Court Lifts TRO In Dispute Between Former Amish Man and Loan Society

In Stoltzfus v. Old Order Amish Helping Program, (ED PA, Feb. 26, 2009), a Pennsylvania federal district court lifted a temporary restraining order it had previously issued in a dispute between an former member of the Amish faith and an organization that loans funds to members of the Amish faith. Today's Lancaster (PA) Intelligencer Journal reports on the background of the lawsuit.

Daniel Stoltzfus operated a metal working business that had borrowed $300,000 from the Old Order Amish Helping Program. Stoltzfus claims that leaders of the Amish Council of Lancaster took various actions against him and his business after he announced he had become a born again Christian. They also objected to Stoltzfus doing business with a Jewish businessman. Stoltzfus was told not to expand his business, and his employees were told to stop working for him or else they would be shunned from the Amish community. Council members attempted to get Stoltzfus' wife to leave him and filed unfounded complaints of child abuse against Stoltzfus. Interest rates on his mortgage were raised and his insurance was cancelled, leading Stoltzfus to default on his mortgage payments. The court's lifting of the TRO was based largely on the fact that many of plaintiff's complaints were already the subject of state court and bankruptcy court adjudications.

9th Circuit Says Respondeat Superior Claims Can Be Asserted Against Holy See

In Doe v. Holy See, (9th Cir., March 3, 2009), the U.S. 9th Circuit Court of Appeals partially affirmed and partially reversed a 2006 Oregon federal district court decision that rejected the Vatican's sovereign immunity claim in a lawsuit against it by a victim of a priest's sexual abuse. (See prior posting.) The 9th Circuit's conclusions were reflected in a per curiam opinion, that was accompanied by a concurrence and a dissent.

The court's controlling opinion first held that while denial of immunity to a foreign sovereign is an appealable order, plaintiff's cross-appeal on whether the claim falls within the commercial activity exception to the Foreign Sovereign Immunities Act is not subject to an interlocutory appeal. The court also concluded that "Doe has not alleged sufficient facts to overcome the 'presumption of separate juridical status'" for the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago and the Order of the Friar Servants. Thus their acts are not attributable to the Vatican.

In connection with plaintiff's claim against the Vatican for negligent retention, supervision and failure to warn of the abusive priest, the court held that the Holy See is shielded from tort claims because the alleged negligence arose from a discretionary function. However, the court held that the pleadings adequately alleged respondeat superior liability that can be reached under FSIA's tortious act exception:

Doe has clearly alleged sufficient facts to show that his claim is based on an injury caused by an "employee" of the foreign state while acting "within the scope of his . . . employment," as required to come within the FSIA's tortious act exception. § 1605(a)(5).

The case was remanded to the district court for a determination of whether plaintiff can prove these allegations.

Judge Fernandez, concurring, also urged giving the parties additional guidance, saying: "if we had jurisdiction I would not apply the commercial activity exception to this case."

Judge Berzon, dissenting in part, argued that the court has jurisdiction to decide-- and should conclude-- that the commercial activity exception is an alternative ground on appeal on which to affirm the district court's denial of immunity that was based on a different rationale below. Thus she would have permitted plaintiff to proceed with the negligent retention and supervision and the failure to warn claims. She would also have rejected the Vatican's free exercise challenge to jurisdiction, finding that foreign sovereigns are not protected by the First Amendment. AP yesterday reported on the decision. [Thanks to Bob Ritter for the lead.]

Suit Challenges School's Limits on "See You At the Pole" Posters

Yesterday, four sets of parents filed a federal lawsuit against the Wilson County, Tennessee Board of Education and various school officials challenging Lakeview Elementary School's restrictions on student posters advertising the annual "See You At the Pole" prayer event. The school banned posters containing religious references, and required parents to cover over religious references on posters that families had made and had already put on display in the school. The complaint (full text) in Gold v. Wilson County School Board of Education, (MD TN, filed 3/3/2009) alleges that the school's action violates plaintiffs' freedom of speech, the Establishment Clause and the 14th Amendment's due process and equal protection clauses.

The school's limitation on posters was instituted after a federal court in another lawsuit barred Lakeview school administrators and teachers from promoting or taking part in the student "See You At the Pole" event and ordered that any student flyers or posters promoting the event contain a disclaimer indicating the event is not endorsed by the school. That lawsuit broadly challenged activities by a parents' group in the school known as "Praying Parents." (See prior posting.) Alliance Defense Fund issued a press release announcing yesterday's lawsuit. The release contains links to photos of the disputed posters. It also links to Plaintiff's Motion for a Preliminary Injunction and the memorandum in Support of the Motion. Yesterday's Tennessean also reports on the lawsuit.

Pennsylvania Buys Bibles For Its Legislators

The Philadelphia Inquirer reported last week that the Pennsylvania state General Assembly spent $13,700 this year purchasing Bibles and other books for legislators to use in taking their oaths of office last month. It has been traditional for decades in the state for each legislator to receive a personalized holy book at government expense at the beginning of each term. They have a choice of over a dozen alternatives. 196 of the 203 members took up the offer this year, with the New American Catholic Bible being the most popular pick. One legislator who used his own Bible to take the oath nevertheless ordered a copy of the Qur'an at state expense because he had always wanted to read it. Americans United yesterday issued a press release criticizing the state's policy.

New Mexico Orders Religious Curriculum In State-Operated Home School Removed

Yesterday's Farmington NM Daily Times reports on the church-state controversy at Family Home School in Bloomfield, NM. The school, begun 11 years ago, is operated in a portable building on the campus of a public elementary school in the Bloomfield School District. It serves children in grades K-4 whose parents have chosen this alternative. Teacher Kathy Harper uses a well-known Christian curriculum purchased from A Beka Academy. Typically home school families and private institutions use the curriculum. Last month, state education secretary Veronica García wrote Bloomfield Superintendent Randy Allison ordering the curriculum to be withdrawn. State law prohibits religious curriculum from being taught in public schools. The school district has requested permission to keep the curriculum until the end of the year to avoid disruption of teaching.

Cameroon Government Will Share Cost of Pope's Visit With Church

All Africa reported yesterday that the government of Cameroon and the Church will share the cost of Pope Benedict XVI's visit to the country later this month. Expenses borne by the Church include transportation and part of the cost of housing for some 120 high-ranking Catholic clergy from around Africa. The government will bear the costs of venues for the Pope's public events as well as items like communication and security. The Pope will meet with Muslim and Protestant leaders, as well as the Bishops of Cameroon.

Recent Prisoner Free Excercise Cases

In Sylvester v. Cain, (5th Cir., Feb. 20, 2009), the U.S. 5th Circuit Court of Appeals rejected plaintiff's claim that he was he was retaliated against on the basis of his religion when he filed a grievance. It also refused to consider a RLUIPA claim that had not been raised below.

In Barhite v. Caruso, 2009 U.S. Dist. LEXIS 13609 (WD MI, Feb. 23, 2009), a Michigan federal district court held that plaintiff inmate had not shown that his religious exercise was burdened when prison authorities removed pictures of young women from his possession. He claimed that they were taken because he was a Mormon after a Texas raid on and FLDS complex that led to removal of children.

In Jordan v. Caruso, 2008 U.S. Dist. LEXIS 98649 (WD MI, Dec. 8, 2008), a Michigan federal district court refused to dismiss free exercise claims brought by an African-American Jewish inmate who alleged that he was not excused from work on Saturdays and was not permitted to attend religious services by video conference equipment.

In Davis v. Hawaii, 2009 U.S. Dist. LEXIS 14004 (D HI, Feb. 23, 2009), an Hawaii federal magistrate judge granted defendants' motion to transfer to an Arizona federal district court a prisoner's claim that his rights were violated when Arizona prison officials prevented him from practicing his Native Hawaiian religion when they failed to hold a Makahiki closing ceremony feast.

In Corbeil v. Moore, 2009 U.S. Dist. LEXIS 14388 (WD LA, Jan. 30, 2009), a Louisiana federal magistrate judge dismissed an inmate's complaint that he was denied a kosher diet by prison authorities.

In Ahmed v. Willis, 2009 U.S. Dist. LEXIS 14245 (ED VA, Feb. 23, 2009), a Virginia federal district court dismissed plaintiff's claims under RLUIPA and the 1st Amendment challenging his removal from the Ramadan fasting list.

Indian State Proposes Controlling Board For Church Property

In the Indian state of Madhya Pradesh, the government is taking steps to form an agency to manage Catholic Church properties, including cemeteries, similar to the Muslim Wakf Board that manages Muslim religious properties. Calcutta's Telegraph reported Saturday that Church leaders plan to file suit in the Jabalpur High Court to prevent implementation of the plan. The state's Minorities Commission says the proposal is designed to increase transparency in management of Church properties.

Supreme Court Remands Companion Summum Case To 10th Circuit

As previously reported, last week the U.S. Supreme Court decided Pleasant Grove City v. Summum, holding that Pleasant Grove City, Utah need not acccept a "Seven Aphorisms" monument for a local park. In the 10th Circuit Court of Appeals below, there was a companion case decided at the same time, Summum v. Duchesne City, which involved a more complicated version of the same sort of underlying dispute. In that case, the only display already in the city's park was a 10 Commandments monument, and the city attempted to avoid Summum's request by transferring the land under the Ten Commandments display to a private party. (See prior posting.)

A petition for cert. had been filed in this companion case as well, but had never been acted upon by the Court. (See prior posting.) Today, in a brief order (Docket No. 07-690), the Court granted certiorari, vacated the judgment below and remanded the case for further consideration in light of the decision in the Pleasant Grove City case. Interestingly, the Court has also granted cert. this term in a case involving land transfers in order to avoid Establishment Clause concerns. (See prior posting.) However the "government speech" holding in the Pleasant Grove City case may be dispositive in the case remanded today, regardless of the Court's resolution on land transfers.

Cert. Denied In Ban on Coach Joining Team In Prayer

The U.S. Supreme Court today denied certiorari in Borden v. School District of East Brunswick, (Docket No. 08-482, March 2, 2009) (Order List.) In the case, the 3rd Circuit upheld the East Brunswick, New Jersey School District’s policy prohibiting faculty participation in student-initiated prayer. The lawsuit was filed by high school football coach Marcus Borden who wished join with his team in bowing his head during the team's pre-meal grace and kneeling during a team-led prayer in the locker-room. (See prior posting.)

State Education Officials Examine Tutor's Scientology-Related Techniques

Yesterday's Atlanta Journal Constitution reports that Georgia education officials, in conducting their annual inspection of a tutoring organization, Applied Scholastics, are looking carefully at its use of teaching techniques developed by Scientology founder L. Ron Hubbard. At issue is the question of whether Applied Scholsatic's program is secular, or instead is a disguised method of teaching Scientology. Georgia's state Department of Education approves and monitors tutors that are available for selection by parents of children who fail to meet federal academic standards. Tutors are paid with federal funds.

City's Construction Aid To Historic Church Is Questioned

In 2005, Carson City, Nevada city officials refused to grant First Presbyterian Church a permit to tear down its historic building and construct a new one. The old building, located in an historic district, had ties to Mark Twain who helped build it in the 1860's. However, the city did agree that it would aid the congregation fund the cost of a new building on an adjacent site. In 2006, the city gave the church $67,700 for design costs, and last month supervisors voted the church another $78,800 for sidewalks, landscaping and roof repairs. Now, according to yesterday's Los Angeles Times, Americans United says the funding raises a church-state issue, and threatens to file suit if the Board of Supervisors does not rescind last month's vote.

UPDATE: The Los Angeles Times reported on April 6 that Americans United has decided not to sue at this time because of the reluctance by courts to force religious institutions to return funds already awarded. However AU says it will sue if the city decides to make any more payments in the future.

Malaysia Will Permit Christian Publications To Use Term "Allah"

In Malaysia, the government's Home Ministry has issued an order under the internal Security Act declaring that the use of the word "Allah" in Christian publications is no longer prohibited. The Sun reported last week however that the Feb. 16 order requires any Christian publication using the term to carry in large type on the front cover the statement: "FOR CHRISTIANITY." The newspaper Catholic Herald has been in a dispute for some time with government officials over the paper's use of the term. (See prior posting.) The paper is studying the implications of the new order. (The Star 2/27.)

Recent Articles and Book Of Interest

From SSRN:

• Miranda Perry Fleischer, Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice, (U Illinois Law & Economics Research Paper No. LE09-006, Feb.24, 2009).


• Jeanne L. Schroeder, Totem, Taboo and the Concept of Law: Myth in Hart and Freud, (Cardozo Legal Studies Research Paper No. 253, Feb. 24, 2009).


• Ajay K. Mehrotra, "Render Unto Caesar . . .": Religion/Ethics, Expertise, and the Historical Underpinnings of the Modern American Tax System, (Loyola University Chicago Law Journal, Vol. 40, 2009).

From SmartCILP:

• Raymond B. Marcin, God's Littlest Children and the Right to Live: The Case for a Positivist Pro-Life Overturning of Roe, 25 Journal of Contemporary Health Law & Policy 38-75 (2008).

New Book:

• Lisa A. Runquist & Jeannie Carmedelle Frey, Guide to Representing Religious Organizations, (ABA, Feb. 2009).

California Muslims Distressed After Disclosure of FBI Infiltration of Mosques

Today's Los Angeles Times reports that local Muslims are dismayed after revelations last week that during 2006 and 2007 the FBI used an informant to attend several Orange County (CA)mosques to gather evidence against Afghanistan-born Ahmadullah Sais Niazi who authorities say had ties to Al Qaeda. Since the disclosures, some Muslims are avoiding mosques and praying at home. Others are reducing their contributions to mosques to avoid attracting attention, or donating in cash to avoid creating records. Some mosques are asking speakers to avoid issues like U.S. foreign policy in their sermons.

Episcopal Diocese Sues To Gain Title To Property of Dissident Philadelphia Parish

Last week, according to Virtue Online, the Episcopal Diocese of Pennsylvania filed suit in a Pennsylvania state court seeking to recover the property and assets of Philadelphia's Rosemont Church of the Good Shepherd. While the parish has not formally dissociated itself from the Episcopal Church, the complaint (full text) in Protestant Episcopal Church of the Diocese of Pennsylvania v. Church of the Good Shepard Rosemont, Pennsylvania, (Com Pl, filed 2/19/2009), alleges that those in control of Good Shepard no longer consider the parish to be a constituent part of the Diocese of Pennsylvania or the Episcopal Church. It says that the parish has ceased to act in accord with the Constitution and Canons of the Episcopal Church. In 2002, Bishop Charles Bennison inhibited and "deposed" the parish's leader, Rev. David Moyer, who has been ordained as Bishop by the more conservative Traditional Anglican Union. Last year, a state trial court rejected Moyer's suit that claimed the diocese engaged in fraud when it asserted that Moyer had "abandoned the communion of the Episcopal Church." (See prior posting.)

Catholic Cardinal May Be Appointed To House of Lords for First Time In 500 Years

AP reported yesterday that for the first time in nearly 500 years, a Catholic Archbishop may be appointed to Britain's House of Lords. Prime Minister Gordon Brown raised speculation on the possibility in response to a reporter's question ofnwhether Cardinal Archbishop Cormac Murphy-O'Connor who is retiring later this year is in line for a seat. Brown responded: "These are things to be discussed at a later stage." There are 26 bishops from the Church of England in the House of Lords, and retired chief rabbis have been appointed.However relations with the Catholic Church have been an issue since the 16th century when King Henry VIII broke with the Vatican over its refusal to grant him an annulment.

Questions Continue On Improper Proselytizing In Military

Today's New York Times reports that questions persist on whether the military continues to be involved in improper religious proselytizing. An official military suicide-prevention video shows former Pittsburgh Steelers quarterback Terry Bradshaw talking about how Christian prayer helped him through bouts of depression. The Pentagon says it has received 50 complaints of religious discrimination from all branches of the military from 2005 to 2007. In another incident, a former Air Force Reserve fighter pilot says he received a negative certification and ultimately lost his flying certification after writing a letter complaining about Christian prayers at homecoming ceremonies for service personnel returning from Iraq and Afghanistan. A lawsuit challenging improper promotion of religion in the military is pending in federal court. (See prior posting.)

Meanwhile, the Obama administration may be more sympathetic to complaints about church-state breaches in the military than was the Bush Pentagon. Last week for the first time, a member of the Joint Chiefs of Staff met with activist Mikey Weinstein, head of the Military Religious Freedom Foundation. Air Force chief of staff, Gen. Norton A. Schwartz, acknowledged to Weinstein that there is a problem. But retired General Bruce L. Fister, executive director of the Officers’ Christian Fellowship, said: "the problem is that Christians are going to operate one way or the other, and whenever the church has been persecuted, it’s grown stronger."

Nebraska Appeals Court Dismisses Suit Against God

AP yesterday reported that the Nebraska Court of Appeals has dismissed a lawsuit filed by former state Senator Ernie Chambers against God, seeking an injunction to stop His causing, death destruction and terror through various natural disasters. Last October, a Douglas County (NE) trial judge dismissed to suit because God had not been served with process. (See prior posting.) Chambers appealed arguing that since God is all-knowing, defendant has notice of the lawsuit. Now the Court of Appeals has vacated the judgment saying that courts will not decide abstract questions or hypothetical or fictitious issues.

Likely Nominee To Head EEOC Is Disclosed

The Washington Post reported Saturday that Cassandra Butts is likely to be President Obama's nominee to chair the Equal Employment Opportunity Commission. Butts, a former Harvard Law School classmate of Obama's, is currently deputy White House counsel. Formerly she had positions with NAACP Legal Defense Fund, was on House minority leader Richard Gephardt's staff and was a senior vice president for domestic policy at the Center for American Progress. The EEOC enforces federal employment discrimination laws, including laws banning religious discrimination in employment.