Missouri Creates New Faith-Based Partnership For Disaster Relief

Missouri Governor Jay Nixon last month signed Executive Order 09-25 setting up the Governor’s Faith-Based and Community Service Partnership for Disaster Recovery. Today's St. Louis Post-Dispatch carries a long report on Missouri's efforts to create a model of cooperation between state agencies and religious organizations to create an effective disaster response and recovery system. The state's new Partnership is made up of 16 state agencies, two federal agencies and 16 religious and charitable organizations.

Bald Eagle Case Transferred To Tribal Court

There has been a new development in the long-running federal prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance. The case has already been up to the 10th Circuit once on an unsuccessful challenge to the Bald and Golden Eagle Protection Act. (See prior posting.) A Wyoming federal district court judge has now agreed to let the matter be handled by a tribal court. AP reports today that the Wyoming federal district court that had scheduled a trial to begin Monday in the case instead has issued an order vacating the trial and specifying that the matter will be transferred to a tribal court. The judge however left open the possibility that he could still order a trial next month if the tribal court does not act.

Brooklyn Judge Criticizes Orthodox Jewish Community's Views On Child Abusers

In Brooklyn, New York on Tuesday, state trial court judge Guston Reichbach delivered a harsh rebuke to the borough's Orthodox Jewish community while sentencing Yona Weinberg, a 31-year old social worker and bar mitzvah tutor, for sexually molesting two boys. According to today's New York Jewish Week, the judge was distressed that in the 90 letters in support of Weinberg received prior to sentencing, no one expressed concern or sympathy for the victims. Judge Reichbach complained about "a communal attitude that seems to impose greater opprobrium on the victims than the perpetrator," and said that Jewish religious courts are inappropriate and incapable of dealing with criminal matters. The comments come just as the Orthodox Jewish community is beginning to face the problem of child sexual abuse.

Recent Prisoner Free Exercise Cases

In Jova v. Smith, (2nd Cir., Sept. 28, 2009), the U.S. 2nd Circuit Court of Appeals held that, under RLUIPA, prison authorities had demonstrated a compelling interest in a policy that permits inmates who lack a prison-affiliated chaplain to seek an outside sponsor, but where one is not available to allow an inmate to serve as facilitator of congregational worship only if the religion is known outside the institution. One of the two plaintiffs was the founder of Tulukeesh. The court also upheld against a RLUIPA challenge refusals to allow plaintiff to spar and receive martial arts training. However the court remanded for further consideration whether there was a less restrictive way of accommodating plaintiff’s complex religious dietary needs, such an entirely vegetarian diet. New York Law Journal reported on the decision last week. [Thanks to Steven H. Sholk for this lead.] In a related summary order issued on the same day, the court rejected plaintiff’s free exercise challenge and various other related claims. (See prior related posting.)

In Watson v. Wakefield, 2009 U.S. Dist. LEXIS 88395 (SD TX, Sept. 25, 2009), a Texas federal district court allowed two Muslim inmates to move ahead with his claim under RLUIPA that his rights were violated when he was barred for six months from attending Muslim services because during a scheduled prayer service he called for the resignation of his unit’s inmate Islamic coordinator. The court concluded that defendants had not shown for purposes of summary judgment that exclusion was the least restrictive means of promoting prison safety and security after a single incident of disruption. The court did however dismiss plaintiff’s First Amendment free exercise claim.

Vega v. Lantz, 2009 U.S. Dist. LEXIS 88550 (D CT, Sept. 25, 2009), involved free exercise and equal protection complaints, as well as a claim under RLUIPA, alleging a lengthy series of restrictions on a Muslim inmate’s right to practice his religion. A Connecticut federal magistrate judge rejected plaintiff’s complaint that he was denied halal meat and 5-times per day congregate prayer, as well as complaints about several other alleged infringements. The court however permitted plaintiff to move ahead with claims that Friday Jumah services are frequently cancelled, that the Qu’ran was mishandled, that his request to be circumcised for religious reasons was refused, that he was not allowed to purchase a toothstick, and that prayer oils sold in the commissary did not comply with Islamic requirements. The court also held that damages are not available under RLUIPA in claims against officials in their individual capacities.

In Decker v. Hogan, 2009 U.S. Dist. LEXIS 89048 (ND NY, Sept. 28, 2009), a New York federal district court permitted an atheist civil detainee who was placed in a sexual offender treatment program to move ahead with his First Amendment claim that portions of the program are based on Zen Buddhism and Christianity. The court, however refused to issue a preliminary injunction because plaintiff had not shown a substantial likelihood of success on the merits.

In Lewis v. Foster, 2009 U.S. Dist. LEXIS 88652 (D DE, Sept. 25, 2009), a Delaware federal district court rejected a claim by a former inmate that while he was incarcerated he was denied access to a razor to shave his head. He claimed that his Hebrew Israelite religion required him to shave his head for an indeterminate time after he came in contact with a dead body, namely his stillborn child.

In Lee v. Gurney, 2009 U.S. Dist. LEXIS 88883 (ED VA, Sept. 25, 2009), a Virginia federal district court rejected a Sunni Muslim inmate’s First Amendment and Equal Protection contentions, but permitted him to move ahead with his claim under RLUIPA complaining about a ban on group prayer in the prison recreation yard. The court concluded that authorities had not shown for summary judgment purposes that they used the least restrictive means to further a compelling interest in imposing the ban.

In Ramsey v. Goord, 2009 U.S. Dist. LEXIS 88859 (WD NY, Aug. 19, 2009), a New York federal magistrate judge refused to grant defendants’ motion for summary judgment on a series of related claims by an inmate who declared himself to be Jewish who was temporarily removed from the prison’s kosher food program without any chance to challenge the claimed reasons for his removal. He was charged with giving some of his kosher food to another inmate when it appears that this was done by an inmate porter of the food trays rather than plaintiff. Plaintiff was also allowed to move ahead with his claim that his removal from the program was in retaliation for his providing a statement helping another Jewish inmate in his charges against a prison staff member.

In Ellis v. United States, 2009 U.S. Dist. LEXIS 89392 (WD PA, Sept. 28, 2009), a Pennsylvania federal district court dismissed a Muslim federal inmate’s negligence claim stemming from the omission of his name from the call-out sheet for the 2006 Eid celebration as well as his free exercise claim based on the denial of Halal meat for the 2006 Eid celebration. The court also adopted a number of recommendations made in the case by a federal magistrate judge (2009 U.S. Dist. LEXIS 90035 (June 2, 2009)) including permitting plaintiff to move ahead with a RFRA claim that his name was omitted for 3 months from the call-out list for Jumu’ah services, an equal protection claim regarding denial of Halal meat for the Eid service, and a retaliation claim. The court agreed to deny a RFRA claim relating to plaintiff’s ability to purchase prayer oil and omission of Halal meat from the Eid service.

In Katz v. McGrew, 2009 U.S. Dist. LEXIS 89599 (D HI, Sept. 23, 2009), a Hawaii federal district court dismissed without prejudice a claim by a Jewish prisoner seeking a transfer from Hawaii to a mainland federal prison where he could eat and pray in a Sukkah during the Jewish holiday of Sukkot. The court said that case should have been brought as a civil rights claim, and not as a habeas corpus claim.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 89831 (ED AK, Sept. 17, 2009), and Arkansas federal magistrate judge recommended dismissing as frivolous a claim by an inmate who said he is a Disciple of Christ that he requires a one-person cell so he can be separate from those who do not obey the doctrines of Jesus.

In Boles v. Neet, 2009 U.S. Dist. LEXIS 91474 (D CO, Sept. 29, 2009), a Colorado federal district court accepted a federal magistrate’s recommendations (2009 U.S. Dist. LEXIS 90019 (March 13, 2009) and dismissed a complaint by an Orthodox Jewish prisoner that he was not permitted to wear his yarmulke and talit katan while being transported off prison premises for cataract surgery. (The case was on remand from the 10th Circuit. See prior posting.)

Court Says "Ministeral Exception" Does Not Apply To Suits Under Trafficking Victims Protection Act

In an important decision of first impression, a New York federal magistrate judge has concluded that the "ministerial exception" does not apply to suits under the federal Trafficking Victims Protection Act of 2000. Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044 (ED NY, Aug. 21, 2009), involves a Hindu priest who came to the United States under a religious workers visa to work for the Vishva Seva Ashram of New York. Plaintiff claims that he was tricked into leaving India and once here was subjected him to exploitative work conditions through psychological and emotional abuse-- allegations denied by defendants. Concluding that the First Amendment constraints on civil court jurisdiction over religious disputes should not apply here, the court said:

the standards that govern what constitutes trafficking and forced labor do not depend on the interpretation of religious doctrine; rather they are secular standards that guarantee that employers cannot deprive employees of fundamental human rights. Thus, unlike analyzing suits brought under federal and state employment laws, exploring the ills that the TVPA is meant to combat -- namely, trafficking and forced labor -- does not require courts to unduly interfere with the internal affairs of religious organizations or get involved in the selection or retention of ministers. Furthermore, a suit under the TVPA is not analogous to a suit under federal and state employment laws, because it is not brought in response to an adverse employment action...

Alabama High Court Says Morality Can Still Justify Commercial Regulation

The New York Times this morning editorializes on a decision handed down three weeks ago by the Alabama Supreme Court, 1568 Montgomery Highway, Inc. v. City of Hoover, (AL Sup. Ct., Sept. 11, 2009). In a 7-2 decision, the court upheld against constitutional attack Alabama's ban on the commercial distribution of sex toys, defined as "any device designed or marketed as useful primarily for the stimulation of human genital organs." The court concluded that "public morality" can serve as a legitimate rational basis for regulating non-private commercial activity. Siding with a view taken by the 11th Circuit, the court concluded that the U.S. Supreme Court's decision in Lawrence v. Texas only precludes using public morality as a legitimate governmental interest when a law regulates conduct that is both private and non-commercial. Two dissenters sided with the 5th Circuit, arguing that the U.S. Supreme Court's decision in Lawrence precludes this ban because it prevents individuals from purchasing sex toys for private intimate use.

Court Rejects Protesters' Attempts To Use Chalk Art In Anti-Roe Demonstration

In Mahoney v.District of Columbia, (D DC, Sept. 30, 2009), the D.C. federal district court rejected claims by several Christian anti-abortion protesters that their rights were infringed when they were denied permission to use chalk art as part of an anti-Roe v. Wade demonstration on the pedestrian plaza in front of the White House. The court concluded that the D.C. Code provision prohibiting the defacement of public property is an appropriate content-neutral time, place and manner regulation of speech. As a neutral law of general applicability, it survives plaintiffs' free exercise challenge. It does not impose a substantial burden on their religious exercise under the Religious Freedom Restoration Act because, while plaintiffs have a religious belief that they need to challenge abortion, they "do not allege that it is their sincerely held religious belief that they should express those views to the president through the specific medium of chalk or in the specific location of the 1600 Block promenade." The court also rejected plaintiffs' equal protection claim and their claim that police violated D.C.'s First Amendment Rights and Police Standards Act. (See prior related posting.)

European Court Faults Russia For Refusing To Register 2 Scientolgy Churches

In Kimlya v. Russia, (ECHR, Oct. 1, 2009), the European Court of Human Rights held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it refused to register the Church of Scientology in two Russian cities as a religious organizations under the country's Religions Act. Without registration, churches are essentially unable to function. Authorities refused registration because the churches failed to meet the statutory requirement that either they have existed for at least 15 years in a given Russian territory or are affiliated with a centralized religious organization.

The court noted that member states differed as to whether Scientology should be categorized as a religion. Therefore the court said it would defer to authorities of the country in question as to that issue. Russian officials held that the two churches were religious organizations. It went on to conclude that Russia's "15-year rule" violated the ECHR because it impacts only newly-formed churches that are not part of a strictly hierarchical church structure, and there is no justification for this difference in treatment. A ECHR press release summarized the decision.

Israel Prison Authority Says Prisoners Can Sleep In Sukkah

The Jewish holiday of Sukkot begins tonight. One of its customs is the construction of a Sukkah, a small enclosed area, partially open to the sky, in which observant Jews during the holiday eat their meals and sometimes also sleep at night. Yesterday's Yeshiva World News reports that in Israel, the Israel Prison Authority has for the first time given permission for observant prisoners to sleep in a sukkah in prison. In previous years, they had only been allowed to eat their meals there. The ruling, handed down at the request of the human rights group B'tzedek, applies to the wing housing religiously observant prisoner at the Massiyahu Prison. Among the prisoners housed there is Shlomo Benizri, a former member of the Knesset from the religious Shas Party, who is serving a four year sentence for accepting bribes.

Washington's Red Mass Is Sunday As Supreme Court Opens Its Term

This Sunday, as the Supreme Court's term is about to open, Washington's 56th annual Red Mass will be held at the Cathedral of St. Matthew the Apostle. Several justices traditionally attend, along with congressional leaders, diplomats, cabinet secretaries, and sometimes the President. CNN reports that the Red Mass dates back centuries and brings together government leaders involved in the law. Critics, however, say this improperly gives the Catholic Church a special way to lecture the justices.

Barry Lynn, director of Americans United for Separation of Church and State, says that Washington's Red Mass was begun after several Supreme Court decisions were handed down that troubled the Church. The Mass is sponsored by the John Carroll Society, a lay Catholic group of legal professionals. Jane Roberts, wife of the chief justice, is an officer of the Society. Currently six of the Justices on the Court are Catholic. Justices of other faiths are invited to the Mass as well, and some, like Justice Breyer (who is Jewish), attend. However Justice Ginsburg, has stopped going because of the subject matter of the sermons. Church officials deny using the Mass to lobby the Court. Last year, 5 Justices attended. (See prior posting.)

New Hampshire Federal Court Rejects Challenge To Pledge of Allegiance

In Freedom from Religion Foundation v. Hanover School District, (D NH, Sept. 30, 2009), a New Hampshire federal district court dismissed a constitutional challenge to the recital of the Pledge of Allegiance in school classrooms. Atheist and agnostic parents and students raised Establishment Clause, free exercise, equal protection and due process claims. Perhaps the most interesting part of the court's opinion was its lengthy Establishment Clause analysis. In concluding that the New Hampshire statute mandating recitation of the pledge in classrooms, but making student participation voluntary, passed the Lemon test, the court said in part:

the Pledge of Allegiance is not a religious prayer, nor is it a "nonsectarian prayer" .... and its recitation in schools does not constitute a "religious exercise." The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way.... Rather, the Pledge, in content and function, is a civic patriotic statement.... Peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause, and as a civic or patriotic exercise, the statute is clear in making participation completely voluntary....

The words "under God" undeniably come from the vocabulary of religion, or, at the least, reflect a theistic orientation, but no more so than the benign deism reflected in the national trust in God declared on our currency, or in ceremonial intercessions to "save this Honorable Court" .... It may well be that some, perhaps many, people required to employ U.S. currency, or socially pressured to stand during civic ceremonies, feel offended by what seems to them an imposition of theistic doctrine. But the Constitution prohibits the government from establishing a religion, or coercing one to support or participate in religion, a religious exercise, or prayer. It does not mandate that government refrain from all civic, cultural, and historic references to a God.....

When Congress added the words "under God," to the Pledge in 1954, its actual intent probably had far more to do with politics than religion — more to do with currying favor with the electorate than with an Almighty. (God, if God exists, is probably not so easily fooled.) In the intervening half century since the words were added, rote repetition has, as Justice Brennan observed, removed any significant religious content embodied in the words, if there ever was significant religious (as opposed to political) content embodied in those words. Today, the words remain religious words, but plainly fall comfortably within the category of historic artifacts — reflecting a benign or ceremonial civic deism that presents no threat to the fundamental values protected by the Establishment Clause.

Lodi City Council Changes Policy, But Keeps Prayer

After months of contentious debate, late Wednesday night the Lodi, California City Council voted unanimously to change its policy on invocations, but not to do away with prayer. According to yesterday's Lodi News-Sentinel, under the new policy the invocation will be delivered before the Council meeting is formally called to order. Leaders of all faiths, including ones whose places of worship are outside of the city, will be invited to deliver an uncensored invocation. Persons who are not religious can give a "Call to Civic Responsibility" instead of a prayer. Some 500 people attended the special Council meeting on Wednesday and the mayor had received 1,451 e-mails on the topic. (See prior related posting.)

Parties Settle In Lesbian's Suit Against California Clinic

Last year in North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, (CA Sup. Ct., Aug. 18, 2008), the California Supreme Court held unanimously that a medical clinic's physicians are prohibited by the Unruh Civil Rights Act from discriminating against patients on the basis of sexual orientation. The holding came in a lawsuit by an unmarried lesbian patient. Two Christian doctors at the clinic refused on religious grounds to give her artificial insemination. As the case headed for trial on remand, North County (CA) Times yesterday reported that the parties have now settled the lawsuit for an undisclosed sum of money in a settlement described as mutually agreeable.

NY Jewish Schools Get No Child Left Behind Tutors For First Time

The Jewish Press reported yesterday that for the first time, some 14,000 young students from 50 yeshivas in New York City will be able to access tutoring services paid for by the No Child Left Behind Act's Title I program. The tutors offer students help with reading, writing and arithmetic. Eventually up to 50,000 yeshiva students could participate. Until two weeks ago, union contracts kept New York City teachers from accommodating the yeshivas' longer school day. However new arrangements will now permit yeshivas to use third party vendors for tutoring under the program. [Thanks to Vos Iz Neis for the lead.]

Many Pakistani Mosques and Madressahs Face Shut Off Of Electricity

In Pakistan, the Karachi Electric Supply Company (KESC) notified the Ministry of Religious Affairs earlier this month that over 1,600 mosques and madressahs have not paid their electric bills. They owe the equivalent of $1.49 million (US). According to Pakistan's The News today, KESC will be sending a final one-week notice to delinquent customers and then will be shutting off their power. Numerous notices have previously been sent out, but have been ignored. Most of the religious institutions have their own revenue generating sources, such as shops and markets, that should generate funds to cover the bills. The Ministry of Religious Affairs told KESC that the Ministry is not responsible for the religious institutions.

Texas State Fair Is Not State Actor In Barring Religious Literature Distribution

In Rundus v. City of Dallas, (ND TX, Sept. 16, 2009), a Texas federal district court rejected a claim brought by a Christian evangelist seeking damages for the refusal by the State Fair of Texas to allow him to pass out religious literature on sidewalks inside the fairgrounds. State Fair rules required plaintiff to pay a fee to rent a booth if he wished to hand out literature inside the fairgrounds. His lawsuit claimed the Fair's literature distribution policy violated his 1st Amendment right to express his religious beliefs. The State Fair of Texas is a private non-profit corporation that holds the fair each year at the city-owned Fairgrounds. The court held that the State Fair did not become a state actor by reason of its relationship with the city of Dallas. According to the court, there was "no evidence that the City was involved, much less 'pervasively entwined,' with any aspect of the Literature Distribution Restriction." Therefore plaintiff had failed to show the "state action" necessary for a recovery. And while the city was a state actor, its conduct did not give rise to any liability. (See prior related posting.) The Dallas Observer News Blog reported on the case yesterday.

Israeli Court Says Chinese Pressured University On Falun Gong Exhibit

In Israel, the Tel Aviv District Court ruled yesterday that Tel Aviv University improperly closed down an exhibit of artwork by Falun Gong members last year because of economic and political pressure from the Chinese Embassy. According to Haaretz, the court concluded that the Dean of Students gave into pressure in order to protect campus funding by the Chinese Embassy of scholarships for students who study in China, a campus Confucius Center where students can study Chinese, and conferences on Buddhism and Chinese philosophy. The two-week exhibit opened on March 3, 2008, but was shut down after only four days. The court ordered the university to host the exhibit for another full week during the upcoming semester, and to pay the two plaintiffs-- student organizers of the exhibit-- NIS 45,000 ($12,000 US) in litigation costs.

Court Rejects Tony Alamo's Free Exercise Defense In Suit By Former Followers

A federal district court yesterday rejected a free exercise defense raised by evangelist Tony Alamo in a lawsuit against him by two of his former followers who alleged Alamo withheld food from them for prolonged times, ordered their severe and sometimes public beatings, and verbally abused them during the beatings. In Ondrisek v. Hoffman, (WD AR, Sept. 30, 2009), the court said:

Alamo states that the beatings alleged in the Complaint were merely spankings, which are required by the Bible. Thus, he argues that his alleged conduct in ordering these beatings is protected by the First Amendment’s free exercise clause.... The principle of religious liberty does not give one the liberty to physically attack others.... While an individual’s beliefs that he can beat and falsely imprison Plaintiffs and intentionally inflict emotional distress upon them is protected by the First Amendment, acting on these beliefs is reasonably prohibited by Arkansas law.

The Pine Bluff (AR) Commercial reported on the decision yesterday.

Christian Group Sues Challenging Maine's Interpretation of Its Charitable Licensing Law

In June, the Charitable Solicitations section of Maine's Office of Licensing & Registration imposed a civil penalty of $3000 on the Christian Action Network, finding that it had violated 9 MRS Sec. 5013 by using Governor John Baldacci's name in a letter soliciting contributions without the Governor's consent. (CAN Release.) The solicitation letter complained that some of Maine's public schools were promoting Islam by providing instruction on the Five Pillars of Islam and the Koran and that some schools provide a prayer room for Muslims. It urged recipients of the letter to contact the Governor to complain.

10 MRS Sec. 8003(5) allows the agency to impose a civil penalty of up to $1500 for each violation of law. Apparently the state, as a condition to granting a renewal of CAN's license as a charitable organization, also required it to admit both that the Governor did not give his consent and that CAN's "correspondence contained an inflammatory anti-Muslim message." Yesterday, Liberty Counsel announced that CAN had filed a federal lawsuit against the state of Maine challenging an interpretation of the state statute that prohibits any mention of the Governor in a charitable solicitation without consent. The suit also claims that CAN's free speech was infringed by "censoring" of its anti-Muslim message.

UPDATE: Here is the full text of the complaint in Christian Action Network v. State of Maine, (D ME, filed 9/28/2009). The Bangor Daily News has more coverage and a link to the text of CAN's mailing.

2nd Circuit: Ministerial Exception Bars Rabbi's Suit Against Her Former Temple

In Friedlander v. Port Jewish Center, (2d Cir., Sept. 30, 2009), the 2nd Circuit agreed that a New York federal district court lacked jurisdiction over a breach of contract claim by a rabbi against her former congregation. (See prior posting.) The Court of Appeals found that the "ministerial exception" doctrine applies. That doctrine bars civil courts from interfering with the autonomy of religious institutions over ecclesiastical affairs. The Court said:

review of Freidlander’s claims ... would require scrutiny of whether she should have ... read more extensively from the Torah at certain services, prepared students for their Bar or Bat Mitzvah more adequately, performed certain pastoral services ... or followed the Temple’s funeral service policies. A reviewing court would also be required to assess whether any failures rose to the level of "gross misconduct or willful neglect of duty".... [S]uch review would involve impermissible judicial inquiry into religious matters.

[Thanks to Y.Y. Landa for the lead.]