Annual Red Mass Held Today In D.C.

Blog of The Legal Times reports that this morning five Supreme Court justices were in attendance at the 55th annual Red Mass in Washington, sponsored by the John Carroll Society. Four of the 5 sitting Catholic Justices (Roberts, Scalia, Kennedy and Thomas), as well as Justice Breyer, who is Jewish, were there. Many lower court judges, ambassadors, at least one Cabinet member, law school deans and lawyers were also in attendance. The Red Mass is held each year on the Sunday before the opening of the U.S. Supreme Court's fall term, and is meant to bestow the Church's blessing on judges and civic leaders.

9th Circuit: Plaintiff Lacks Standing To Challenge Evolution Website

In Caldwell v. Caldwell, (9th Cir., Oct. 3, 2008), the U.S. 9th Circuit Court of Appeals dismissed for lack of standing plaintiff's Establishment Clause challenge to certain content on an "Understanding Evolution" website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. The website, in dealing with misconceptions about evolution, says that evolution and religion are not incompatible. Plaintiff alleges that this exposes her to a government-endorsed religious message that makes her feel like an outsider.

The court, in rejecting plaintiff's claim against the University of California faculty, concluded that plaintiff's

asserted interest- informed participation as a citizen in school board meetings, debates, and elections, especially with respect to selection of instructional materials and how teachers teach the theory of evolution in biology classes in the public schools -- is not sufficiently differentiated and direct to confer standing on her to challenge the University of California's treatment of religious and anti-religious views on evolution. An interest in informed participation in public discourse is one we hold in common as citizens in a democracy.

Judge Fletcher wrote a concurring opinion to spell out in more detail why plaintiff lacks standing. He argued that her injury from offensive content on one of 840 pages in the website was de minimis.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Gillard v. Kuykendall, (8th Cir., Oct. 2, 2008), the U.S. 8th Circuit Court of Appeals held that prison authorities violated the free exercise rights of an inmate who, as a member of the New Testament House of Prayer, observed the Sabbath on Saturday. By requiring plaintiff to clean his cell on Saturday mornings, officials substantially burdened his religious beliefs which could have been accommodated by allowing him to clean his cell before or after his Sabbath. AP reported on the decision. (See prior related posting.)

In Lovelace v. Bassett, 2008 U.S. Dist. LEXIS 74190 (WD VA, Sept. 27, 2008), a Virginia federal district court allowed an inmate to proceed with his claim that he was served one-third fewer calories per day during the month of Ramadan. Plaintiff alleged that this violated his rights under the free exercise clause, RLUIPA, the due process clause and the equal protection clause.

In Barnes v. Fedele, 2008 U.S. Dist. LEXIS 74117 (WD NY, Sept. 26, 2008), a New York federal district court permitted a Hebrew Israelite inmate to proceed with his claim that his religious head gear was improperly taken from his cell. He was also permitted to proceed with his complaint that he was improperly denied kosher meals.

In El Badrawi v. Department of Homeland Security, 2008 U.S. Dist. LEXIS 74499 (D CT, Sept. 22, 2008), a former inmate brought damage claims in part for officials' refusal to serve him meals consistent with his Ramadan observance. The court permitted him to proceed with his claim that this violated his 1st Amendment rights. It also granted him leave to amend his RLUIPA claim to sue the warden in his individual capacity. The court held that RLUIPA does not authorize a claim for damages in a suit against the warden in his official capacity.

In Richardson v. Zimmerman, 2008 U.S. Dist. LEXIS 74993 (CD IL, Sept. 29, 2008), an Illinois federal district court rejected complaints about food substitutions and meal quality brought as free exercise and equal protection claims by an African Hebrew Israelite inmate who was being served a vegan diet.

Strutton v. Meade, 2008 U.S. Dist. LEXIS 76608 (ED MO, Sept. 30, 2008), involved free exercise and RLUIPA claims by a Wiccan who had been civilly committed to the Missouri Sexual Offender Treatment Center. Plaintiff asserted a variety of infringements of his ability to practice his religious faith and possess religious items. While rejecting many of his claims, the court concluded that there was enough evidence for plaintiff to move ahead on his challenge to the limit on Wicca group worship to one hour per week. It also permitted him to proceed on his Establishment Clause challenge to a requirement that he participate in Christian prayer at addiction support group meetings.

In Pethe v. Henderson, 2008 U.S. Dist. LEXIS 75847 (ND MS, Sept. 29, 2008), a Mississippi federal district court held that plaintiff had failed to prove that he was not provided the proper diet during the Feast of Unleavened Bread that he observed as a member of the Judaian-Christian faith of the United Church of God.

In United States v. Amawi, 2008 U.S. Dist. LEXIS 76097 (ND OH, Aug. 28, 2008), an Ohio federal district court rejected a Muslim prisoner's objections on religious grounds to prison rules requiring him to be strip searched after contact visits with his counsel.

In Warren v. Peterson, 2008 U.S. Dist. LEXIS 76453 (ND IL, Sept. 25, 2008), an Illinois federal district court allowed an African Hebrew Israelite inmate to proceed with his claim against a prison chaplain (but not against other defendants) alleging that he failed to receive the vegan meals for which he had been approved because of the chaplain's failure to process required paper work .

In Robinson v. United States Government, 2008 U.S. Dist. LEXIS 76653 (ED NY, Sept. 18, 2008), a New York federal district court permitted an inmate to move ahead with his complaint against a corrections officer who allegedly broke up a Jewish high holiday service being held at a detention center and made anti-Semitic remarks to plaintiff. Claims against the Bureau of Prisons and the United States were dismissed.

In Tafari v. Annetts, 2008 U.S. Dist. LEXIS 77015 (SDNY, Oct. 2, 2008), a New York federal district court agreed with a magistrate judge's recommendation to grant summary judgment to defendants in a case in which a prisoner asserted violations of his rights when he was denied kosher meals on four occasions during his transfer between institutions.

Subpoena For Megachurch Records Turns On Technicality of IRS Bureaucracy

The Minnesota Independent and the Minneapolis Star-Tribune report that on Thursday a federal magistrate judge in Minneapolis heard arguments on whether the court should enforce an IRS subpoena for financial documents against Living Word Christian Center. The IRS is investigating loans and compensation paid by the Brooklyn Park (MN) megachurch to its pastor, Mac Hammond. While broad church-state issues, and concerns about the privacy of donors, are at stake, this aspect of the case turns on technical language imposing special procedures for IRS investigations of churches.

Internal Revenue Code Sec. 7611 , enacted in 1969, among other things requires that a church tax inquiry can be commenced only if it is authorized by "an appropriate high-level Treasury official." The section defines that as an official "whose rank is no lower than that of a principal Internal Revenue officer for an internal revenue region." However, in 1998, the IRS was restructured so that regional commissioners were eliminated and instead a system of national directors for separate types of taxpayers was set up. In this case, the investigation was authorized by the director of exempt organization examinations -- a position that is fourth in line in the IRS organization chart. Living Word Church argues that Sec. 7611 requires a higher level official to approve the summons. (See prior related posting.)

Federal Lawsuit Challenges National Day of Prayer

The Freedom from Religion Foundation filed suit on Friday in a Wisconsin federal district court challenging the federal law that creates a national Day of Prayer. (Press release.) The complaint (full text) seeks a declaratory judgment that Public Law 100-307 and Presidential and Gubernatorial Proclamations calling on citizens to pray violate the Establishment Clause. Named defendants are President Bush, White House Press Secretary Dana Perino, Wisconsin Governor Jim Doyle and National Day of Prayer Task Force Chairman Shirley Dobson. The private NDP Task Force is described in the complaint as "a willful participant with state and federal officials in joint action that violates the Establishment Clause." (See prior related posting.)

British Court Grants Asylum To Muslim Converts To Christianity

Earlier this week, the Christian Post reported that a British immigration appeals court has granted asylum to a couple that had converted from Islam to evangelical Christianity. For the first time, the court recognized that the couple faced threats, including death threats, if they returned to Syria, the husband's country of origin. Six members of the U.S. Congress had sent a letter to the British appeals court in August urging it to find that the couple would face severe religious persecution if they were returned to Syria.

School Ban On Student Speech Claiming Supremacy of Religious View Struck Down

Miller v. Penn Manor School District, (ED PA, Sept. 30, 2008), involved a challenge to a Pennsylvania school district's Student Expression policy. It was brought by a high school student who was told he could not wear to school a T-shirt that promoted homeland security and was imprinted on the back, in part, with the words: "Special Issue-Resident-Lifetime License, United States Terrorist Hunting Permit..." While the court upheld most of the school district's policy-- including the prohibition on speech that incites violence-- the court issued a preliminary injunction against enforcing two portions of the policy. It found the ban on student dress or expression that "is a distraction to the educational environment" to be overbroad and vague. It also found the ban on student expressions that "seek to establish the supremacy of a particular religious denomination, sect or point of view" to be overbroad.

Court Rejects Establishment Clause Challenge To School Program

In Freedom from Religion Foundation, Inc. v. Cherry Creek School District, 2008 U.S. Dist. LEXIS 76938 (D CO, Sept. 8, 2008), a Colorado federal district court rejected an Establishment Clause challenge to a school district program called "40 Developmental Assets." The program listed 40 positive factors that parents are encouraged to build in their children. Plaintiffs objected to one of the listed assets-- encouraging children to spend one or more hours per week in activities in a religious institution. The court held that the overall program had a secular purpose and would not likely be perceived by non-religious parents as disapproving their beliefs. The court said that the program had to be considered as a whole, instead of dissecting out one of forty elements for separate examination. (See prior related posting.)

Federal Court Removal Denied For Counterclaims In Yeshiva Housing Case

In Village of Chestnut Ridge v. Town of Ramapo, 2008 U.S. Dist. LEXIS 76881 (SDNY, Sept. 30, 2008), a New York federal district court rejected an attempt by defendant alleging RLUIPA and Fair Housing Act counterclaims to remove a case from New York state courts to federal court. The original lawsuit included 14th Amendment and Establishment Clause challenges to a zoning law enacted by the town of Ramapo that would allow high density adult student housing to be built in a residential area by Orthodox Jewish educational institutions. The court held that the attempt by defendant to remove the case to federal court was not timely because in fact the land at issue had been secretly transferred to the defendant seeking removal early in the litigation, and defendant should have become a party at that time. The court went on to hold that even if removal was timely, it should not be permitted because there were no federal claims alleged that justified removal. (See prior related posting.)

Prosperity Gospel May Have Helped Create Sub-Prime Mortgage Victims

On Wednesday, banks received details from the FHA on implementing the new "Hope for Homeowners" program. The program will allow some over-extended borrowers to refinance into more affordable mortgages. (CNN Money). It may be that one group of religious believers will be particularly interested. Time Magazine today suggests that the teachings of pastors preaching the Prosperity Gospel have made their followers more likely to be victims in the current mortgage crisis. The central teaching of these churches-- that God will "make a way" for the poor to enjoy the luxuries of life —encouraged followers to take out sub-prime mortgages that were beyond their means. Author Jonathan Walton says congregants were likely to believe: "God caused the bank to ignore my credit score and blessed me with my first house." Those who study the movement say it is likely that Prosperity Gospel congregants have been disproportionately victims in the current bursting of the housing bubble.

Court Finds No Viewpoint Discrimination In Teacher's Actions On Jesus Poster

In Peck v. Baldwinsville Central School District, (ND NY, Sept. 30, 2008), a New York federal district court concluded that a kindergarten teacher and a school principal did not engage in viewpoint discrimination when they displayed a student's poster on environmental issues only after folding a picture of Jesus on the poster under so that it was not visible. The court found that plaintiffs had not proven that the teacher would have treated a purely secular image that was non-responsive to a class assignment any differently. The posters were to display what students had learned from the environmental curriculum they had studied. The court also concluded that the teacher and principal had a legitimate pedagogical concern that if the poster were displayed in full, other parents might think that the school was teaching religion. The case was on remand to the court from the Second Circuit. (See prior posting.)

FLDS Mother Seeks Damages Against Texas For Legal Action After Ranch Raid

In the continuing litigation stemming from Texas Child Protective Services' (CPS) raid last April on an FLDS Ranch compound, one mother has taken the offensive in attempting to get the case against her, and efforts to remove her child, dismissed. Yesterday's Deseret News reports that Naomi Johnson has filed a motion alleging that the abuse charges against her were frivolous, and that the state is continuing the case merely as an effort to save face and minimize its liability. Johnson is not only seeking dismissal, but also an award of damages and attorneys' fees, claiming that the only purpose for CPS' action was to destroy "disfavored religious beliefs, to turn a profit and to disseminate false allegations of abuse to other agencies." Litigation has already been dropped against some 304 of the original 439 children who were taken into temporary custody and then released back to a parent after CPS lost in the Texas Supreme Court.

Amish Farmer's Fine For Refusing To Comply With Waste Disposal Rules Upheld

In Ebensburg, Pennsylvania, a state court judge affirmed the earlier conviction of Amish farmer Andy Swartzentruber who refused on religious grounds to install holding tanks and contract with a certified sewage hauler for disposal of waste from two out houses on his property used by Amish school students. However the court dismissed charges against school elder Sam Yoder, saying that compliance was the responsibility of the landowner. Yesterday's Morning Call reports that the toilets at issue have now been replaced, but the new ones do not comply with regulations either. The attorney for the county Sewage Enforcement Agency said that obtaining a permit to treat sewage with proper levels of lime would satisfy regulations and allow dumping of human waste on a field as the Amish now do. Members of the Amish community are willing to use the lime, but are not willing to apply for the permit. Defendant Andy Swartzentruber was ordered by the court to bring the toilets into compliance within 30 days or else pay a $500 fine. (See prior related posting.)

ADL Reports Increase In Anti-Semitic Internet Postings During Financial Crisis

The Anti-Defamation League reported yesterday that as the financial crisis grows in the U.S., there has been a dramatic increase in the number of anti-Semitic statements posted on Internet discussion sites relating to finance and the economy. Many of the messages charging Jewish control of government and finance surfaced in message board comments relating to the collapse of Lehman Brothers. Operators moderating message boards, such as Yahoo! Finance, have been quickly removing the anti-Semitic postings, but their volume has made it difficult to keep up with them. A number of blogs and conspiracy, neo-Nazi and white supremacy websites have also carried anti-Jewish comments relating to the economic situation.

Parents Charged With Homicide For Relying On Faith Healing

In Clackamas County, Oregon, in the second case of its kind in the county this year (see prior posting), parents have been arrested for negligent homicide for failing to seek medical treatment for their son. KTVB News reports that Jeffrey and Marci Beagley voluntarily surrendered themselves yesterday and posted bond in connection with charges growing out of the death of 16-year Neal Beagley from complications from a urinary tract infection. The parents attempted to heal their son with prayer instead of medical intervention.

Arkansas Court of Appeals Says Mother's Religion Was Not Factor In Custody Award

In Hicks v. Cook, (AR Ct. App., Oct. 1, 2008), Andrea Hicks, mother of a 2-year old child, appealed a trial court's shifting of custody to child's father, arguing that the trial judge impermissibly based his decision on his perception of Hicks religious beliefs. In his decision, the trial judge indicated concern about Hicks comments that she was involved with the Wicca religion. On appeal, Judge Gladwin's opinion for himself and Judge Glover found that the trial court did not base its decision on Hicks' religious involvement, and, even if it did, this was harmless error in light of other grounds for changing custody. Judge Griffen wrote a concurring opinion, as did Judge Marshall. Judge Hart dissented, as did Judge Heffley. Foster's Daily Democrat reported on the decision yesterday.

NY School's Plan For Yoga Creates Church-State Controversy

In Massena, New York, to the surprise of the Massena Board of Education, a church-state controversy has broken out over plans to introduce yoga in the classroom as a technique to relieve stress before exams. Newsday reported yesterday that the Board has agreed to delay its decision on adopting the program and has invited two teachers who have developed the proposal to demonstrate the relaxation techniques at this month's Board meeting. Rev. Colin Lucid of Calvary Baptist Church, one of the opponents, said: "We are not opposed to the benefits. We can understand the benefits. We are opposed to the philosophy behind it and that has its ties in Hinduism and the way they were presenting it." School board president Julie Reagan, however, said that there are no religious motives involved and that Federal grants are available to teachers seeking yoga certification. Some 100 schools in 26 states have already introduced yoga.

2009 Religious Freedom Moot Court Announced

George Washington University Law School has announced that it will host the 2009 National Religious Freedom Moot Court on Feb. 6-7. According to organizers, this year's problem will deal with the applicability of the "ministerial exception" in state civil rights claims alleging employment discrimination on the basis of sexual orientation.

Author Suggests Church-State Questions For Tonight's Vice-Presidential Debate

Author Susan Jacoby, writing at Newsweek's On Faith, sets out her suggestions for the questions on church-state issues that should be asked of Joe Biden and Sarah Palin at tonight's vice-presidential debate. She suggests seven specific questions, with an emphasis on how the candidates view-- both broadly and narrowly-- church-state separation issues.

UPDATE: On last night's CBS Evening News, Katie Couric, ahead of tonight's debate, asked each of the vice-presidential candidates several questions. Two were of particular interest. Here are their answers to a question on church-state separation, and here are their responses to a question about Roe v. Wade.

Army Confirms Anti-Semitic Incident During Solider's Basic Training

The Public Record reported Tuesday that Georgia Senator Saxby Chambliss received confirmation from the Pentagon of an anti-Semitic incident suffered by Army Private Michael Handman during basic training at Ft. Benning, GA. Handman was subjected to anti-Jewish epithets and forced by his drill sergeants to remove his yarmulke (head covering) during dinner. Subsequently he was beaten by fellow-soldiers, resulting in his being hospitalized with a concussion.

A Pentagon investigation into the anti-Semitism (but not the beating) concluded that two non-commissioned officers had: "inadvertently violated the Army Regulation concerning the free exercise of religion by requiring the Soldier to remove his yarmulke and by using inappropriate terms when referencing the Jewish faith. While the actions of the NCO’s were not meant to be malicious, and were done out of ignorance for regulations and cultural awareness, this does not excuse their conduct. The command intends to reprimand both NCO’s for their conduct; require them to present formal blocks of instruction on what religious are authorized for wear; and finally, the battalion chaplain will instruct all cadre members on the Army policy concerning religious accommodation."