Claims By Chuch Founder Against City Employees Dismissed

In Kovalev v. City of Philadelphia, (ED PA, April 29, 2009), a Pennsylvania federal district court dismissed a series of constitutional claims brought by Sergei Kovalev against the city and several city employees challenging inspection attempts and the refusal of a building permit for a small additional structure on property that contained his home as well as operations of his "International Church of Eternal Revival ." In the lawsuit, filed pro se, Kovalev claimed the inspection was instigated by a state senator whose office was nearby and that he is a victim of discrimination because he is a foreign born U.S. citizen from Eastern Europe. He says any construction was "done in an act of worship to God." The court found a lack of evidence to support his 1st, 4th and 14th Amendment claims and held that individual defendants had qualified immunity.

Cert. Denied In Challenge To Marijuana Laws

The U.S. Supreme Court today denied certiorari in Olsen v. Holder, (Docket No. 08-777) (Order List.) In the case (captioned below as Olsen v. Mukasey) the U.S. 8th Circuit Court of Appeals held that plaintiff's attempt to enjoin enforcement against him of the federal and Iowa's controlled substances acts should be dismissed. Plaintiff, a member of the Ethiopian Zion Coptic Church, uses marijuana for sacramental purposes. (See prior posting.) Meanwhile, in a different approach, plaintiff has attempted in both state and federal forums to require marijuana to be removed as a Schedule I controlled substance now that a number of states recognize its legitimacy for medical use. The attempts have met varying degrees of success. (See prior posting.)

Controversy Continues Over UNLV's Proposed Policy On Bias Incidents

At the University of Nevada Las Vegas, faculty concern continues over the University's proposed Policy on Bias Incidents and Hate Crimes. The draft defines a "bias incidents" as:

verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias based on actual or perceived race, ethnicity, color, religion, creed, sex (including gender identity or expression, or a pregnancy related condition), sexual orientation, national origin, military status or military obligations, disability (including veterans with service-connected disabilities), age, marital status, physical appearance, political affiliation, or on the basis of exercise of rights secured by the First Amendment of the United States Constitution.... Bias incidents do not include statements made on controversial issues that serve to promote intellectual inquiry into those issues. While such statements and related discussion can cause feelings of discomfort, a "reasonable person" can and must differentiate these statements from bias incidents.

The draft encourages reporting of bias incidents to UNLV police. After the ACLU of Nevada criticized the draft as an unconstitutional infringement on free speech, Nevada's chancellor of public higher education called for the policy to be rewritten. (Las Vegas Sun, 4/27). But now faculty are concerned that UNLV President David Ashley chose Christine Clark, the vice president of diversity and inclusion, to head a task force to review the draft. She helped develop the initial draft, and critics say she ignored their concerns at that time. (Las Vegas Sun, 5/4). The policy was drafted in response to a call by the state Board of Regents last year for all state schools to develop policies on bias incidents. (Las Vegas Sun, 4/25.)

Pakistan Islamists Reject Sharia Court Set Up By Government In Peace Deal

Last month, the government of Pakistan entered an agreement with Taliban insurgents to set up Islamic courts in the Malakand Division of the North West Frontier Province in order to end fighting there. (See prior posting.) Voice of America reports that on Saturday, Pakistani authorities implemented the agreement by setting up an Islamic appellate court and appointing two senior judges to it. However Sufi Mohammad who mediated the agreement rejected the announcement saying that the government is not competent to appoint Islamic judges without first consulting him as senior cleric. He also said the government's ongoing offensive against the Taliban was to have been halted before the court was set up. Taliban say they will not lay down their arms until those conditions are met. The government says that private individuals cannot be involved in process of appointing judges.

Pope Travels To Jordan, Israel, West Bank At End of This Week

Pope Benedict XVI will be visiting the Middle East beginning the end of this week. He will be in Jordan from May 8 to 11. (Tidings Online.) Then he moves on to visit Israel and the West Bank from May 11 to 15, . The Israel Ministry of Tourism has set up a website with information about this portion of the Pontiff's trip. The website includes Benedict's itinerary and presumably will be updated with reports during his trip. The Forward last week previewed the visit in an article titled Pope's Visit to Israel Fraught With Potential Minefields. And Politics Daily today has a lengthy review of the religious, political and personal issues that confront the Pope on the trip. Meanwhile Zenit yesterday reported that the Pope will deliver 29 discourses and homilies during his week in the Middle East, and will meet with both government officials and representatives of Christianity, Islam and Judaism.

Recent Articles and Books of Interest

From SSRN:

• Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time, (Duke Law Journal, Vol. 59, January 2010).


• Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, (Boston University Law Review, Vol. 89, 2009).

From SmartCILP and elsewhere:

• Mohamed R. Hassanien, International Law Fights Terrorism in the Muslim World: A Middle Eastern Perspective, 36 Denver Journal of International Law & Policy 221-253 (2008).


• Frank Ravitch, Playing the Proof Game: Intelligent Design and the Law, 113 Penn State Law Review 841-897 (2009).


• Mark Strasser, The Protection and Alienation of Religious Minorities: On the Evolution of the Endorsement Test, 2008 Michigan State Law Review 667-724.


• Symposium--First Amendment Rights in America's Public Schools: From the Schoolhouse Gate to the Courthouse Steps. Welcoming remarks by Rex R. Perschbacher and Alan Brownstein; articles by Vikram David Amer, Kenneth Starr, R. George Wright, Alan Brownstein, Erwin Chemerinsky, Steven K. Green, Joan W. Howarth, Melissa Rogers and Steven D. Smith. 42 UC Davis Law Review 631-1057 (2009).


• Symposium: Islam, Democracy, and Nation Building. Articles by Joseph N. Kickasola, John H. Johns, Stephen Schwartz, Mehrangiz Kar, Thomas Najjar and Jennifer Jefferis; note by Eva M. Robinson. 6 Regent Journal of International Law 271-499 (2008).


• Brian Leiter, Why Tolerate Religion?, 25 Constitutional Commentary 1-27 (2008).

New Books:

• John Witte, The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered, (Cambridge Univ. Press, April 2009), reviewed by the Center for the Study of Law and Religion.


• T. Jeremy Gunn, Spiritual Weapons: The Cold War and the Forging of an American National Religion, (Praeger Publishers, Dec. 2008), reviewed by the Center for the Study of Law and Religion.

Q&A on Hate Crimes Bill Seeks To Reassure Religious Leaders

Third Way has recently issued a memo titled Questions and Answers about the Hate Crimes Bill for People of Faith. It attempts to alleviate concerns raised particularly by conservative Christian groups about religious freedom and the Hate Crimes Prevention Act that has recently passed the House. (See prior posting). The memo concludes that pastors could not be prosecuted under the bill for preaching that homosexuality is an abomination, or saying that gay people will go to hell. It points to specific language in the bill, language of the House Report and the special role of the 1st Amendment. The memo also points out that the bill expands protection against religiously motivated hate crimes:

Current federal law only protects against hate crimes based on
religion if the person was targeted because they were engaged in a federally protected activity like voting or going to school. The legislation under consideration by Congress would remove that limitation.

[Thanks to Michael Lieberman for the lead.]

5th Circuit: Prison's Rules On Buddhist Services May Violate RLUIPA

In Newby v. Quarterman, (5th Cir., April 30, 2009), the U.S. 5th Circuit Court of Appeals upheld a Buddhist inmate's challenge to Texas prison rules that require religious services in his prison unit to be conducted by either a chaplain or an approved religious volunteer. There were no approved religious volunteers for Buddhist ceremonies, and the regular chaplain refused to conduct Buddhist ceremonies because he is unfamiliar with Buddhist religious practices and was occupied by other obligations. Ruling on plaintiff's claim under RLUIPA, the court held that there is a reasonable basis for a fact finder to conclude that the outside-volunteer policy creates a substantial burden on plaintiff's free exercise and that Texas has not furthered its interest in prison safety and security through the least restrictive means. The court also reversed the district court's dismissal of plaintiff's free exercise and equal protection challenges to the prison's outside-volunteer policy.

1st Amendment Challenge To Termination of Parental Rights Dismissed

In Haines v. New Hampshire Department of Health and Human Services, 2009 U.S. Dist. LEXIS 36331 (D NH, April 28, 2009), a New Hampshire federal magistrate judge held that the Rooker-Feldman doctrine deprives the federal court of jurisdiction to review a state court's termination of a mother's parental rights and rulings on visitation. She raised 1st Amendment objections to the state's order, saying that the state court's rulings were based on her religious objection to undergoing a mental health evaluation that was based on principles of secular psychology or psychiatry.

Zoning Challenge Dismissed On Ripeness Grounds

In Miles Christi Religious Order v. Northville Township, 2009 U.S. Dist. LEXIS 36228 (ED MI, April 30, 2009), a Michigan federal district court dismissed as unripe a challenge to a Township's zoning determination classifying as a small church the house where Miles Christi priests and monks reside and conduct classes and services. Miles Christi, a Catholic religious order, challenged the determination as a violation of RLUIPA, the 1st and 14th Amendments and various provisions of the Michigan constitution. The court found that plaintiffs had not appealed to the zoning board of appeals the township's determination that a change to a more intensive use of the property had occurred. Nor did they submit a site plan or seek a variance or other administrative relief from the zoning board of appeals.

New Approach Attempted In Challenge To Drug Laws By Religious Users

In Olsen v. Holder, (SD IA, April 27, 2009), a priest in the Ethiopian Zion Coptic Church-- which employs marijuana in its religious rituals-- attempted a new approach in challenging federal laws banning marijuana use. Instead of asserting free exercise claims, he sought a declaratory judgment and injunction against continuing marijuana as a Schedule I drug under federal law. (Background on Controlled Substances Act.) He alleged that marijuana is only appropriately listed on Schedule I if it has "no currently accepted medical use in the United States," and that now 12 states have enacted laws finding that it does have medical uses. The court, however, dismissed the case on jurisdictional grounds, holding that the appropriate route to raise the issue is to appeal to the appropriate Court of Appeals a refusal by the DEA to reschedule marijuana. An appeal by plaintiff of a refusal by the DEA is already proceeding on a parallel track. (See prior related posting.)

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

In Johnson v. Killian, 2009 U.S. Dist. LEXIS 34670 (SD NY, April 21, 2009), a New York federal district court rejected for failure to exhaust administrative remedies plaintiffs' objections to Muslim inmates being limited to performing congregational prayer once a day, five times per week, and limits on their ability to pray individually in their cells.

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

In Hill v. Estate of Owen A. Allred, (UT Sup. Ct., May 1, 2009), the Utah Supreme Court held that an elaborate scheme by a religious group and some of its followers to steal $1.54 million from a woman who thought the funds were being used to purchase a ranch violates Utah's Pattern of Unlawful Activity Act. The statute, Utah Code Ann. § 76-10-1605, allows an award of double damages and attorneys' fees to plaintiff, Virginia Hill, who was injured by a pattern of unlawful activity. Drawing on federal precedent, the court rejected defendants' claim that conversion of Hill's money involved only a single episode of criminal activity.

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.

Canadian Court Orders More Hearings On Whether Witness Can Wear Niqab

Toronto's Globe and Mail and the National Post report on a decision handed down last Thursday by Ontario's Superior Court of Justice on whether a Muslim woman should be allowed to testify in court with her face fully covered by a niqab. The Toronto-area woman wants to testify with her face veiled at the trial of two men charged with sexually assaulting her when she was a child. A Provincial Court judge refused her request, finding that she was motivated more by comfort than by religious belief. The Superior Court reversed the decision, instructing the Provincial Court to hold two hearings-- one on whether the woman's beliefs are sincere, and a second on whether the evidence rules permit introduction of testimony from a veiled witness.

Australian Court Rejects Muslim Man's Claim of Invalidity of Marriage

The Family Court of Australia has handed down an interesting decision in Wold & Kleppir, ([2009] FamCA 178, Feb. 6, 2009), a case in which a husband defended against his wife's claim for a property settlement by asserting that the couple were never validly married. The court rejected husband's claim that he believed the ceremony performed by an Imam was merely one to convert to Islam the woman with whom he was living and with whom he had fathered two children. The court concluded that the husband "well knew it was a ceremony 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

In C.F. v. Capistrano Unified School District, (CD CA, May 1, 2009), a high school student and his parents brought suit against high school history teacher James Corbett alleging that Corbett violated the Establishment Clause by making repeated comments in class hostile to religion in general and Christianity in particular. The court found that many of the challenged statements did not mention religion, but merely took positions on issues that particular religious groups find offensive. Of several comments specifically mentioning religion, the court found only one of them violative of the Establishment Clause-- criticism of fellow teacher John Peloza who advocated creationism. Corbett said, in part: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The court concluded there was no legitimate secular purpose in Corbett's characterization of Creationism as "superstitious nonsense," and that the characterization sent a message of disapproval of religion.

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

At yesterday's White House Press Briefing (full text), Press Secretary Robert Gibbs announced that on Thursday, May 7, the President will sign a Proclamation recognizing the day as National Day of Prayer. The announcement follows extensive speculation and uncertainty about the President's plans. (See prior posting.) Following up, CBN News reports that the White House will not hold any additional special ceremony marking the day. In taking this route, President Obama reverts to the practice of Presidents Reagan and George H.W. Bush, and moves away from the elaborate White House commemoration held each year during the George W. Bush administration.

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

In Gold v. Wilson County School Board of Education, (MD TN, May 1, 2009), a Tennessee federal district court judge issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior related posting.) In a previous lawsuit, a court found that Lakeview administrators and some of its teachers had violated the Establishment Clause by their involvement with the "Praying Parents" group at the school. (See prior posting.) Now, however, the court essentially concluded that school officials had over-reacted to that earlier decision.

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....

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.

Today's Tennessean reports on the decision, as does a release from Alliance Defense Fund.

EEOC Gets Settlement In Suit Against Hospital That Refused Leave For Hajj

The EEOC announced this week that a Tennessee federal judge on Monday issued a two-year consent decree settling a religious discrimination lawsuit that the agency had filed against Nashville's Southern Hills Medical Center. The suit alleged that the hospital had refused to permit a Muslim employee to use earned vacation time for an extended leave to make his Pilgrimage to Mecca. It told employee Wali Telwar that instead he would have to resign his position and reapply. (See prior posting.) Under the settlement, Southern Hills will pay $70,000 in damages. The consent decree also enjoins the hospital from refusing to accommodate employees' sincerely held religious beliefs or retaliating against any employee for requesting a religious accommodation. Finally the decree imposes certain record-keeping, posting and reporting requirements in connection with religious accommodations.

Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions

U.S. Supreme Court Associate Justice David Souter sent a letter to President Obama today informing him that he plans to retire at the end of the Court term this year. President Obama delivered a statement (full text) in the White House briefing room praising Souter's service on the court. The Washington Post reports on developments.

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).

Concurrences:

• 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).

Dissents:

• 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.]