledge of dogma and the person's teaching ability, but also the individual's personal behavior. It said that behavior may be a vital element since personal witness is a way of transmitting values. Dismissed teacher Maria del Carmen Galayo said that she will appeal the decision to the European Court of Human Rights.

Missouri Courthouse Bible Group Changes Location

At St. Charles County, Missouri Bible study group group that had met each week in the county courthouse has now moved to a room in the county administration building. After a complaint by a local attorney about the group's use of courthouse premises (see prior posting), Judge Matthew Thornhill who leads the study group decided on the move. Unlike the courthouse, the county administration meeting room is available for other groups to reserve as well. Yesterday's St. Louis Post-Dispatch quotes Thornhill as saying: "I sought the Lord, and I made the decision that I believe was best for the circuit."

California Suupreme Court Refuses To Hear Mt. Soledad Appeal

Yesterday, the California Supreme Court announced that it would not hear an appeal from a November decision by a state appellate court in the long controversy over the Mt. Soledad cross. The decision at issue here had rejected an Establishment Clause challenge to a vote by San Diego residents that authorized the city to donate its interest in the Mt. Soledad Veterans Memorial to the federal government. WorldNet Daily reports that the court's ruling in Paulson v. Abdelnour also denied a request by the ACLU to depublish the Court of Appeals opinion. Yesterday's San Diego Union-Tribune, reporting on the decision, quotes Jay Sekulow, chief counsel of the American Center for Law and Justice, who said that this decision effectively ends the state court litigation challenging the cross-- which is now owned by the federal government. Federal lawsuits, however, are still ongoing. [Thanks to Richard Watson for the lead.]

Egyptian Blogger Jailed For Insulting Islam

In Egypt on Thursday, Abdel Kareem Nabil, 22, a former law student at Al Azhar University, was sentenced to 3 years in prison for using his blog to insult Islam and the Prophet Muhammad, and inciting sectarian strife. He was sentenced to an additional year for insulting Egypt's president, Hosni Mubarak. The Herald (Glasgow, Scotland) today reports that Nabil, blogging under the screen name Kareem Amer, strongly criticized conservative Muslims after a 2005 Muslim attack on a Christian church over a play that Muslims found offensive. In March, Nabil was expelled from Al Azhar where he had been a law student. He has called Al Azhar the "other face of the coin of al Qaeda" and has called for the University to be dissolved or secularized.

Russian Student's Challenge To Teaching of Evolution Dismissed

In Russia on Wednesday, the Admiralty District Court in St. Petersburg dismissed a suit that had been brought by Maria Shreiber, a 16-year old student, who claimed that her rights were violated and her religious beliefs were insulted by her school's teaching of the theory of evolution. She wanted her school to offer alternatives to the treatment of evolution set out in her 10th-grade biology textbook. Wednesday's International Herald Tribune reported that Schreiber has now dropped out of school after receiving low grades that her father attributed to teachers who were prejudiced against Maria. Schreiber's father, Kirill Schreiber, told the press, "Our task remains the same: to dethrone Darwin's theory." (See prior posting.)

Muslim Police Officer's Discrimination Claim Dismissed On Procedural Grounds

In Webb v. City of Philadelphia, 2007 U.S. Dist. LEXIS 11762 (ED PA, Feb. 20, 2007), a Muslim woman police officer brought four discrimination charges against the Philadelphia police department after it refused to allow her to wear khimar (Muslim head covering). In this decision the court dismissed two of those charges on procedural ground. Her Title VII claim of sex discrimination based on the fact that the department granted religious accommodations for men to wear beards was dismissed because that charge had not been presented to the EEOC. Her state claim of religious discrimination under Pennsylvania's Religious Freedom Protection Act was dismissed because she had not given the city the required statutory notice of her claim before filing suit.

Suit Challenges Jacksonville's Permit Requirement To Feed Homeless

In Jacksonville, Florida last week, Michael J. Herkov, an associate professor at North Florida University filed a federal lawsuit challenging the constitutionality of a city ordinance that requires a permit in order to hand out food to the homeless. Yesterday's Florida Times-Union reports that Herkov alleges that the ordinance interferes with his carrying out a basic tenet of his Christian faith. City Assistant General Counsel Ernst Mueller says that the law is not directed at interfering with anyone's religion. It is intended to assure sanitation and toilet facilities where food is distributed and to protect the homeless population from dangers of spoiled food. But Herkov's attorney, Scott Fortune, says the law is so broadly worded that it could be construed to prevent serving someone coffee or a meal at one's home without a permit.

British School Girl Loses Battle To Wear Niqab

24dash.com yesterday reported that a British High Court has ruled against a 12-year old Muslim student who was challenging her Buckinghamshire school's ban on her wearing a niqab (full face veil). The student had argued that the ban violated her "legitimate expectation" and infringed her right to freedom of "thought conscience and religion" under the European Convention on Human Rights (Art. 9). The court, however, upheld the school, finding that the ban was "proportionate". The veil prevented teachers from seeing the pupil's facial expressions and so interfered with effective classroom interaction; the ban was necessary to enforce a school uniform policy so girls of different faiths would have a sense of equality and identity within the school; school security required the ban so that an unwelcome visitor could not move incognito around the school wearing a niqab; and the ban was necessary to avoid peer pressure on girls to start wearing the veil. Authorities have offered the student-- who is now being tutored at home-- a place at a different mixed school where wearing of the niqab is permitted, but she wants to go back to her original school. (See prior related postings 1, 2.)

Probationer With Religious Objections Permitted To Give Swab DNA Sample

The Violent Crime Control and Law Enforcement Act of 1994 creates a federal index of DNA samples from convicted offenders, crime scenes, and unidentified human remains. 42 USC Sec. 14135a (d) (1) requires probation officers to collect a DNA sample from individuals on federal supervised release. In United States v. Holmes, 2007 U.S. Dist. LEXIS 11597 (ED CA, Feb. 20, 2007), a California federal district court agreed with Elden Holmes who was on supervised release that he should be able to provide a buccal swab DNA sample rather than a blood sample because of his religious objections to having his blood drawn. The court found that under the Religious Freedom Restoration Act, drawing blood would impose a substantial burden on Holmes free exercise of religion, that the government lacks a compelling interest in requiring a blood sample instead of a cheek swab sample, and that forcing Holmes to submit to a blood-based DNA test is not the least restrictive means of achieving the government's compelling interest in obtaining his DNA profile.

Indiana Church's Zoning Challenge Rejected

In Digrugilliers v. Consolodated City of Indianapolis, 2007 U.S. Dist. LEXIS 11485 (SD IN, Feb. 15, 2007), and Indiana federal district court denied a preliminary injunction to a Baptist Church that was cited by the city for being in violation of zoning ordinances. The court rejected plaintiff's argument that requiring the Church to apply for a zoning variance unduly burdens its religious practice under the First Amendment and RLUIPA. The court found no basis to conclude that nonreligious land uses are treated more favorably than religious uses in seeking or receiving a variance. It said that religious land uses implicate land use concerns not posed by permitted uses such as community centers and auditoriums, including limiting the commercial viability of surrounding land because businesses such as liquor stores and adult bookstores cannot locate nearby. The court also rejected claims that the zoning ordinance infringed the Church's free expression rights, finding among other things that the ordinance is not a content-based restriction on speech. Finally it rejected claims under the Equal Protection clause and RLUIPA's anti-discrimination provisions.

Schools' Barring of Student Religious Literature Found Unconstituitonal

In Morgan v. Plano Independent School District, 2007 U.S. Dist. LEXIS 11557 (ED TX, Feb. 20, 2007), a Texas federal Magistrate Judge issued proposed findings in a case challenging policies in two Plano, Texas elementary schools that prohibit students from distributing invitations and tickets to church events to fellow students and prohibit them from giving fellow students pencils, brownies and candy cane pens with religious messages. The court held that the allegations, if proven, demonstrate that a number of the defendants engaged in unconstitutional viewpoint discrimination in banning religious viewpoint material while permitting students to distribute secular material to their classmates. The findings recommended the denial of motions to grant qualified immunity to those defendants. (See prior related posting.)

UPDATE: In a later proceeding in the same case at 2009 U.S. Dist. LEXIS 60179 (Feb. 27, 2009), the court denied qualified immunity to the school principal who stopped an elementary school student from passing out religious-themed pencils in the cafeteria and outside on school grounds during and after school hours.