11th Circuit Interprets RLUIPA-- Damage Claims Permitted With Restrictions

In a 53-page decision handed down last Tuesday, the U.S. 11th Circuit Court of Appeals weighed in on important issues of damages under the Religious Land Use and Institutionalized Persons Act. While ultimately holding that denial of a crystal, a worship spot and a fire pit to a prisoner did not place a substantial burden on his practice of Odinism, in Smith v. Allen, (11th Cir., Oct. 2, 2007), the court held that the RLUIPA authorizes suits for damages. This was apparently the first ruling on the issue by a federal circuit court. However, according to the court, a prisoner plaintiff’s claims for monetary relief are significantly limited by the Prison Litigation Reform Act which precludes compensatory damages for solely mental or emotional injury. Also suits for damages may not be brought against officials in their personal capacities, but only in their official capacities—so that they are not liable for damages out of their personal assets.

In another portion of its opinion the court found that plaintiff’s reincarceration revived an injunctive claim that had initially been mooted by his release from prison. The Tuscaloosa News covered the decision which involved a prisoner held in an Alabama correctional institution. [Thanks to Derek Gaubatz for the lead.]

Parishioner Sues Priest Over Disparaging Homily Remarks

In McHenry County, Illinois, a Roman Catholic parishioner has filed a "false light" invasion of privacy lawsuit against Rev. Luis Alfredo Rios and Monsignor Daniel Hermes, both of St. Thomas the Apostle Parish, and against the Diocese of Rockford. Angel R. Llavona is asking for $50,000 in damages because of a sermon given by Fr. Rios. The incident began with Llavona left a message on Rios' answering machine telling him that "I have seen poor homilies, but yesterday broke all records." After their attempts to meet did not go well, Rios used the next Sunday's masses to play the answering machine message to the entire congregation. Then Rios commented to the congregation: "This is the person in charge of religious education here last year. That’s why it is no surprise to me we had the kind of religious education we had. That’s why we didn’t get altar boys. What should we do, should we send him to Hell or to another parish?" The Northwest Herald (Crystal Lake, IL) and the Daily Herald (Arlington Heights, IL) both report on the case.

Kentucky District Court Follows Up On 10 Commandments Lawsuits

A Kentucky federal district court has dismissed as moot a lawsuit challenging a 10 Commandments display in a Harlan County school. The student challenging the display no longer attends the school. The court also issued a complex ruling in the lawsuit against McCreary and Pulaski counties over their courthouse displays of the 10 Commandments in a Foundations of American Law exhibit. In 2005, the U.S. Supreme Court upheld the lower court's granting of a preliminary injunction against the displays. Yesterday's Louisville Courier-Journal reports that the district court refused to issue a permanent injunction in the case, since the Supreme Court held that in the future, the counties might be able to prove that they had purged themselves of their original religious purpose and were displaying the 10 Commandments only for secular purposes. However, the court also refused to permit the counties to restore the displays, finding that the counties had not yet eliminated their former religious motivation.

UPDATE: The full opinion in the case is now available: ACLU of Kentucky v. McCreary County,
2007 U.S. Dist. LEXIS 77338 (ED KY, Sept. 28, 2007).

Court Rejects 1st Amendment Challenge To Sex Offender Treatment

In Schnitzler v. Reisch, 2007 U.S. Dist. LEXIS 72938 (D SD, Sept. 28, 2007), a south Dakota federal court rejected a claim by a prison inmate that his required participation in a group sex offender program violated his religious beliefs by requiring him to engage in explicit sexual discussions and to view sexual images. The court held that "plaintiff's religious beliefs and the right to the free exercise of religion under the First Amendment do not prevent him from being required to fully participate in a purely sectarian sex offender treatment program. The government and the public have a 'vital' interest in full and meaningful participation and rehabilitation by convicted sex offenders in such programs." The court also construed plaintiff's complaint as raising a RLUIPA claim and ordered defendants to respond to that allegation.

Las Cruces Case Argued In 10th Circuit

On Monday, the U.S. 10th Circuit Court of Appeals heard oral arguments in Weinbaun v. City of Las Cruces, New Mexico in which plaintiffs are challenging the official symbol of Las Cruces-- three crosses surrounded by a sunburst. The lower court found no Establishment Clause problem with the emblem. (See prior posting.) The Las Cruces Sun News reports that the 10th Circuit arguments focused on whether a reasonable observer would believe the emblem to be an endorsement of religion.

Court Employees Sue To Use Jury Room For Bible Study

In San Diego, California yesterday, two Superior Court employees have filed suit to regain the right to use the court's jury room at lunch time for a Bible study group. Christian Newswire reports that court employees Mindy Barlow and Dalia R. Smith were denied permission to use the jury room or an empty court room, even though the Bible group had been meeting for six years using courthouse facilities. The complaint (full text) in Barlow v. Superior Court of California, (SD CA, Oct. 2, 2007) alleges that various First and 14th Amendment rights of plaintiffs have been infringed. It says defendants have permitted non-religious groups to use court facilities for non-court related events or meetings.

BBC Gives Inside Look At Nigerian Sharia Court

On Monday, BBC News posted a lengthy report on the operation of a Sharia court in the northern Nigerian state of Zamfara-- the first Nigerian state to introduce Islamic law. The report concludes:

Most of the people that I met in Zamfara said they welcomed Sharia. It has cut down drinking and violence, and the court is no longer an intimidating place of wigs and gowns, doing business in a language that they do not understand.

After six weeks in Zamfara, I can see how Judge Isah's court functions well as a small claims court for this rural Islamic society. But my reservations about Sharia remain the same. For me, the sticking points are still the floggings and the amputations, and the undeniably unfair treatment of women in rape and adultery cases.

Court Rejects Summary Judgment In Mosque's Land Use Challenge

In Albanian Associated Fund & Imam Arun Polozani v. Township of Wayne, 2007 U.S. Dist. LEXIS 73176 (D NJ, Oct. 1, 2007), a New Jersey federal district court refused to grant summary judgment to either side in a case in which developers of a mosque challenged a Township's attempt to take their property as part of an Open Space Plan. Plaintiffs claimed that the Township's actions violated RLUIPA and the First Amendment. The court held that the manner in which the plaintiffs' property was pursued supports an indication of discriminatory purpose. It also found that a question of fact exists as to whether the Township's actions created a substantial burden on the Mosque and as to whether it violated the nondiscrimination provisions of RLUIPA. Finally the court postponed until any trial the question of whether the protection of open space is a compelling governmental interest.

Irish Hospital Says No Right To Reject Transfusion On Religious Grounds

In Dublin, Ireland, Coombe Women's Hospital is claiming in a court suit that a woman's freedom of conscience and free exercise of religion are not a basis for the woman to decline appropriate medical treatment. Last September, the hospital convinced an Irish court to issue an emergency order permitting it to give a life-saving blood transfusion to a Jehovah's Witness who had lost blood in childbirth. Now, according to yesterday's RTE News, the Attorney General has been brought in as a defendant in the case. The Hospital claims that it had a duty to protect and safeguard the woman's right to life, and was obliged to protect the family life of the woman and her child and to protect the rights of her child to be nurtured and reared by his mother. The mother, identified only as Ms K, says the transfusion infringed her rights under the European Convention on Human Rights to refuse medical treatment.

GAO Issues Report On Military Conscientious Objectors

The Government Accountability Office has issued a report on the number of conscientious objector applications received by the U.S. military, and the handling of those applications. The GAO summary of the Sept. 28 report says:

During calendar years 2002 through 2006, the active and reserve components reported processing 425 applications for conscientious objector status. This number is small relative to the Armed Forces' total force of approximately 2.3 million servicemembers. Of the 425 applications the components reported processing, 224 (53 percent) were approved.... Each component's process is essentially the same, taking an average of about 7 months to process an application.... Officials from all the components stated that they attempt to temporarily reassign applicants to noncombatant duties while their applications are pending. Conscientious objector status is not considered when determining eligibility for benefits.... Of those 224 servicemembers whose applications were approved for conscientious objector status, 207 received honorable discharges....

The full text of the report is available online. A story in today's North Coast Times focuses on data from the report for CO's in the Marine Corps.

Three More Cert. Denials In Religion Cases

In addition to the two denials of cert. which were previously featured (1) (2), the U.S. Supreme Court also denied certiorari yesterday in three additional religion cases in its lengthy Order List. The additional denials are in:

Boggan v. Mississippi Conference of the United Methodist Church, (Docket No. 06-1459). The court below relied on the ministerial exception to Title VII of the 1964 Civil Rights Act to dismiss a claim by a pastor that he and other African-American pastors had not been promoted to higher paying church positions because of their race. (See prior posting.) The 5th Circuit Court of Appeals affirmed the district court in a short per curiam opinion last February.

Vision Church v. Village of Long Grove, (Docket No. 06-1497). The 7th Circuit Court of Appeals below rejected challenges to a special use permit requirement, and held that the involuntary annexation of Vision Church's land was not a land use regulation covered by RLUIPA. (See prior posting.)

Barrow v. Greenville Independent School District, (Docket No. 07-59). A 5th Circuit opinion below had rejected a claim that a policy of disfavoring public school teachers whose children attend private school imposed a disparate impact on those sending their children to religious schools. [Thanks to Blog from the Capital for the lead.]

U.S. Postal Service Reissues Eid Postage Stamp

Now that first class postage rates have gone up, the U.S. Postal Service has reissued its commemorative stamp honoring the Muslim holy days of Eid al-Fitr and Eid al-Adha. (Associated Press). The stamp first issued in 2001 is now available for 41-cent first class postage. [Thanks to Alliance Alert for the lead.]

Paper Reports On Mennonites and Liberty Bonds In World War I

Yesterday's edition of the New Philadelphia, Ohio Times Reporter carried an interesting article on the experience of Ohio Mennonite pacifists during World War I. Local newspaper editor Samuel H. Miller was convicted under the Espionage Act after he published an article by Mennonite Bishop Manasses Bontrager of Dodge City, Kansas. Bontrager argued that purchasing Liberty Bonds violated Mennonite teachings against violence and bloodshed. Bontrager was also tried in Ohio, and both defendants, who could have been sentenced to 20 years in prison, were merely fined $500. Meanwhile, local officials worked out a plan that allowed Amish and Mennonites to purchase Liberty Bonds indirectly, without violating their religious beliefs. Special bank accounts were created in which pacifists could deposit money for a ten year period. Then the bank used the funds to buy the bonds.

School Affiliated Foundation Criticized For Funding Christian-Themed Program

In Kimberly, Wisconsin, the nonprofit Positive Youth Development Foundation (PYDF), which is affiliated with the Kimberly Area School District, awards grants to promote youth and family development and prevent at-risk behaviors. Today's Appleton Post Crescent reports that the Freedom From Religion Foundation is questioning PYDF's role in sponsoring last week's Secret Keeper Girl Bod Squad Tour-- a program for girls in grades 3 to 6 created by Christian author Dannah Gresh-- that urges modest dress. The event was moved from Kimberly High School to a local church after a complaint from Americans United for Separation of Church and State. However the Foundation continued its $500 sponsorship.

Conservative Christian Leaders Threaten To Support Third-Party Candidate

The New York Times reported on Sunday that a group of prominent conservative Christian leaders meeting in Salt Lake City agreed that if the Republican Party nominates a pro-abortion candidate, they will consider supporting a yet-unnamed third-party contender for the Presidency. The resolution is aimed at Republican front-runner, Rudolph Giuliani, who supports abortion rights. Among those at the small meeting that made this decision were James Dobson of Focus on the Family; Tony Perkins of the Family Research Council; and direct-mail expert Richard Viguerie.

EEOC Sues For Discrimination: Muslim Woman Fired For Wearing Headscarf

The EEOC last week filed suit against Geo Group, a company that operates Pennsylvania's Delaware County Prison. MSN Money reported yesterday that the lawsuit claims Geo engaged in religious discrimination when it fired a Muslim prison nurse for wearing a headscarf to work. The company has denied other Muslim women exemptions from its dress code in the past. The EEOC says that Geo had an obligation to accommodate the religious practices of Carmen Sharpe-Allen and other female Muslim employees. [Thanks to Jack Shattuck for the lead.]

More Prisoner Free Exercise Cases Decided

In Shilling v. Crawford, 2007 U.S. Dist. LEXIS 70694 (D NV, Sept. 21, 2007), a Nevada federal district court held that a Jewish prisoner's Free Exercise and Equal Protection rights were not violated when prison authorities informed him that to satisfy his request for kosher meals, he would need to be transferred to a different correctional facility.

In Oakden v. Bliesner, 2007 U.S. Dist. LEXIS 70948 (ND CA, Sept. 21, 2007), a federal district judge rejected a First Amendment claim by a prisoner who was a member of the white-supremacist Church of the Creator. It found that plaintiff's requested raw food diet is a recommendation, but not a central requirement, for members of the Church.

In Keesh v. Smith, 2007 U.S. Dist. LEXIS 71165 (ND NY, Sept. 25, 2007), a New York federal district court upheld against Free Exercise and RLUIPA challenges a Department of Corrections requirement that a religion within the prison must have an outside sponsor in order to be recognized and approved for congregate services and classes. Plaintiff Tyheem Keesh was the founder and leader of the Tulukeesh religion, and sought to require prison authorities to accommodate its requirements for a special type of vegan diet, martial arts training, specific hygiene requirements, possession of religious items and a ban on strip searches of Tulukeesh members by prison staff.

In Hardaway v. Haggerty, 2007 U.S. Dist. LEXIS 71814 (ED MI, Sept. 27, 2007), a Michigan federal district judge adopted the recommendations of a federal magistrate, holding that prison officials had qualified immunity from damage claims in connection with their seizure from plaintiff of religious material from the Nation of Gods and Earths (NGE). However, plaintiff was permitted to proceed with his claim for an injunction seeking removal of the "Security Threat" designation given to NGE and challenging the taking of his NGE religious literature.

In Jaspar v. Moors, 2007 U.S. Dist. LEXIS 72116 (ED CA, Sept. 27, 2007), a California federal Magistrate Judge concluded that RLUIPA is applicable to claims seeking redress for individual retaliatory conduct of a prison chaplain who, plaintiff claimed, took action against him because he is Jewish.

In Izquierdo v. Crawford, 2007 U.S. Dist. LEXIS 71608 (ED MO, Sept. 26, 2007), a Missouri federal district court rejected a prisoner's claims that his rights under the First Amendment and RLUIPA were violated when the prison refused to provide religious services and programs for Shiite Muslims separate from those offered for Muslims in general that were led by a Sunni inmate.

Cert. Denied In Case On Exclusion of Worship Services From Library Room

The U.S. Supreme Court today denied cert. in a second church-state case, Faith Center Church v. Glover, (Docket No. 06-1633) (Order list.) In the decision below, a panel of the 9th Circuit held that the Contra Costa County, California, public library could make its meeting room available for "meetings, programs, or activities of educational, cultural or community interest", while excluding their use for "religious services". (See prior posting.) An en banc rehearing was denied by a sharply split 9th Circuit. (See prior posting.) AP reports on the cert. denial. [Thanks to Melissa Rogers for the lead.]

Cert Denied In NY Case On Contraceptive Coverage For Faith-Based Groups

The U.S. Supreme Court today denied certiorari in Catholic Charities of the Diocese of Albany v. Dinallo, (Docket No. 06-1550) (Order list.) Yahoo News reports on the case in which New York's highest court upheld a provision in the state's Women's Health and Wellness Act that requires faith-based organizations to include contraceptive coverage for women in any prescription plan that they offer employees. (See prior posting.) Twenty-two other states have similar laws. [Thanks to Brad Pardee via Religionlaw for the lead.]

DC Fire Department Must Allow Beards Worn For Religious Reasons

In Potter v. District of Columbia, (D DC, Sept. 28, 2007), the federal district court for D.C. held that under the Religious Freedom Restoration Act, the D.C. fire department may not enforce requirements to be clean-shaven on firefighters and paramedics who wear beards for religious reasons. At the heart of the dispute in the case was the question of the extent to which facial hair interferes with the effective operation of face masks that firemen sometimes need to use for respiratory health and safety. The court concluded that most of the time, firefighters used a self-contained breathing apparatus (with an air tank), and that beards did not pose a problem for these. At issue was whether bearded firefighters could safely use air purifying respirators in which they breathed in outside air. The court held that in the rare case that this was required, a less restrictive mans of accommodating those who wear beards for religious reasons is to reassign them away from duties that require that sort of respiratory system. Friday's Washington Post reported on the case. (See prior related posting.)