Recent Prisoner Free Exercise Cases

In Smith v. Ozmint, (4th Cir., July 31, 2009), the U.S. 4th Circuit Court of Appeals held that the South Carolina Department of Corrections had not justified under RLUIPA its policy of forcibly shaving the heads of maximum security inmates who wear long hair as a matter of religious belief. At the summary judgment stage, defendants had not shown that the policy furthers a compelling governmental interest in space utilization, hygiene, and security by the least restrictive means.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 63515 (ED AR, June 26, 2009), an Arkansas federal magistrate judge recommended that an inmate be permitted to proceed against several state corrections officials. Plaintiff claims that defendants' enforcement of a Department of Corrections policy prohibiting the use of tobacco violates his free exercise rights.

In Perkins v. Booker, 2009 U.S. Dist. LEXIS 64092 (WD MI, May 29, 2009), a Michigan federal magistrate judge recommended rejecting a summary judgment motion filed by two defendants in a prisoner's claim against them charging infringement of his Free Exercise rights and his rights under RLUIPA. At issue was whether plaintiff was properly removed from the prison's kosher food program.

In Brown v. Unfried, 2009 U.S. Dist. LEXIS 64520 (SD IL, July 27, 2009), an Illinois federal district court refused to strike plaintiff's free exercise claim finding that allegations the Madison County Jail refused to accommodate plaintiff's observance of Ramadan are separate from a retaliation claim filed by plaintiff.

In Forde v. Zickefoose, 2009 U.S. Dist. LEXIS 65616 (D CT, April 2, 2009), a Connecticut federal district court refused defendants' motions for summary judgment and permitted a woman federal prisoner who had converted to Islam to move ahead with her claims under RLUIPA and the First amendment. Plaintiff objected to prison policies that subject her to non-emergency pat-down searches by male guards, compel her to use an identification photo that shows her without her hijab, and which fail to provide a qualified imam for weekly jum'ah prayer services.

Religion News Service yesterday reported more broadly on the issues involved in prisoner access to religious materials.

Developments In Two Faith Healing Trials

There have been developments in two separate cases in which parents who relied on faith healing instead of seeking medical assistance were charged in the deaths of their children. In Wausau, Wisconsin, Dale Neumann was convicted Saturday of second degree reckless homicide in the 2003 death of his daughter. AP reports on the conviction in the death of eleven-year old Madeline Neumann who was suffering from undiagnosed diabetes. She died in a coma on the floor of the family's rural home, surrounded by people praying for her. The girl's mother was already convicted in a separate trial. Sentencing will be Oct. 6. The couple faces up to 25 years in prison. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Meanwhile, in Oregon City, Oregon Friday, Craig Worthington, who was acquitted last month of all charges except second degree criminal mistreatment in the death of his 15-month old daughter (see prior posting), was sentenced to two months in jail and 5 years probation. He was also ordered to provide medical care for his other children. AP reported on the sentencing. Friday's Salt Lake Tribune also discusses the case.

New IRS Form 990 Pushes Non-Profits To Comply With State Rules

Beginning this year, a newly designed IRS annual return on Form 990 must be filed by non-profits. While churches and various church-affiliated organizations are exempt from filing the form, other religious organizations must do so. An article yesterday in On Philanthropy , as well as an earlier article in Nonprofit Business Advisor, point out that among the new questions on Form 990 is Section C, Line 17 asking for a list of all states in which a copy of the federal Form 990 is required to be filed. This effectively requires the non-profit to list all states where its compliance with state charity registration laws is necessary. Schedule G , Question 3, asks where the organization is registered or licensed to solicit funds. The articles say that in the past many charities have ignored state requirements, but the new federal Form 990 questions are likely to change that. Organizations will need to determine whether their activity-- particularly their online activity-- amounts to a solicitation in various states. They will also need to look closely at the widely differing exemptions from state to state.

5th Circuit Says Ban On Santeria Sacrifices Violates Texas RFRA

In Merced v. Kasson (consolidated with Merced v. City of Euless) , (5th Cir., July 31, 2009), the U.S. 5th Circuit Court of Appeals held that a city's prohibition of animal sacrifices essential to Santeria religious practice violates the Texas Religious Freedom Restoration Act (TRFRA). Jose Merced, a Santeria priest, had been ritually sacrificing sheep, goats and turtles in a room attached to his garage approximately once a year for 16 years without incident when the city of Euless, Texas informed him that he could no longer do so under its ordinances. Merced sued seeking an injunction to prevent enforcement of the ordinances against him.

Reversing the trial court, the 5th Circuit concluded that the ordinances substantially burden Merced's free exercise of religion. It also concluded that (while a close case) the city failed to show that it had a compelling interst in barring Merced's activities, and that the ordinances completely banning Merced's slaughter of four-legged animals are not the least restrictive means of carrying out the city's interests. The district court had found no burden, saying Merced had not proven that orishas required sacrifices to be located at his home. (See prior posting.) The 5th Circuit said, among other things, that "predicating a substantial burden on the results of a religious ceremony (divining the will of the orishas) impermissibly allows judges to evaluate the intricacies of a religious practice." By relying on TRFRA, the court avoided having to deal with the constitutional free exercise claim that Merced had also raised. Yesterday's Fresno Bee, reporting on the decision, says that the city of Euless plans to seek a rehearing.

UPDATE: A press release on the case from Becket Fund links to briefs in the case and to a recording of the oral arguments.

Authorities Investigating Muslim Violence Against Christians In Pakistani City

In Pakistan's province of Punjab, in the city of Gojra, violence broke out Saturday between Muslim extremists (members of the banned Sipah-e-Sahaba group) and Christians. AP reports that hundreds of Muslims began torching Christian homes after a false report that a Quran had been defaced. At least six Christians (including a child) were killed and ten were wounded. Subsequently shots were fired on a peaceful Muslim procession passing a Christian neighborhood. Paramilitary forces were sent to assist police. According to Geo News, Punjab’s Chief Minister, Shahbaz Sharif, promising harsh punishment of those who took the law into their own hands, has ordered a judicial inquiry into the incident.

UPDATE: The New York Times on Sunday posted a more personalized account of the situation in an article titled Hate Engulfs Christians in Pakistan.

Vietnam Orders Buddhist Monks To Leave Monastery

The New York Times today reports on the standoff between Vietnamese authorities and Buddhist monks at Bat Nha Monastery. They were ordered last October by the chairman of Vietnam’s National Committee on Religious Affairs to leave the monastery. The monks, who are followers of Zen master Thich Nhat Hanh, have been training other monks there since 2005 after Hahn—who developed the philosophy called Engaged Buddhism-- was welcomed back from 39 years of exile in France.

The monastery’s problems with authorities began after Hanh made statements in support of the Dalai Lama and urged broader religious freedom in Vietnam. In ordering Hanh’s followers to leave, the government claimed that Plum Village, Hanh’s monastery in southern France, had published false information about Vietnam on its website. On June 27, power was cut to the Monastery compound and two days later a mob threw rocks and animal excrement at an official Buddhist delegation that came to investigate. Government authorities say the problems are caused by disputes between Hanh’s followers and Abbot Duc Nghi, the original owner of the property at Bat Nha. Hanh’s followers have invested over $1 million in expanding the monastery compound.

10th Circuit Denies En Banc Review In 10 Commandments Case By 6-6 Vote

By a vote of 6 - 6 yesterday, the judges on the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a Ten Commandments case. The 3-judge panel had invoked the Establishment Clause to invalidate a display of the Ten Commandments on the courthouse lawn in Stigler, Oklahoma. (See prior posting.) In Green v. Haskell County Board of Commissioners, (10th Cir. en banc, July 30, 2009), two dissenting opinions to the denial of en banc review were filed. Judge Kelly's dissent, joined by Judges Tacha and Tymkovich said:

The Court’s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country’s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.... The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry....

A second dissent written by Judge Gorsuch and joined by Judges Tacha, Kelly and Tymkovich criticized the panel's application of the Lemon test and went on to contend:

[By] making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.

As is typical, none of the judges voting to deny review wrote an opinion. [Thanks to Peter Irons for the lead.]

IRS Is Investigating Virginia Church

According to the Washington Post, the IRS is investigating Sterling, Virginia's Calvary Temple. (Washington Post background article on Calvary Temple.) The investigation is apparently focused on Pastor Star R. Scott who controls the church's $8.5 million in real estate and hundreds of thousands of dollars of autos used in a "racing ministry." Scott told his congregation that 8 IRS agents interviewed him for five hours earlier this month. They asked about church credit cards that he uses for vacation homes, travel and entertainment. They also sought information about the church's K-12 school, apparently concerned whether supposed donations from parents should really be treated as tuition for tax purposes. The school charges no formal tuition.

Nigerian Islamist Leader Killed In Police Custody

Nigeria's Vanguard yesterday reported that Mohammed Yusuf, head of the fundamentalist Islamic group Boko Haram, has been killed after being taken into police custody. Recent violence in northern Nigeria by Boko Haram rebels has killed some 300. (See prior posting.) After the announcement of Yusuf's death yesterday, Nigerian President Umaru Yar'Adua told northern governors to mobilize traditional and religious leaders to oppose the Boko Haram. In particular, the President wanted governors to encourage religious leaders to preach on the dangers of extremist groups at Friday Juma'at services in all Mosques. Meanwhile, Reuters has published a Q&A on the Boko Haram (which means "Western education is sinful") and on the recent violence in Nigeria.

Settlement Reached In Church's Use of Pensacola FL Park

Alliance Defense Fund yesterday announced that a settlement has been reached in the lawsuit brought against the city of Pensacola, Florida by St. Faustina Old Catholic Church challenging restrictions on use of a downtown park for a weekly picnic by a Bible study group that shared its food with the hungry. (See prior posting.) Apparently under the settlement, the church will be allowed to hold picnics in the park during summer months, but concern about preserving park grass has led to a ban on use by large groups during the winter.

Some Polish Catholics Protest Upcoming Madonna Concert

August 15 is the Catholic feast of the Assumption of the Holy Virgin Mary. Freemuse and Indeks 73 both report this week that in Poland, conservative Catholics are protesting the Madonna concert scheduled for that day in Warsaw. Appeals are being made to the President of the city Warsaw, the mayor of Bemowo (the Warsaw district where the concert is going to take place) and the Minister of the Interior and Administration to convince them to cancel or postpone the concert. Unum Principium Association spokesperson Krzysztof Zagozda says the scheduled concert is "an Anti-Christian provocation." In addition to the timing, an online petition says that some of Madonna's shows feature her climbing a cross, contain obscene gestures and promote homosexuality. Janusz Kochanowski, spokesperson for Citizens' Rights, says the concert will hurt the "religious feelings" of Catholics in violation of the Art. 196 of Poland's Criminal Code (link to Polish version). Others however say that cancelling the concert would infringe the dissemination of artistic creation in violation of Art. 73 of the Polish Constitution.

Judge Allows Temporary Occupancy of Synagogue After Code Controversy

The Middletown (NY) Times Herald-Record yesterday reported on a building code controversy between the town of Bethel, New York and the local Satmar Bungalow Colony of Hasidic Jews. Apparently town building inspector Tim Dexter issued a building permit for a synagogue and community center building without plans havng gone through the town Planning Board. Brooklyn-based United Talmudical Academy rapidly constructed the building and began using its upper floor prayer space before obtaining a certificate of occupancy. The basement is not yet finished. Dexter inspected the building as it was being built and was ready to issue a temporary certificate of occupancy when town Supervisor Dan Sturm had the city issue a stop work order and an order to vacate the building. The synagogue sued.

After County Court Judge Frank LaBuda personally toured the building, he granted a six-week temporary occupancy certificate, and ordered UTA to allow engineers into the building. According to the River Reporter, the judge had some safety concerns, such as door opening inward instead of outward, but he allowed the building to be used temporarily for religious purposes. No meals or other activities may take place there. Meanwhile the Town board has ordered an investigation of the town's Building Department. Lawyers and engineers will look into 6 to 10 projects.

UPDATE: Judge LaBuda has filed a written opinion granting the temporary occupancy certificate. It is United Talmudical Academy Torah V'Yirah, Inc. v Town of Bethel, (Sup. Ct. Sullivan Co., Aug. 24, 2009).

Navy Affiliated Website Ends Ban On Religious Discussion Groups

Last month, Liberty Counsel complained to the Navy about the discussion board Guidelines on its Navy for Moms website. They banned religious discussions and the creation of religious discussion groups on the site. (See prior posting.) On Wednesday, Liberty Counsel announced that the Guidelines have been modified. In a letter (full text) to Liberty Counsel, the Navy says it is removing restrictions on religious and political debate. The new Community Guidelines do provide: "Slurs, stereotyping, hate speech, and other forms of discrimination based on any race, color, religion, national origin, disability, or sexual orientation are not permitted. This is not a venue for you to harass or personally attack others."

Federal Claims Court Agrees That Religious Foundation Is Not A "Church"

In Foundation of Human Understanding v. United States, (Fed. Cl., July 21, 2009), the U.S. Court of Federal Claims agreed with the Internal Revenue Service that the Foundation of Human Understanding, while qualifying as a non-profit organization, had lost its status as a "church" under IRC § 170(b)(1)(A)(i). This determination meant that the organization became subject to the rules for private foundations in IRC § 509. The IRS has developed 14 criteria to use in determining church status. While the Foundation met some of these, the court held that it did not meet the threshold requirement that it "serve an associational role in accomplishing its religious purpose." It concluded: "The extent to which Foundation brings people together to worship is incidental to its main function which consists of a dissemination of its religious message through radio and internet broadcasts, coupled with written publications."

Atheist Delivers Protest Invocation At County Commission Meeting

On Tuesday in Cobb County, Georgia, Edward Buckner, president of American Atheists and candidate for state Attorney General, used the invocation time at the county Board of Commissioners meeting to stage a protest against invocations. Today's Atlanta Journal Constitution reports that Bruckner requested that he be allowed to deliver the invocation, and that Commission chairman Samuel Olens granted the request. At Tuesday's meeting Olens told those in attendance that federal law requires him to allow anyone who signs up to deliver the invocation. In his remarks, atheist Buckner announced that he was speaking for "the 700,000 people who live in this county — especially the majority (yes, over half) of those 700,000 who are not members of any church, mosque, temple, or other religious organization,." He went on: "I speak as well for those political leaders who despair that success in politics cannot be achieved without hypocritical piety from politicians and who would prefer to run for office and to govern based on competence and political philosophy rather than on beliefs, real or pretended, in any supernatural beings." Chairman Olens said he found Bruckner's comments "repugnant and insulting."

AU Wants Senate Committee To Question Army Head Nominee On Church-State Issues

Today, the Senate Armed Services Committee holds a hearing to consider the nomination of John M. McHugh as Secretary of the Army. McHugh is currently a Republican member of the House of Representatives from New York, and was previously the ranking member of the House Armed Services Committee. He was nominated in June by the President. In a press release earlier this week, Americans United questioned McHugh's views on church-state matters. In a letter to the Committee (full text), AU urged that the hearings "ascertain the nominee's views on the pervasive problem or religious coercion and proselytizing in the U.S. military." The letter says that McHugh's voting record in the House on these issues is troubling.

UPDATE: Blog from the Capital reports that at his confirmation hearing, the only question directed to McHugh about religion in the military was one by Senator Jack Reed who asked about religious freedom for soldiers. McHugh responded by saying that military chaplains "must be sensitive" to the diversity of troops and must avoid proselytization except in church services conducted on personal time.

Jordan's Parliament Split On Religious Groups Under Societies Act

For a year, Jordan's Parliament has been debating amendments to the Societies Act which governs the operation of civil society organizations. (Background). Today's Jordan Times reports that the latest controversy surrounds a government proposal, approved by the Senate but rejected by the House of Representatives, that would allow all non-Muslim organizations to operate in the country under the law. Deputies who opposed the provision say it would open the way for the licensing of Jewish organizations. They instead approved a provision that would only allow Christian non-profits, in addition to Muslim ones. Minister of Justice Ayman Odeh says that limiting the law to Christian groups is inconsistent with language in the Constitution. It also creates problems for some churches already working in Jordan that are not considered "Christian" by the country's Council of Churches. Next week, the two houses of Parliament will meet in a joint session to consider the matter, as required by Jordan's constitution when there has been a disagreement between chambers.

Faith-Based Alternatives To Traditional Insurance Pose Issue Under Reform Legislation

Amidst the many complexities of health care reform is the little-noticed problem of faith-based health care sharing ministries. BeliefNet yesterday reported on the concern of these Christian groups over whether they will be considered appropriate insurance under the insurance mandate that is likely to be in new legislation. These religious groups pass on monthly fees from members to other participants who have incurred medical expenses. Some 100,000 Christians have chosen this as an alternative to traditional health insurance. They see it as responding to the mandate to help fellow-believers. Some insurance officials, however, are concerned that there is no guarantee these cost-sharing ministries will in fact cover participants' expenses.

IRS Drops Church Investigation Until Procedural Problems Are Resolved

The Internal Revenue Service earlier this month sent a letter (full text) to the Minnesota-based Warroad Community Church indicating that it is closing an ongoing investigation of the church "because of a pending issue regarding the procedure used to initiate the inquiry." Presumably the procedural problem stems from a decision by a Minnesota federal district court in January holding that IRS rules have improperly delegated authority to open a church tax inquiries. (See prior posting.) According to an Alliance Defense Fund release, Warroad Pastor Gus Booth was one of those participating in ADF's Pulpit Initiative to openly challenge the constitutionality of the 1954 Johnson Amendment which precludes tax exempt non-profit organizations from endorsing or opposing political candidates. Booth had sent copies of two of his sermons to the IRS. AP reports that Pastor Booth plans to continue preaching about politics. The IRS letter says that it may open a new inquiry once procedural issues are resolved.

Tarek ibn Ziyad Academy Counterclaims Against ACLU

In Minneapolis (MN) yesterday, the Tarek ibn Ziyad Academy, a charter school being sued for promoting Islam, filed a counterclaim against the ACLU. Last week, a federal district court upheld the ACLU's standing to bring an Establishment Clause claim against the school. (See prior posting.) Now, according to the Minneapolis Star-Tribune and the St. Paul Pioneer Press, TiZA claims that the ACLU has injured its reputation by calling it "theocratic," and has hurt its ability to hire qualified teachers. Ten applicants withdrew from consideration and the school has unfilled positions. The pleadings also claim that the ACLU's lawsuit damaged the school's learning environment and caused several students to withdraw. TiZA is seeking damages totaling $100,000.