Recent Prisoner Free Exercise Cases

In Washington-El v. Diguglielmo, 2008 U.S. Dist. LEXIS 58304 (ED PA, July 31, 2008), a Pennsylvania federal district court denied defendants' motion to dismiss a claim by a prisoner who was a member of the Moorish American Moslem faith. Plaintiff asserted that he was refused the right to participate in Ramadan, to keep a copy of the Koran and to receive visits from clergy of his religion.

In Gooden v. Crain, 2008 U.S. Dist. LEXIS 59857 (ED TX, Aug. 6, 2008), a Texas federal district court rejected a RLUIPA challenge by a Muslim prisoner to Texas prison grooming standards that prevented him from wearing a beard. The court held that while the policy imposes a substantial burden on plaintiff's exercise of religion, the state had shown a compelling interest for the restriction and that the policy is narrowly tailored in light of administrative and budgetary concerns.

Rhoades v. Alameida, 2008 U.S. Dist. LEXIS 59349 (ED CA, Aug. 4, 2008), involved objections by a Native American prisoner that certain of his religious artifacts were destroyed by prison officials. The court said that there were disputed issues of fact that prevented granting the magistrate's recommended summary judgment for defendants on this claim. However the court dismissed plaintiff's equal protection claim, finding that the items he wanted to keep did not have the same religious significance as a Bible or Koran that were allowed to other inmates.

Palermo v. Wright, 2008 U.S. Dist. LEXIS 60014 (D NH, July 24, 2008), a New Hampshire federal magistrate judge allowed a prisoner to move ahead with 1st Amendment and RLUIPA claims that he was denied the religious diet and ritual items required by his Wicca religion.

University of California's Rejection of Christian School Courses Upheld

In Association of Christian Schools International v. Stearns, (CD CA, Aug. 8, 2008), a California federal district court upheld the University of California's refusal to recognized certain high school courses offered by Christian schools in making admissions decisions. In an earlier decision (see prior posting) the court rejected facial challenges to the University's policy. In this decision, the court also rejected a series of "as-applied" challenges.

On procedural and standing grounds, the court limited the as-applied challenge to rejection of literature, history, government and world religions courses offered by Calvary Chapel Christian School and one Biology course offered by another school. In rejecting plaintiffs' viewpoint discrimination challenge as to those courses, the court said: "Defendants necessarily facilitate some viewpoints over others in judging the excellence of those students applying to UC. Therefore, the decision to reject a course is constitutional as long as: (1) UC did not reject the course because of animus; and (2) UC had a rational basis for rejecting the course." The court also rejected free exercise, establishment clause and equal protection challenges.

The Californian on Friday reported on reactions from Robert Tyler, an attorney who represented Calvary Christian School in the case. Saying that they planned an appeal, Tyler remarked: "We're worried in the long term, Christian education is going to be continually watered down in order to satisfy the UC school system." University officials have approved 43 courses offered by Calvary Christian School, and test scores can be used as an alternative admissions criterion.

Air Force Chief of Chaplains Interviewed By AF Times

The Air Force Times on Friday published an interview with the Air Force's recently-appointed Chief of Chaplains, Maj. Gen. Cecil Richardson. Much of the interview focused on defining the appropriate line between sharing one's faith and proselytizing. However Richardson also spoke about changes he plans to introduce to focus more on counselling those being deployed. He said: "We’re working with individuals to build a foundation of faith to stand on when they go through the most difficult time in their whole life." [Thanks to Blog from the Capital for the lead.]

7th Circuit Invalidates City's Handbilling Restrictions

In Horina v. City of Granite City, Illinois, (7th Cir., Aug. 7, 2008), the U.S. 7th Circuit court of Appeals, in a 2-1 decision, held that a city ordinance regulating the distribution of handbills is unconstitutional. In a challenge brought by a born-again Christian who regularly placed pro-life literature and Gospel tracts on the windshields of cars parked near a women's clinic that provides abortions, the court held that the city's restrictions had not been justified as legitimate time, place and manner restrictions. Granite City had failed at trial to introduce any evidence that the ordinance was needed to combat litter, intrusion, trespass or harassment. The ordinance was not narrowly tailored and failed to leave open ample alternative channels of communication. The court however held that the trial court's award of compensatory damages to plaintiff was not justified by the record and reduced the amount of attorneys fees that the trial court had awarded.

Judge Manion dissenting in part argued that the ordinance was a valid time, place and manner regulation and that "common sense" can be used to demonstrate the City’s substantial governmental interest in enacting the ordinance. On Friday, the Thomas More Society issued a release supporting the decision.

New York's Governor Supports Synagogue's Eruv Proposal

Thursday's Forward reports that New York Governor David Patterson spoke earlier this month during services at a synagogue in Westhampton Beach (NY), supporting the congregation's proposal to build an eruv around their community in the Hamptons. An eruv is a symbolic enclosure of an area, usually by wires or strings on utility poles, that under Jewish law permits observant Jews to carry items and push strollers on the Sabbath. Long Island Power Authority and Verizon agreed to the synagogue's proposal, but objections surfaced when the synagogue sought approval from the village board. Critics say the eruv would be a violation of separation of church and state and would be a divisive force. They ran a full page newspaper ad urging residents to vote against political candidates who support the eruv. Patterson in his prepared remarks urged tolerance and understanding for the eruv proposal, and said he might attend a community forum later this week to help clear up public misconceptions.

Maldives Ratifies New Constitution; Some Concerns Over Religious Freedom Remain

Over a month after it was passed by the Constitutional Assembly, Maldives President Maumoon Abdul Gayoom ratified the country's new constitution on Thursday. The new constitution which brings in democratic reforms and the country's first bill of rights and freedoms, was four years in the making. (Minivan News). The new document, however, has raised some concerns among human rights groups. Article 9, Section D of the constitution provides that "a non-Muslim may not become a citizen of the Maldives." The Maldives is 100% Muslim, but the previous Constitution only reserved the right to vote, not citizenship, to Muslims. Minivan News reported yesterday that the U.S. based Institute on Religion and Public Policy says that this provision violated international human rights norms. In its statement, the IRRP also criticized other aspects of the new Constitution, saying that it "favors Sunni Islam over other forms of Islam, establishes certain aspects of Sharia law in the Maldives and limits the freedom of expression and thought to 'manners' which are 'not contrary to a tenet of Islam'." (See prior related posting.)

Protesters Force Closure of Malysian Lawyers' Conference

In Kuala Lumpur, Malaysia yesterday a lawyer's group, the Bar Council, had scheduled a conference on legal issues faced by families in which one of the spouses converts to Islam. Today's Straits Times reports that police forced lawyers to end the conference shortly after it started when 300 demonstrators gathered outside the conference carrying signs accusing the Bar Council of attempting to challenge Islam's position as Malaysia's official religion.

Canadian Border Guards Keep Out Westboro Baptist Church Picketers

Members of the Westboro Baptist Church, famous for picketing military funerals and other events protesting supposed tolerance of homosexuality, are now attempting to extend their activities to Canada. However, according to last Thursday's National Post, Canadian border officials denied them admission as they were attempting to travel to Winnipeg to picket the Saturday funeral of a young man murdered last week on a Greyhound bus. A Winnipeg resident, using a Facebook page, was recruiting residents to surround the picketers if they did arrive. Saturday's Winnipeg Free Press reported that the Westboro picketers-- who had threatened to carry signs saying that the murder was God's response to Canadian policies permitting abortion, homosexuality and adultery-- never showed up. [Thanks to "Chimera" for the lead.]

Work of Ohio's Faith-Based Office Is Praised

Today's Cleveland Jewish News carries an article praising Ohio's version of the faith based initiative. The Governor's Office of Faith-Based and Community Initiatives (GOFBCI) will grant $11 million to religious and community groups in fiscal year 2009, double its spending in 2008. Most of the funds come from the federally funded TANF program. GOFBCI has developed a web-based program, the Ohio Benefit Bank, that it makes available to nonprofit agencies. The agency can use it to assist clients in determining their eligibility for a variety of state benefits without the client having to visit various state offices. The GOFBCI website also makes it simple for non-profit agencies to search for available federal, state and private grants.

GOFBCI Director, Greg Landsman, says his agency insists that funded programs "be devoid of inherently religious activities." He says, "There can be religious symbols on the wall. But you can’t do anything religious during the time when public dollars are at play." Joyce Garver Keller, director of Ohio Jewish Communities, who is encouraging more Jewish groups to apply for faith-based funding, is trying to dispel the notion that the program is about "giving money to evangelical Christians to proselytize."

Volume of Calls To Prayer Becomes Controversial In Morocco

In Morocco, according to a story today from the AP, the rising decibel level of the daily calls to prayer from mosques using improved audio technology "is deepening fault lines between a government drive to modernize and a wave of rigorous political Islam." Minister for Family and Social Affairs, Nouzha Skalli, has been accused by newspapers and some imams of attempting to impose secularism because, it was rumored, at a closed cabinet session she proposed that legislation be adopted to lower the volume on muezzins' calls to worship in tourist zones. Islamists are increasingly portraying the influx of tourists to the country as a threat to Muslim values.

9th Circuit En Banc Rejects Tribes' RFRA Challenge To Snowbowl Expansion

In Navajo Nation v. United States Forest Service, (9th Cir., Aug. 8, 2008), in an 8-3 en banc decision, the U.S. 9th Circuit Court of Appeals held that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort, which operates on federal land. Several Indian tribes sued claiming that the plan will spiritually contaminate the San Francisco Peaks that they believe to be sacred. Rejecting the conclusion reached last year by a 3-judge panel (see prior posting), the full court used the case to clarify the 9th Circuit's interpretation of "substantial burden" under RFRA. The majority held:

RFRA’s stated purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner ... and Wisconsin v. Yoder.... Under RFRA, a "substantial burden" is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder)....

The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater ... will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment—serious though it may be—is not a "substantial burden" on the free exercise of religion.

The dissenting opinion was written by Judge Fletcher, who had authored the 3-judge panel's decision: Criticizing the majority's opinion at length, he wrote:

The majority characterizes the Indians’ religious belief and exercise as merely a "subjective spiritual experience." Though I would not choose precisely those words, they come close to describing what the majority thinks it is not describing — a genuine religious belief and exercise.... [R]eligious exercise invariably, and centrally, involves a "subjective spiritual experience."

Today's Vail (CO) Daily reported on the decision. The Save the Peaks Coalition yesterday issued a statement strongly criticizing the decision. [Thanks to Robert H.Thomas for the lead.]

California Appellate Court OK's Home Schooling, Reversing Earlier Decision

In a widely-followed case, today a California Court of Appeal, on rehearing, reversed its earlier ruling (see prior posting) and held that California law permits parents to home school their children without employing a certified teacher to carry out the instruction. In Jonathan L. v. Superior Court of Los Angeles County, (CA Ct. App., Aug. 8, 2008), the court held that the private-school exemption in California's compulsory education law includes a parent teaching a child in the home. Finding that the language of the statute is ambiguous, the court relied on legislative history to reach its conclusion. It found t while the legislature never explicitly repealed a ban on home schooling, various of its laws dealt with home schools as if they are permitted. The court said its conclusion if further bolstered by the past administrative interpretation of California law, reliance by parents on that understanding, and by the preference to interpret statutes so as to avoid constitutional questions.

The court went on to hold that while parents have a constitutional liberty interest in directing the education of their children, the state also has a compelling interest in protecting the welfare of children. Therefore a dependency court could decide that a child's safety requires removing them from home schooling The court remanded the case for the trial court for a determination of whether such safety concerns exist. In concluding its opinion, the court urged the California legislature to provide objective criteria for the oversight of home schooling. Today's Los Angeles Times and San Jose Mercury News both report on the decision. [Thanks to Alliance Alert for the lead.]

New York Officials and Amish Continue To Clash Over Sanitary Code Requirements

Tensions between members of the Amish community and upstate New York health officials continue as the Cattaraugus County Board of Health on Wednesday approved a hearing officer's recommendation that two families each being fined $200 and $10 per day until new sewage permit applications are filed and an additional $10 per day until new septic systems are put in. Yesterday's Buffalo News reports that while the families obtained privy permits, they would not sign papers swearing there would be no gray-water discharge. A compromise design plan that the families had worked out with the county for wooden gray-water boxes was rejected by their bishop and the families then refused to move ahead with the plan. (See prior related posting.)

DC Christian Science Church Sues Over Historic Landmark Designation

Washington D.C.'s Third Church of Christ, Scientist, yesterday filed a federal lawsuit challenging a decision by the city's Historic Preservation Review Board (see prior posting) that prevents the church from tearing down its current building in order to construct a new church structure. Today's Washington Post reports the lawsuit alleges that designating the church an historic landmark violates its First Amendment free exercise rights as well as its rights under the Religious Land Use and Institutionalized Persons Act. Today's Washington Times reports on reactions to the lawsuit from both sides.

Jewish Police Officer Scores Partial Win On Religious Accommodation Claim

In Riback v. Las Vegas Metropolitan Police Deparment, (D NV, Aug. 6, 2008), a Nevada federal district court ruled that Steve Riback, a Las Vegas police officer who is an Orthodox Jew, must be given an exemption from the police department's grooming policy so he can wear a beard for religious reasons. The exemption is subject to the same restrictions that apply to those who are permitted to wear beards for medical reasons. Riback is assigned to the department's non-unformed Quality Assurance Unit.

The court went on to hold that the department's headgear policy which precludes Riback from wearing a yarmulke, does not violate Riback's free exercise rights under the U.S. and Nevada constitutions. The failure to accommodate Riback's request to wear a head covering though, the court said, may have violated Title VII of the 1964 Civil Rights Act and similar state employment discrimination laws. The court held that there are genuine issues of material fact that must go to trial on the question of whether the police department made a good faith effort to accommodate Riback's request to wear a yarmulke or baseball cap, and whether accommodation would have imposed an undue hardship on the department. Yesterday's Las Vegas Review Journal reports on the decision.

Alberta Rights Commission Dismisses Complaint About Muhammad Cartoons

In Canada, a July 29, 2008 Investigation Report submitted to the Alberta Human Rights and Citizenship Commission recommends dismissing a discrimination complaint filed by the Edmonton Council of Muslim Communities against the magazine Western Standard. In an August 1 ruling, the Commission's director accepted the recommendation. (Full text of Ruling and Report.) The complaint involved the now-defunct magazine's publication in 2006 of controversial cartoons of the Prophet Muhammad. The cartoons originally appeared in a Danish newspaper.

The Report recommending dismissal found that the cartoons were published in the context of an article on freedom of speech, and in that context do not indicate an intent to discriminate nor do they endanger the rights of Muslims to equal opportunity. The decision is appealable to the Chief Commissioner. Wednesday's National Post reports on the decision. Ezra Levant, publisher of Western Standard, published a rather defiant blog posting commenting on the dismissal. (See prior related posting.)

Bush Criticizes China On Human Rights In Two Speeches Abroad

In two speeches on his trip to the Beijing Olympics, resident George W. Bush has criticized China's policies on human rights and religious freedom. In a lengthy speech yesterday (full text) at a stop in Bangkok, Thailand, after talking about US-China cooperation, Bush said:

I have spoken clearly and candidly and consistently with China's leaders about our deep concerns over religious freedom and human rights. I have met repeatedly with Chinese dissidents and religious believers. The United States believes the people of China deserve the fundamental liberty that is the natural right of all human beings. So America stands in firm opposition to China's detention of political dissidents and human rights advocates and religious activists. We speak out ... not to antagonize China's leaders, but because trusting its people with greater freedom is the only way for China to develop its full potential.

According to AGI, the Chinese foreign ministry immediately responded, emphasizing the good relationships of the two countries but rejecting U.S. use of human rights or religion to interfere in the internal affairs of China.

Inside China, Bush, speaking at the dedication today of the U.S. embassy building in Beijing (full text of remarks), again brought up the topic, though more briefly. He said that the U.S. would "continue to be candid about our belief that all people should have the freedom to say what they think and worship as they choose." Reuters reports that Chinese officials at the ceremony sat expressionless.

UPDATE: Countering somewhat the image created by President Bush's criticism of religious freedom in China, Cox New Service today published an article profiling Nanjing Amity Printing Co., the official publisher of Bibles in China. Last year the company produced 6.7 million Bibles, 3 million of which were for distribution in China. It has printed 50,000 copies of the New Testament for free distribution at various sites during the Olympics.

Obama's Muslim Outreach Coordinator Resigns Over Past Board Connection

Mazen Asbahi, a corporate lawyer at the Chicago law firm of Schiff Hardin, resigned earlier this week as the volunteer Arab American and Muslim American Outreach Coordinator for the Obama campaign. Wednesday's Wall Street Journal disclosed that Asbahi decided to resign just two weeks after his appointment when an Internet newsletter reported that eight years ago he had for a few weeks served on the board of Allied Assets Advisors Fund. One of the Fund's other board members was Jamal Said, a fundamentalist imam who was named as an unindicted co-conspirator in a case against alleged Hamas fund raisers. That case ended last year in a mistrial. Asbahi had quickly resigned from the Allied Asset's board when he learned of charges against Said. Allied Assets is a subsidiary of the conservative the North American Islamic Trust. Reporting on the incident, the AP Wednesday quoted Dawud Walid, executive director of the Council on American-Islamic Relations, who said: "This incident just shows how Islamophobic the political climate is right now." (See prior related posting.)

Court Orders Prisons To Recognize Native American Shamanism

In Iron Thunderhorse v. Pierce, 2008 U.S. Dist. LEXIS 58842 (ED TX, July 30, 2008), an inmate in a Texas correctional institution argued that the Native American religious program in Texas prisons gives preferential treatment to Christian-oriented Native American religions and disfavors traditionalist Native American shamans. The court agreed, ordering that "Native American shamanism" be recognized as a valid faith with a separate faith code. It also ordered that Iron Thunderhorse be allowed a reasonable number of holy days and traditional foods for feast days, and that if he is released from administrative segregation he be allowed access to pipe ceremonies and a medicine bundle, including musical instruments like a clay flute and small drum. The court however rejected plaintiff's claims that relating to the prison's dress and grooming codes and restrictions on him while in administrative segregation.

Atheists Criticize County Fair For "God and Country Day"

According to yesterday's Los Angeles Chronicle, the Wilson County, Tennessee Fair has designated August 17 as "God and Country Day." In addition to a tribute to military personnel, anyone presenting a church bulletin at the gate that day will receive a $2 admission discount. A spokesman for American Atheists ("AA") has criticized the Fair's decision to promote Christianity in this way. AA and others plan two responses. They urge members to wear T-shirts supporting Foxhole Atheists during the Fair's ceremony honoring military personnel. American Atheists also suggests that members present printouts of AA's website at the Fair gate and ask for the same $2 admission discount. [Thanks to Scott Mange for the lead.]