Recent Prisoner Free Exercise Cases

In Peterson v. Price, 2007 U.S. Dist. LEXIS 75737 (ND WV, Sept. 28, 2007), a West Virginia federal district court accepted a magistrate judge’s recommendation to dismiss a federal prisoner’s Fist Amendment claims. Plaintiff complained that he had been removed from the prison’s kosher food program, but the court found that this was justified; he had purchased non-kosher food from the commissary. The court also agreed that the failure to furnish plaintiff a kosher bag lunch during two mock lockdowns did not rise to the level of a constitutional violation.

In Tafari v. Annets, 2007 U.S. Dist. LEXIS 76017 (SDNY, Oct. 15, 2007), a New York federal Magistrate Judge recommended that an inmate be permitted to proceed with his claim that his free exercise rights were violated when on five separate occasions he was denied kosher food while in transit between prison facilities. The magistrate recommended dismissal of a number of other claims.

In Farnsworth v. Baxter, 2007 U.S. Dist. LEXIS 72209 (WD TN, Sept. 26, 2007), a Tennessee federal district judge denied defendant’s motion to dismiss a RLUIPA claim brought by a prisoner who complained about the failure to provide Messianic Jewish religious services. Defendant had argued that damages are not available under RLUIPA in suits brought against officials in their individual capacities.

In Cruz v. Scribner, 2007 U.S. Dist. LEXIS 76423 (ED CA, Oct. 3, 2007), a California federal Magistrate Judge dismissed, subject to the right to file an amended complaint, claims by a Native American prisoner that he was denied the right to participate in the annual Pow-Wow, Banquet and Sweat Ceremony that is part of his religion. Plaintiff failed to allege any link between the named defendants and his free exercise, equal protection and RLUIPA claims.

In two nearly identical opinions, a California federal district court held that plaintiff prisoners must specifically allege how their religious rights are being violated in the institution where they are incarcerated instead of making broad and generic allegations about policies or practices at all other California prison facilities. The cases are Bonner v. Tilton, 2007 U.S. Dist. LEXIS 76932 (ED CA, Oct. 2, 2007) and Green v. Tilton, 2007 U.S. Dist. LEXIS 76925 (ED CA, Oct. 2, 2007).

In Jones-el v. Pollard, 2007 U.S. Dist. LEXIS 77505 (ED WI, Oct. 18, 2007), a Wisconsin federal district court permitted an inmate to move ahead with a variety of claims under the First Amendment and RLUIPA. Plaintiff charged that he was prevented from observing Ramadan, was deprived of Islamic publications, was prevented from possessing prayer oil and a prayer rug while in segregation, and was denied Halal meals. He also alleged that prison authorities favor Christianity over Islam by employing full-time Christian chaplains and using Christian chapels.

USCIRF Report Criticizes Lack of Progress On Religious Liberty In Saudi Arabia

Yesterday, the U.S. Commission on International Religious Freedom released a long report (full text) that is highly critical of Saudi Arabia for failing to implement promised reforms designed to protect human rights, including the free exercise of religion. USCIRF recommended that the U.S. government strengthen its human rights diplomacy with the Saudis and address Saudi exportation of extremist ideology, hatred and intolerance in educational material sent around the world. The report also recommended a number of other steps to further religious liberty in Saudi Arabia, including dissolving of the Commission to Promote Virtue and Prevent Vice. A widely circulated AP article focuses on a recommendation in the report that the Islamic Saudi Academy, a private K-12 school in Fairfax County, Virginia, be closed down until the school's textbooks can be reviewed. [Thanks to Melissa Rogers for the lead.]

Power of Traditional Rabbinic Authorities In Israel Continues To Be An Issue

In Israel, the battle to liberalize Rabbinic courts continues. Yesterday's Jerusalem Post reports that several women's rights groups along with a group of progressive Orthodox rabbis have filed suit in the High Court of Justice challenging the recent appointment of 19 new judges to the Rabbinic courts. (See prior posting.) The 60-page petition claims nepotism, political pressure and procedural errors in the appointments. Underlying the lawsuit are concerns over how the traditional haredi judges will deal with women's rights in divorce proceedings.

Meanwhile, in another attempt to maintain the authority of traditional Rabbinic bodies, Israel's Chief Sephardic Rabbi, Shlomo Amar, arrived in the United States this week to oversee the Rabbinical Council of America's appointment of religious court judges to its conversion courts. Amar has ordered that only conversions by special Orthodox Jewish tribunals that he has approved should be recognized in Israel. JTA reports on these developments. (See prior related posting.)

Egyptian Muslim Fundamentalist Sues To Enforce His Views

Today's Wall Street Journal profiles Egyptian cleric Yusuf El-Badry, a conservative Muslim who has "pioneered the practice of suing ministers, poets, academics and religious scholars in Egypt's courts to promote his strict interpretation of Islam." El-Badry's most recent lawsuit has been filed against Egypt's Minister of Health and Population challenging the country's ban on female circumcision. The Journal reports that El-Badry "isn't a trained attorney, but he prefers to argue his cases before the judge himself. With his flowing robes and white turban, he stands out in court, where attorneys typically wear suits. Intellectuals across the Middle East have railed against his crusade..."

TSA Gives More Flexibility In Inspections of Religious Headwear

Jurist reports that the U.S. Transportation Security Administration has heeded complaints of the Sikh community as to recently adopted rules on inspection of turbans worn by airline passengers. (See prior posting.) On Tuesday, the TSA announced revised screening procedures that include headwear in the broader category of "bulky clothing", rather than singling out headwear for special treatment. The new procedures still recommend removal of headwear, but permit other alternatives for those with religious or other objections to removing head coverings.

Some Falsely Cite Religious Reasons To Avoid Immunizing Their Children

A small but growing number of parents around the country are falsely claiming religious exemptions to avoid vaccinating their children who are entering school when the real reasons are concern over safety of the vaccines or fear that they may cause other illnesses. Reporting on the trend, an AP story earlier this week said that 28 states allow parents to opt out of immunizations only for medical or religious reasons, while 20 others also allow philosophical objections. Two give exemptions only on medical grounds.

EEOC Sues Over Employer's Failure To Accommodate Haj Trip

The EEOC has filed a lawsuit in a Tennessee federal court against Southern Hills Medical Center in Nashville alleging that it refused to accommodate a Muslim employee's request to use earned vacation time to make his Pilgrimage to Mecca. CCH reports that the suit filed last month claims the hospital would not grant extended leave to employee Wali Telwar. Instead it forced him to resign and unsuccessfully reapply after returning from the Haj.

Islamic Court Proposal Challenged In Tanzania's High Court

In Tanzania earlier this week, the National Muslim Council renewed its call for establishment of a Kadhi Court that would have jurisdiction over Muslims on matters of personal law relating to marriage, divorce and inheritance. (Muslim News.) This led to the filing yesterday of a petition in the country's High Court challenging the move on constitutional grounds. Today's Tanzania Standard reports that Rev. Christopher Mtikila of the Full Salvation Church, who is also the chairman of the opposition Democratic Party, filed the lawsuit claiming that establishment of separate legal systems for specific groups in the country would violate Tanzania's constitution. IPP Media says that the Full Gospel church has filed a separate suit making similar claims.

British Tribunal Rejects Rastafarian's Employment Discrimination Claim

Britain's Employment Appeal Tribunal has rejected a discrimination claim by a Rastafarian who was fired from his position as a driver because of his hair style. The case is Harris v. NKL Automotive, Ltd., (EAT, Oct., 3, 2007) [Word.doc]. The Tribunal found that the employer required drivers "should have a smart professional haircut and should ensure hair is tidy". The Tribunal concluded that since the company did not object to the wearing of dreadlocks if they were "tidy", the dismissal did not discriminate against Rastafarians. Reporting on the case, Out-Law.com reviews the case law in Britain involving employer dress codes under the Employment Equality (Religion or Belief) Regulations 2003.

Mukasey Testimony Includes Exchange On Role of Sharia Under U.S. Law

Yesterday the Senate Judiciary Committee held its first day of hearings on the nomination of Judge Michael B. Mukasey for Attorney General. (Washington Post). At the hearing (full transcript), the Senators questioned the nominee on a variety of subjects. One interesting exchange occurred between the nominee and Senator Sam Brownback:

BROWNBACK: ... [C]ertain countries' courts have held that sharia, or Islamic religious law trumps civil constitution. There's been a case in Malaysia. There was a case earlier this year in Germany, there a Frankfurt presiding judge over a divorce court involving two Muslim Moroccan residents in Germany put aside German divorce law and ruled, instead, on the basis of her understanding of the Koran.... What would be your thoughts on this were this to arise in the United States -- in a court of law in the United States?

MUKASEY: I think we should not create, anywhere in this country, enclaves that are governed by any law other than the law that applies to everybody. We live in this country under one system of laws. And whatever may be the religious requirements of any group, we don't create enclaves where a different law applies, a different law governs and people don't have the rights that everybody else has outside that enclave. I would resist that very firmly -- the creation of any such enclave.

President Emphasizes Religious Liberty At Presentation To Dalai Lama

President George W. Bush yesterday spoke at the ceremony awarding the Congressional Gold Medal to the Dalai Lama. The President's speech (full text) emphasized the importance of religious liberty in the United States. He said that in awarding the Medal to the exiled Tibetan leader, "America raises its voice in the call for religious liberty and basic human rights." In what will likely be the most politically important portion of his speech, the President said: "Americans cannot look to the plight of the religiously oppressed and close our eyes or turn away. And that is why I will continue to urge the leaders of China to welcome the Dalai Lama to China. They will find this good man to be a man of peace and reconciliation." (See prior related posting.) The Washington Post points out that yesterday's ceremony was the first time a sitting U.S. president has appeared in public with the Dalai Lama.

Groups Urge Senate To Eliminate Earmarked Funds For Creationist Group

Thirty-six scientific, educational, civil liberties and religious organizations have signed a letter (full text) to each member of the U.S. Senate urging the Senate to remove an earmark currently found in the House Committee Report on the Departments of Labor, Health and Human Services and Education Appropriations Bill. Under the House proposal, $100, 000 would go to the Louisiana Family Forum, a group promoting creationism, for it to use "to develop a plan to promote better science education." (See prior posting.) The letter argues that "federal funding of LLF's efforts to introduce creationism in public-school science classrooms will ... harm the religious liberty of students and their families" and "will weaken rather than strengthen science education". In a release discussing the letter, Americans United For Separation of church and State argued that LLF's "goal is to spread fundamentalist dogma, not enhance scientific literacy." [Thanks to Alliance Alert for the lead.]

UPDATE: Americans United announced on Thursday that the earmark's sponsor, Louisiana Sen. David Vitter, requested that it be removed from the bill and that the funds instead be directed to another Louisiana project. Vitter said that the earmark had not been intended to promote creationism.

2nd Circuit Upholds Constitutionality of RLUIPA and Vindicates Jewish Day School

Yesterday in Westchester Day School v. Village of Mamaroneck, (2d Cir., Oct. 17, 2007), the U.S. 2nd Circuit Court of Appeals affirmed a March 2006 district court decision holding that the Religious Land Use and Institutionalized Persons Act prevents the Village of Mamaroneck, New York from using its zoning laws to block a Jewish day school's construction of a new building that would be used, at least in part, for religious education and practice. (See prior posting.)

The Court of Appeals upheld the constitutionality of RLUIPA. It held that RLUIPA's limitations on land use regulation are a valid exercise of Congress' powers under the Commerce Clause in cases where a burden placed on religious exercise affects interstate commerce. The court also rejected Establishment Clause challenges to RLUIPA. Applying RLUIPA to the facts before it, the appellate court held that the Village's arbitrary denial of a special zoning permit placed a substantial burden on the Day School's religious exercise and that the Village lacked a compelling interest to justify the denial. The Zoning Board of Appeals had given undue deference to objections from an influential group of neighbors. The Associated Press reports on the decision, as does today's New York Times.

Nativity Scene To Be Permitted In Washington State Capitol This Year

The Alliance Defense Fund announced yesterday that a settlement agreement (full text) has been filed in Wesselius v. DeShaw, (WD WA, Oct. 16, 2007), a case challenging last year's refusal by Washington state officials to permit a private citizen to put up a Nativity Scene in the state Capitol building next to a menorah and holiday tree that were approved for display. Under the settlement agreement, officials will allow plaintiff to display a Nativity Scene in the commons area of the Capitol Rotunda this December. The Capitol Campus Facilities Policy will be amended to provide that public use of Capitol facilities will be made available on a non-discriminatory basis, without regard to the religious or political content or viewpoint of the person seeking access. (See prior related posting.) Yesterday's Olympian also reported on the settlement.

ORU President Takes Leave Until Charges Are Resolved

Oral Roberts University President Richard Roberts has asked the University's Board of Regents for a temporary leave of absence while charges in a civil law suit by three former ORU faculty are resolved. The suit alleges that Roberts and his wife misused University funds and that his wife spent time at night with an underage male in the University's guest house. CNN yesterday quoted Roberts who said: "I have prayed about it, and feel that it is in the best interest of my family and the university." Roberts, in the same written statement, said he would continue as head of Oral Roberts Ministries and would continue his television show. The ORU Board of Regents in a written statement said it had granted the leave request, and had appointed Billy Joe Daugherty, Senior Pastor of Victory Christian Center in Tulsa, as acting president, along with University founder Oral Roberts.

9th Circuit Grants En Banc Review In Snowbowl RFRA Case

Reuters yesterday reported that the U.S. Ninth Circuit court of Appeals has granted an en banc rehearing in Navajo Nation v. United States Forest Service. Last March, a 3-judge panel held that federal approval of the use of treated waste water to make snow in an expanded ski resort in Arizona's Coconino National Forest would violate the Religious Freedom Restoration Act. (See prior posting.) The panel concluded that the Arizona Snowbowl waste water proposal would substantially burden the carrying out of religious rituals by the Navajo and Hopi Indians who rely on the purity of the mountain water they use.

School Program That Urges Church Attendance Is Challenged

The Denver Channel yesterday reported that two parents of students in the Cherry Creek (CO)School District have filed suit challenging a program known as "40 Developmental Assets". The program aims at helping adolescents become responsible adults. One of its suggestions for constructive use of time is to spend one or more hours per week in activities in a religious institution. Bob Tiernan of the Freedom From Religion Foundation which represents the parents said that this amounts to telling students they should go to church weekly. The suggestion, he said, alienates those who do not, implying that they are not good citizens. For a public school to do that, he argues, violates the Establishment Clause.

Louisiana City To Vote On Whether To Allow Sunday Liquor Sales

In addition to voting for Louisiana's governor this Saturday, voters in East Baton Rouge will vote on whether to repeal the town's Blue Laws that prohibit the sale of packaged wine and liquor on Sundays, and prohibit the sale of packaged beer on Sundays before 12:30 p.m. LSU's Daily Reveille reported yesterday that if the measure passes and is implemented by Metro Council, grocery and retail stores will be able to sell liquor, beer and wine starting at 11 a.m. on Sundays. Restaurants that can already sell wine and liquor on Sundays will be unaffected. The referendum is being supported by residents who believe that local residents are spending money on alcohol in other parishes on Sunday, when those funds could be spent locally. Opponents, like Kitty Blanchard, secretary for St. Agnes Catholic Church, say the repeal would disrupt rest and worship on "the Lord's day".

Scalia Says His Catholic Faith Has Little Impact On His Legal Views

Speaking at Villanova University Law School yesterday, U.S. Supreme Court Justice Antonin Scalia said that his Catholic faith has played little role in his court decisions. The AP reported on his remarks, during which he asserted: "I am really hard put to tell you of a single decision or opinion of mine that would have come out differently if I were not a Catholic." He said that his opposition to Roe v. Wade stems not from his religious beliefs, but from his "textualist" views-- there is no reference to abortion in the Constitution. Commenting on death penalty cases, Scalia said that the Church's opposition to capital punishment is fairly recent, and is not an infallible teaching. He said that if he thought that it was, he might feel compelled to resign because of the number of capital cases the Court must decide.

Protestant Chaplains Lack Standing To Challenge Navy's Retirement Policy

The D.C. federal district court has dismissed on standing grounds an Establishment Clause challenge to a practice by the U.S. Navy that permitted 23 reserve corps Catholic chaplains to remain on active duty past age 60 so that they could obtain the 20 years' service needed for their pensions to vest. A group of non-liturgical Protestant chaplains and their endorsing organization claimed this amounted to a denominational preference. In re: Navy Chaplaincy, (D DC, Oct. 15, 2007), because plaintiffs did not claim that non-liturgicals were denied the same opportunity; rather they argued that the Navy's practice communicates a message of preference that constitutes a per se injury. The court rejected this argument. It also rejected plaintiffs' attempt to invoke taxpayer standing, since plaintiffs were not challenging Congressional action under the taxing and spending clause. The case was on remand from the Court of Appeals which, last year, held plaintiffs had shown irreparable injury (see prior posting).