Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Sunday, May 03, 2009
New Approach Attempted In Challenge To Drug Laws By Religious Users
UPDATE: In McMahon v. Iowa Board of Pharmacy, (IA Dist. Ct., April 21, 2009), an Iowa state court reviewed a state pharmacy board's action on rescheduling of marijuana under state law and remanded the case to the Board, holding that it must recommend rescheduling to the legislature if it finds that marijuana has an accepted medical use in the U.S. and is safe for use under medical supervision. Plaintiff in the federal case discussed above was an intervenor in the state case. The pleadings and briefs in the case are available here. Extensive background documents, pleadings and briefs in the attempt to obtain federal reclassification are available here. (Also the link in the original posting has been changed to a version of the opinion that is available without a LEXIS subscription.)
Recent Prisoner Free Exercise Cases
A series of similar screening opinions have recently been released by a California federal magistrate judge. In each, she dismisses the complaint, with leave to amend, holding (among other things) that plaintiff has failed to adequately allege that prison restrictions being challenged infringe on his sincerely held religious beliefs. Each of the following is from Magistrate Judge Sandra M. Snyder in the Central District of California: Chavez v. Ahlin, 2009 U.S. Dist. LEXIS 35063 (April 8, 2009); Languein v. Ahlin, 2009 U.S. Dist. LEXIS 35060 (April 8, 2009); Sanchez v. Ahlin, 2009 U.S. Dist. LEXIS 35062 (April 8, 2009); Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 35050 (April 7, 2009); Sumahit v. Ahlin, 2009 U.S. Dist. LEXIS 35205 (April 9, 2009); Angulo v. Ahlin, 2009 U.S. Dist. LEXIS 35452 (April 9, 2009).
In Ellington v. Director of Corrections, 2009 U.S. Dist. LEXIS 34895 (ED CA, March 30, 2009), a California federal magistrate judge dismissed, on grounds of failure to comply with the procedural rule on joinder, plaintiff's claim that he was denied a kosher diet in compliance with his faith, which consists of House of Yahweh, Kaballah, and Hebrew/Islam. Plaintiff was given leave to refile amended complaints.
In Cowart v. Gonzales, 2009 U.S. Dist. LEXIS 34991 (MD GA, Feb. 24, 2009), a Georgia federal magistrate judge recommended granting summary judgment to defendant in a lawsuit claiming that authorities seized religious material from plaintiff's cell and subsequently had the materials destroyed. The court found that plaintiff had failed to exhaust his administrative remedies as to this claim. Another claim alleging withholding of religious mail for one day was dismissed as not interfering with plaintiff's free exercise of religion.
UPI reported last week that a Nebraska judge refused a state prisoner's request to change his name for religious reasons to "Sinner Lawrence Bilskirnir." Plaintiff is an adherent of the Norse religion.
Utah High Court Finds Church's Theft of Funds Violates Anti-Racketeering Statute
The court also reversed the trial court's holding that Hill could not be awarded punitive damages because of "unclean hands." She had failed to produce tax returns showing she had paid taxes on the funds converted by defendants. Since the damages she was awarded were not based on doctrines of equity, the court concluded that "the hygiene of her hands was never at issue." Friday's Salt Lake Tribune reports on the decision.
Saturday, May 02, 2009
Canadian Court Orders More Hearings On Whether Witness Can Wear Niqab
Australian Court Rejects Muslim Man's Claim of Invalidity of Marriage
The court also rejected a a second argument made by husband. He claimed that the marriage is invalid because it is potentially polygamous, since any Muslim man in Australia can take up to 4 wives. The court accepted the argument by wife's counsel that this would lead to the absurd result of every Muslim marriage in Australia being invalid. Today's Australian reports on the decision.
Teacher's Criticism of Creationism Found Violative of Establishment Clause
The court dismissed claims against the school district, and left for later adjudication the question of the remedy that would be granted against Corbett. Yesterday's Orange County Register and OC Weekly report on the decision.
Obama Will Sign Proclamation, But Not Host Ceremony, On National Day of Prayer
The non-governmental National Day of Prayer Task Force (chaired by Shirley Dobson) has extensive events planned for the day, including a program on Capitol Hill from 9:00 a.m. to noon that will be webcast and broadcast on satellite TV channels.
Preliminary Injunction Permits School Posters Advertising See You At The Pole
Finding that the school had created a limited public forum in the school's lobby and hallway for community, educational, charitable, recreational, and similar groups to advertise events of interest to students, the court concluded:
Requiring the Plaintiffs to cover all religious speech on the posters under the guise of a reasonable time, place and manner restriction reflects a misunderstanding of law, with the result that the Defendants stifled religious speech, while the restrictions imposed to stifle the speech were neither reasonable nor viewpoint neutral....Today's Tennessean reports on the decision, as does a release from Alliance Defense Fund.
The posters invite students and parents to attend the event advertised. By its name, it has a religious connotation, but no one is forced to attend or to engage in a religious exercise; no one is made to read the Bible or pray, and no one is bound to sit in attendance while other students or parents pray. No one is required to accept a religious tract or flyer advertising a religious event, pay attention to a poster, or listen to a religious message.... Mere receipt of an invitation to a religious activity does not rise to the level of support for, or participation in, religion or its exercise to create an Establishment Clause problem.
EEOC Gets Settlement In Suit Against Hospital That Refused Leave For Hajj
Friday, May 01, 2009
Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions
Here is a list (with links) of the majority, concurring and dissenting opinions on church-state, religious freedom and religious discrimination issues that Justice Souter has written during his 19 years on the Court.
Majority opinions:
- McCreary County v. ACLU, 545 U.S. 844 (2005).
- Edelman v. Lynchburg College, 535 U.S. 106 (2002).
- Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).
- Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
- Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995).
- Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
- International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
- Lee v. Weisman, 505 U.S. 577 (1992).
- Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).
- Van Orden v. Perry, 545 U.S. 677 (2005).
- Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
- Good News Club v. Milford Central School, 533 U.S. 98 (2001).
- Mitchell v. Helms, 530 U.S. 793 (2000).
- Agostini v. Felton, 521 U.S. 203 (1997).
- Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).
(Please let me know of any omissions in the list.) [Updated.] [Thanks to Ed Elfrink and Kevin Pybas for additions.]
USCIRF Issues 2009 Report On Religious Freedom Concerns In Various Countries
The Report also places eleven countries on its "Watch List": Afghanistan, Belarus, Cuba, Egypt, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela. (Today's Wall Street Journal carries an op-ed on the growing anti-Semitism in Venezuela.) The Commission calls for close monitoring of Bangladesh, Kazakhstan and Sri Lanka, and says it will issue a report on India later this year after a visit there by USCIRF members.
The USCIRF Report also discusses the role of the OSCE and the United Nations in religious freedom issues and discusses a move by the Organization of the Islamic Conference in the U.N. to limit free speech through banning "defamation of religions." Finally the Report discusses continuing problems in the U.S. policy of expedited removal for asylum seekers. [Thanks to Tom Carter for the lead.]
UN Official Surveys Religious Freedom In Macedonia
The Constitution provides that religious communities and groups are separate from the state and equal before the law. The Government therefore has a delicate role to play.... It ... has to stay even-handed in granting official status to all communities and yet protect the rights of all individuals, whether they are theistic, atheistic or non-theistic believers. A number of my interlocutors pointed to the perception that the two biggest registered religious communities in the country wield considerable political influence and are able to make inroads to the Constitutional concept of separation of state and religion.Ms. Jahangir expressed astonishment at Macedonians' reaction to a recent court decision striking down teaching of religion in the school classroom. She also expressed concern about reports of incitement to racial or religious hatred.
I was encouraged by the reforms made in the 2007 Law on Religious Communities and Religious Groups. It is in line with international human rights standards; however, the implementation of the law has so far not been streamlined, for example with regard to registration issues....
Blogger Sues Police Over Revelation of Identity To Church
RLUIPA Decision On Church Zoning Appealed By County To 10th Circuit
ACLU Suit Challenges Zoning Limits On Church Use For Homeless Shelter
Justice Department Settles Lakewood, NJ Housing Discrimination Case
The defendants transferred or attempted to transfer Hispanic and African American tenants from their apartments located in its most desirable building to make room for Orthodox Jews whom they courted as new tenants from 2002 to 2004. The defendants then assigned the non-Jewish tenants to less desirable apartments in the rear of the property, which had fewer amenities and were less well maintained than the most desirable building at the front of the property. The defendants charged the incoming Jewish tenants less rent than they did to non-Jewish tenants for apartments of similar size.The settlement, which still requires court approval, calls for defendants to pay $170,000 to identified discrimination victims and a $30,000 civil penalty to the government. (See prior related posting.) [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]
Britain To Require Sex Ed In Schools, But With Modifications For Faith Schools
Thursday, April 30, 2009
3rd Circuit Rules On Constitutional Claims By 3 Abortion Protesters
In McTernan v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court concluded that the burden placed on McTernan delivering his religiously motivated message was not pursuant to a neutral and generally applicable regulation since Clinic personnel, clients and escorts were permitted access to the street. Thus the restriction was subject to a strict scrutiny analysis. The court remanded the case for trial for a jury to determine whether the restriction served a "compelling" governmental interest and was narrowly tailored. The court also remanded McTernan's speech claim for trial. It held that police directives as to speech create potentials for arbitrary enforcement and are subject to heightened scrutiny. It held that factual questions remain as to whether the police restrictions were "narrowly tailored" to further the government's "significant" interest in traffic safety. The court however dismissed certain of McTernan's claims asserting municipal liability.
In Snell v. City of York, Pennsylvania, (3d Cir, April 27, 2009), the court found that no reasonable jury could find that the free exercise restrictions placed on plaintiff were "generally applicable", but remanded for trial on whether there was a "compelling" governmental interest in the restrictions. It remanded his free speech claim for trial on whether police restrictions were "narrowly tailored." The court also remanded Snell's 4th Amendment claim for a jury to decide whether there was probable cause for his disorderly conduct arrest, but rejected his excessive force claim. The court dismissed certain of Snell's claims asserting municipal liability.
In Holman v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court found that plaintiff failed to demonstrate that any restriction had been placed on his free speech or free exercise rights. The court also found no 4th Amendment violations in Holman's arrest for trespass and affirmed the trial court's grant of summary judgment for defendants.
Alliance Defense Fund issued a release discussing two of the cases. (See prior related posting.)
Obama's First 100 Days Performance On Religion and Faith Is Assessed
In his first 100 days in office, President Obama has sought a bold new role for faith in the White House, which aides say is aimed largely at dialing down the decades-old culture wars. Without changing his party's liberal stances on social issues like abortion, for example, Obama is nonetheless attempting to reach out to religious conservatives by pledging to work toward reducing demand for abortion.... So far, the project has blunted the Christian right's usual criticism of Democratic administrations .... But it has also alienated some traditionally Democratic constituencies, from advocates for strict church-state separation to the gay rights movement. Obama's most substantive move on religion so far has been launching his own version of Bush's faith-based initiative office, tasked with helping religious groups get federal dollars for social service projects for the needy.Americans United used the occasion to issue a "report card" on Obama's handling of church-state issues. It awarded the President an "A" on opposition to theocracy and judicial appointments. Obama received an "A-" on tax aid to religious schools and administration appointments. He received an "Incomplete" on his faith-based initiative.
Senate Judiciary Hearing Held On Nominees for Civil Rights Division, Judgeships
Yesterday, the U.S. Senate Judiciary Committee held a hearing on three nominees (webcast of hearing):
- Thomas E. Perez, to be Assistant Attorney General, Civil Rights Division, Department of Justice. (See prior posting.)
- David F. Hamilton, to be United States Circuit Judge for the Seventh Circuit. (See prior posting.)
- Andre M. Davis, to be United States Circuit Judge for the Fourth Circuit. (See prior posting.)
CQ reports that the most controversial of the nominations is that of David Hamilton. Apparently, this is because as a federal district court judge, Hamilton wrote two decisions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Republicans boycotted the first Judiciary Committee hearing on Hamilton on April 1, claiming that Democrats were moving too quickly on it. Only one Republican (Oklahoma's Tom Coburn) was in attendance yesterday.