Recent Prisoner Free Exercise Litigation and Decisions

In Haymes v. Nardolillo, 2008 U.S. Dist. LEXIS 25822 (ED PA, March 31, 2008), a Pennsylvania federal district court dismissed a Muslim inmate's free exercise claim. The court upheld prison officials' refusal to permit plaintiff to attend prayer services and their refuseal to appoint an Islamic chaplain to lead prayers and services.

In Coleman v. Granholm, 2008 U.S. Dist. LEXIS 26335 (ED MI, April 2, 2008), a Michigan federal district judge, agreeing with a magistrate's recommendation and report, concluded that prison restrictions on inmates with respect to radios, tape players, and television programs did not imposed a substantial burden on plaintiffs' exercise of their religious beliefs.

In Toler v. Leopold, 2008 U.S. Dist. LEXIS 27121 (ED MO, April 3, 2008), a Missouri federal district court ruled in favor of an inmate's claim that denial of a kosher diet violated his rights under RLUIPA and the First Amendment.

In Abdulhaseeb v. Calbone, 2008 U.S. Dist. LEXIS 26815 (WD OK, April 2, 2008), an Oklahoma federal district court dismissed a Muslim prisoner's claims against various defendants. Plaintiff argued that a substantial burden had been placed on his free exercise rights by failing to provide a full-time orthodox Muslim spiritual leader, refusing to permit him to attend Muslim religious services while publicizing Christian services, and by failing to provide him with Halal food.

Wolff v. New Hampshire Department of Corrections, 2008 U.S. Dist. LEXIS 26889 (D NH, April 2, 2008) involved a prisoner's claim that a substantial burden was placed on his religious freedom by serving him kosher meals that he is unable to eat for medical reasons. The court held, however, that plaintiff had not established a causal link between his claims of illness and the prison's kosher meals.

The AP reports that last Thursday the ACLU filed suit in a Wyoming federal district court alleging that the free exercise rights of two Muslim inmates were violated by a prison rule that requires inmates to eat their meals within 20 minutes after the food is delivered to a cell or common dining area. The rule sometimes forces inmates to choose between finishing their prayers or eating. It also precludes them from holding their food until the end of a religious fast day.

The Rutland (VT) Herald reported last week that Vermont's Corrections Department has agreed to pay $25,000 to settle a lawsuit brought by Gordon Bock, a Jewish former inmate, who said that while in prison he was denied matzoh at Passover and was prevented from observing other Jewish holidays. (See prior related posting.) The Department has recently drafted new rules on religious accommodation.

Canadian Study Says Get Court Review of Polygamy Ban Before Prosecutions

Echoing a 2007 report by a special prosecutor, yesterday Vancouver lawyer Leonard Doust recommended to the Attorney General of the Canadian province of British Columbia that before prosecuting members of the polygamist FLDS colony in Bountiful, B.C., the government should ask the B.C. Court of Appeal to decide whether Canada's criminal laws against polygamy are constitutional. Doust's study ordered last September (see prior posting) concludes that a reference to the B.C. courts would eventually be heard by Canada's Supreme Court and would give clear notice to FLDS members in Bountiful that their conduct is prohibited. Reporting on these developments, the Canadian Press yesterday said B.C. Attorney General Wally Oppal prefers to bring polygamy charges and let defendants raise constitutional religious freedom concerns in their defenses. However he conceded that contrary recommendations now by two respected special prosecutors warrant serious consideration. The new report suggesting a strategy that would delay prosecution comes just as a high profile raid on an FLDS compound was being carried out in the United States. (See prior posting.)

Florida Church Said To Have Violated IRS Campaign Limits

Melissa Rogers on Saturday gave extensive coverage to charges that Tampa Bay, Florida's largest church, known as "Without Walls" , may have violated tax code limits on non-profits by directing its staff members to make political contributions to Gov. Charlie Crist's campaign two years ago. The church is one of the six from whom Sen. Charles Grassley has requested information in his high profile investigation into spending by "prosperity gospel" televangelists. (See prior posting.)

Legal Background For Police Raid of FLDS Texas Ranch

Since Thursday, police authorities have removed 159 children and 60 adults from the YFZ Ranch in Eldorado, Texas. The ranch is home to as many as 400 members of the polygamous sect, the Fundamentalist Church of Jesus Christ of Latter Day Saints, formerly led by Warren Jeffs. (CNN)

The legal background for the raid is outlined in a story published yesterday by the San Angelo (TX) Standard-Times. On March 29 and 30, Texas police authorities received a call from inside the ranch by a 16-year old girl who said she is married to-- and has an 8 month old child by-- Dale Barlow who has previously been convicted of conspiracy to commit sexual contact with a minor. In response, on Thursday afternoon police obtained a warrant from state District Judge Barbara Walther ordering the arrest of Dale Barlow, and authorizing seizure of any records or documents on the marriage of Barlow to the 16-year-old and the resulting birth of their child. It also orders the seizure of computer equipment, hard drives and data storage equipment, DVDs, videotapes and photographs. (San Angelo Standard Times).

Once inside the compound, authorities used evidence of past or imminent abuse or neglect to remove children and women. (Deseret Morning News.). On Friday Judge Walther issued another order-- this time a gag order to prevent further information about the investigation being released. (Ft. Worth Star Telegram). Judge Walther also issued an order directing officials to bring all children, including boys under age 18, out of the compound. (Salt Lake Tribune).

UPDATE: News stories Monday evening in the Houston Chronicle and the San Angelo Standard Times report on new legal moves. 401 children have now been removed by Texas' Child Protective Services that cites allegations of abuse and risk of harm. The court has awarded CPS temporary custody of the children. A guardian ad litem and an attorney ad litem will be appointed for each child to represent his or her interests. 133 women have voluntarily joined the children. District Judge Barbara Walther has decided that emergency 24-hour hearings are unnecessary and the cases will instead move into adversarial "14 day hearings". The statutory provisions governing procedures for removing children from their home to protect their health and safety are found in the Texas Family Code, Chap. 262.

British Film Board Reconsidering 1989 Ban On Religious Film

Sunday's London Guardian reports that as Britain's blaspheny law is about to be repealed (see prior posting), the British Board of Film Classification is rethinking its controversial 1989 ruling refusing a release license for the film Visions of Ecstasy. The Board has invited the film's director Nigel Wingrove to resubmit it. The low-budget film that became a center of protest when it was first made shows a sexualized representation of 16th-century Spanish mystic St. Teresa of Avila caressing the body of Jesus on the cross.

Court Rejects Free Exercise Defense To Whale Hunting Indictment

The Peninsula Daily News reports that last week a Tacoma, Washington federal magistrate judge refused to dismiss misdemeanor charges against two members of the Makah tribe charged with hunting whale in violation of the federal Marine Mammal Protection Act. The court rejected defendants claims that the indictment infringed their rights under the First Amendment and the Religious Freedom Restoration Act. Ruling that the Mammal Protection Act applies to the Makah despite the 1855 Treaty of Neah Bay that preserves the tribe's right to hunt and kill whale, the court said that their attorney could not argue religious or cultural rights to the jury in the trial scheduled to begin tomorrow.

UPDATE: Monday's Seattle Times reports that after the court's rejection of defendants' free exercise and other defenses, defendants decided to waive a jury trial and admit their roles. U.S. Magistrate Judge J. Kelley Arnold promptly found Wayne Johnson and Andy Noel guilty of conspiracy to violate the Marine Mammal Protection Act and unlawfully taking a marine mammal. Defendants took this step so they could more quickly move to an appeal of the constitutional and treaty issues that are the crux of their defenses.

In Scotland, Muslim Speeder Says He Needs Auto To Travel Between Two Wives

Last Thursday, in a hearing on a speeding citation in a court in Scotland, a restaurant owner succeeded in avoiding suspension of his driver's license so he can continue to use his auto to commute to work. This routine ruling has been covered in This Is London because defendant Mohammed Anwar, a Muslim, also told the court that he has an additional need for his car. He has two wives-- one in Motherwell and another in Glasgow-- and needs to commute between them on alternate nights.

Recently Available Articles and Book of Interest

From NELLCO:

• Erin Guiffre, If They Can Raze it, Why Can't I? A Constitutional Analysis of Statutory and Judicial Religious Exemptions to Historic Preservation Ordinances, (Georgetown Law Historic Preservation Papers Series, Paper 20, April 29, 2007).

From SmartCILP:

• Randy Lee, Reflecting on Negligence Law and the Catholic Experience: Comparing Apples and Elephants, 20 St. Thomas Law Review 3-23 (2007).

New Book:

• Christopher DeMuth & Yuval Levin (eds.), Religion and the American Future, (April 2008, American Enterprise Institute).

Canadian Court Upholds Town's Zoning Action Against Hasidic Group

Friday's Montreal Gazette reported that the Quebec Court of Appeal has rejected a religious freedom challenge to action by the small Laurentian town of Val Morin banning a Hasidic community from continuing to use two chalets every summer for a school and a synagogue. The town says the group misrepresented its intended use for the cottages 20 years ago when they applied for building permits. The appellate court ruled that the town's zoning action may have limited the group's right to freedom of religion, but it had not "denied, ignored or compromised" it. The Followers of the Rabbis of Belz to Strengthen Torah have spent 8 weeks each summer in Val Morin for over twenty years. The remaining 40 families in the summer colony object to traffic, noise and garbage they say the Hasidic community creates. Upholding a lower court, the Court of Appeal held that the Jewish group could build on nearby land it owns. However the Belz community says that land is mostly swamp.

Appeal Questions Whether California's Privilege Law Is Discriminatory

Friday's Riverside (CA) Press-Enterprise reports that child molestation defendant Gilbert Simental has filed an interlocutory appeal after a Riverside, California state court judge last week ordered two elders of a Jehovah's Witness congregation to testify about admissions that Simental reportedly made. One of the issues in the appeal is whether the California law on clergy privilege discriminates against Jehovah's Witness practices. State law privileges communications to clergy only if they are not made in the presence of any third person. Simental's statements were made to a church judicial committee of three Elders. (See prior related posting.)

Midwife Who Refuses Registration Agrees To New Injunction

In Delta, Colorado, midwife Theanna Sparrow Davis agreed to the entry of a permanent injunction preventing her from practicing midwifery unless she registers with the appropriate state licensing agencies-- something she says her religious beliefs preclude her from doing. She now will only be permitted to sing and pray while licensed personnel are assisting a woman in childbirth, and only so long as her activities do not assist verbally in the birth. Davis had been enjoined twice before after infants died during childbirths she was attending. Davis' agreement to the new restrictions mean that the Colorado Attorney General's office will not pursue sanctions for contempt of the prior injunctions. The Montrose (CO) Daily Press reported yesterday that the new order says Davis has had difficulty in the past determining the line between what she was and was not permitted to do.

Conservative Prof Can Proceed With Discrimination Claims

In Adams v. Trustees of the University of North Carolina-Wilmington, (ED NC, March 31, 2008), a North Carolina federal district court allowed, Prof. Michael S. Adams, a University of North Carolina faculty member and nationally syndicated conservative columnist, to proceed against the University with free speech and religious discrimination claims under the First and Fourteenth Amendments and Title VII of the 1964 Civil Rights Act. An Alliance Defense Fund press release describes the case as follows:

Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998 when he was an atheist. However, interrogations, accusations, and refusals for promotion followed his conversion to Christianity in 2000, even though the quality of his work and conduct at the university never wavered.

ADF attorneys representing Adams sued UNCW on April 10, 2007, arguing that he was harassed and denied a promotion because his Christian beliefs did not coincide with the liberal political and philosophical stance of his superiors.

The court however dismissed on 11th Amendment grounds Adams' claims for monetary relief against defendants in their official capacities and dismissed his Title VII claims against individual supervisors. (See prior related posting.)

Street Preachers' Suit Against Louisiana Town Proceeds Toward Trial

In World Wide Street Preachers' Fellowship v. Town of Columbia, Louisiana, 2008 U.S. Dist. LEXIS 26929 (WD LA, April 3, 2008), a Louisiana federal district court issued an opinion in a case on remand from the 5th Circuit. (See prior posting.) The case involves a group of demonstrators protesting abortion and other matters of religious belief who sued the city of Columbia (LA) after a state trooper dispersed their demonstration and arrested one of its members. The demonstrators, a group of street preachers, claimed that the officer's actions violated their right to free speech, free exercise of religion and freedom of assembly. In this decision, the court rejected the city's argument that no municipal liability exists. The court held that "the Preachers have raised a genuine issue of material fact whether there was a 'widespread practice,' i.e., a custom, of using inapplicable statutes to regulate the Preachers' First Amendment rights." The Court found that there are also genuine issues of material fact for trial on whether the state trooper's motivations in breaking up plaintiffs' demonstration were content-neutral or content-based.

Florida Commission Rejects Constitutional Amendment On School Vouchers

On Friday, Florida's Taxation and Budget Reform Commission narrowly defeated a proposed state constitutional amendment that would have permitted-- or perhaps required-- Florida to provide private school vouchers. The Sarasota Herald Tribune and the Orlando Sentinel report on the 16-9 vote by the Commission. Seventeen votes are needed to put the proposal before Florida voters. The proposal would have amended the provision in the state's constitution calling for a "uniform ... system of free public schools". That provision was the basis for a 2006 Florida Supreme Court decision invalidating Florida's Opportunity Scholarship Program. (See prior posting.) Last week the Commission did approve placing on the ballot a proposal to eliminate Florida's constitutional ban on state funding in aid of any religious institution. (See prior posting.)

Baptist Groups Challenges Press Coverage of Obama's Church Affiliation

Leaders of three predominantly African-American Baptist denominations on Friday released a a statement attacking the way in which the press has covered Barack Obama's membership in Chicago's Trinity United Church of Christ. Religion Blog sets out the statement which complains that press coverage of Obama has created a religious test for office in violation of the Constitution's Art. VI and threatens Obama's religious freedom to choose his denominational affiliation.

Fisherman's Bible Defense Fails In Canadian Court

In Barrington, Nova Scotia, fisherman Ralph Thomas Atkinson was convicted of violating Canadian regulations by fishing in an unauthorized area in Georges Bank, despite his novel "Bible defense." Friday's Nova Scotia Chronicle Herald reports that, as part of his closing argument at trial, Atkinson insisted on reading to the court Matthew, Chap. 17, verses 24 to 27. He argued that the verses show that Jesus told his followers to go fish. The judge, unimpressed, found Atkinson guilty and fined him $4000, approximately the value of the fish that Canadian federal authorities seized when they boarded his boat on the high seas in August 2006.

California Jury Awards $6.54M In Religious Discrimination Suit

A federal district court jury in Sacramento, California on Friday awarded $647,174 in actual damages and $5.9 million in punitive damages to a software developer who says she was denied a promotion, and later laid off, because she was not a member of the Fellowship of Friends. Today's Sacramento Bee reports that Lynn Noyes, a 10-year employee of Kelly Services, says that many of the promotions and much of the hiring in the company's Nevada City office went to members of the religious group. Kelly lawyers in part argued unsuccessfully that the Fellowship of Friends is not a religion, but rather a "philosophical group," so favoring members of that group did not amount to religious discrimination.

Break-Away Episcopal Churches Win On First Part of Their Case

On Thursday, in In Re: Multi-Circuit Episcopal Church Property Litigation, (VA Cir. Ct., April 3, 2008), a Fairfax County (VA) trial judge issued an 88- page "Letter Opinion on the Applicability of Va. Code § 57-9(A) " to eleven Virginia churches that broke away from the Episcopal Church USA. The court held that the churches are covered by an 1867 Virginia law that provides: "If a division has ... occurred ... in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority ..., determine to which branch of the church ... such congregation shall thereafter belong." The court scheduled a hearing for May 28 on whether the section, interpreted in this way, violates the Free Exercise or Establishment clauses of the U.S. Constitution or the religious freedom provisions of the Virginia constitution. Yesterday Episcopal Life reported on the decision and reprinted statements issued afterwards by the Office of the Presiding Bishop and the Diocese of Virginia. Time reports on this and other cases in an article titled The Episcopal Property War.

Suit Challenges 4th of July Display Limits That Excluded Cross

In Norfolk, Virginia yesterday, the Christian Rights Ministries (CRM) filed a federal lawsuit against the city of Chesapeake over events that took place last July 4. After Chesapeake's 4th of July parade, participating groups set up booths in a local park. According to the complaint (full text), city officials demanded that CRM remove a 12-foot high white cross that CRM had set up next to its booth. A city official said it was "offensive". The lawsuit filed yesterday asks the court to rule that Chesapeake's policies and actions violated CRM's First and Fourteenth Amendment rights. Alliance Defense Fund issued a release announcing the filing of the legal action.

Obama's Church Sets Ground Rules For Reporters

Today's Chicago Tribune reports that leaders of Barack Obama's Trinity United Church of Christ in Chicago have set new rules for media access to church services. Reporters must get permission on Thursday to attend Sunday services, they must check in, wear a badge and refrain from interviewing members on church property. They can use note pads, but may not use recording devices, cameras or BlackBerries on the church's campus. Audio and video recordings of the day's sermons will be available for purchase immediately after the services at the church's bookstores. Apparently not covered by the new rules are other controversial methods that reporters have used to locate church members to interview-- getting names from the church's list of those who are ailing and home bound, or approaching members at funerals.