Recent Prisoner Free Exercise Cases

In Rust v. Nebraska Department of Correctional Services Religion Study Committee, 2009 U.S. Dist. LEXIS 105793 (D NE, Nov. 12, 2009), a Nebraska federal district court rejected RLUIP and free exercise challenges by inmates who were adherents to the Theodish Belief to authorities' failure to provide them with various food and devotional items and various other claimed restrictions on their religious practice. However the court held that scheduling combined worship time for Theodish Belief and Asatru practitioners did pose a substantial burden on plaintiffs' religious exercise. The court gave defendants additional time to supplement the record regarding the state's alleged compelling interest in this schedule.

In Howard v. Epps, 2009 U.S. Dist. LEXIS 105366 (SD MS, Oct. 30, 2009), a Mississippi federal magistrate judge permitted a Rastafarian inmate to amend his complaint to allege that the prison's grooming policy violates his First Amendment rights.

In O'Neal v. Brenes, 2009 U.S. Dist. LEXIS 104852 (CD CA, Nov. 10, 2009), a California federal magistrate judge rejected an inmate's free exercise claim. Plaintiff alleged that he participates in the prison's vegan religious diet program and does not receive enough food. The court dismissed the claim because plaintiff failed to allege that his veganism is rooted in religious belief.

In Griffith v. Bird, 2009 U.S. Dist. LEXIS 104469 (WD NC, Nov. 3, 2009), a North Carolina federal district court dismissed claims for both damages and an injunction by a Wiccan prisoner who claimed Wiccans were not allowed to have group religious services and that he was denied certain religious items. Corrections Department policy requires an approved volunteer to lead group religious services and vendors of religious items must go through an approval process.

In Haynes v. Sisto, 2009 U.S. Dist. LEXIS 104532 (ED CA, Oct. 21, 2009), a California federal district court rejected a claim that authorities prevented black inmates from participating in religious activities during lockdowns. Plaintiff did not allege that he was prevented from practicing his religion.

In Flett v. Vail, 2009 U.S. Dist. LEXIS 99765 (ED WA, Oct. 23, 2009), a Washington federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 104255, Aug. 24, 2009), and dismissed claims of a native American inmate that prison officials failed to mail out certain religious items that he had properly processed for mailing. The court allowed plaintiff to move ahead with a RLUIPA challenge to prison regulations that prohibited use of animal fur, claws or bones for religious ceremonies. Plaintiff wished to use an eaglebone whistle.

In Hoffman v. Hennessey, 2009 U.S. Dist. LEXIS 103406 (ND CA, Nov. 6, 2009), a California federal district court held that a Jewish prisoner had stated a cognizable claim under the First Amendment and RLUIPA that he was denied use of a yarmulke and tallit katan. He also was permitted to proceed with a retaliation claim against the Sheriff's Department.

Indian Tribe Sues Under Treaty To Get Prosecution of Self-Help Author

Last month, three people died after spending time in a sweat lodge as part of a "Spiritual Warrior" retreat conducted by self-help author and speaker James Arthur Ray. Each participant paid over $9600 to attend the retreat at the Angel Valley Retreat Center in Sedona, Arizona. (CNN). Now, according to a report this week from Sedona.biz, members of the Lakota Sioux Tribe, upset over non-Indians appropriating Native American ceremonies, has filed a federal lawsuit demanding prosecution of James Arthur Ray. The complaint (full text) in Oglala Lakota Delegation of the Black Hills Sioux Nation Treaty Council v. United States, (D AZ, filed 11/2/2009), cites to provisions in the 1869 Treaty of Ft. Laramie that provides:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

The complaint explains that a wrong was committed on the Lakota's property because the Oinikaga sweat lodge ceremony is part of the Lakota's oral tradition which, according to the United Nations Declaration of Rights of Indigenous Peoples, Art. 31, the Lakotas have a right to maintain, control and protect.

Some Charge Anti-Semitism In Non-Renewal of Central Missouri University President

Last month the Board of Trustees of the University of Central Missouri voted 4-3 not to renew the contract of its president, Aaron Podolefsky. Now, according to yesterday's Kansas City Jewish Chronicle, some are asking whether anti-Semitism had anything to do with the Board's decision. Apparently much of the opposition to Podolefsky came from supporters of the University's athletic teams and particularly Gregg Hassler, part-owner and sports director of a local radio station that holds the contract to broadcast the University's football and basketball games. Hassler had already criticized Podolefsky's wife, an attorney, for filing a suit on behalf of six players against the local high school's girls' basketball coach charging discrimination and sexual abuse. Then the day after Podolefsky's ouster was announced, Hassler inaccurately accused him of ending a tradition of having a Christmas tree in the front yard of the President's on-campus residence. It turns out the cedar tree at issue was removed during the prior president's tenure. Those claiming anti-Semitism are pointing to the attitude reflected in Hassler's on-air remarks after the firing:

the thing that really upset me ... was, for years there was a Christmas tree lit at Selmo Park.... He stopped that. I mean I think every religion should be able to celebrate, uh, in their own way, but, I mean we do live in Warrensburg, Missouri. This is America. You know. Let’s bring that back....

Arizona Official Testifies On Loopholes In Tuition Tax Credit Law

Even though the 9th Circuit has stuck down as unconstitutional Arizona's program that grants tax credits to fund private-- mostly religious-- school scholarships (see prior posting), the state's attorney general and legislature are moving ahead on several fronts as if the program is still operational. The Arizona Republic reported yesterday that the attorney general is considering suing some of the non-profit School Tuition Organizations because they have not distributed 90% of the donations they have received, as required by the law. Assistant Attorney General Susan Myers also told a House legislative hearing on Thursday that some loopholes in the law should be closed. She urged barring donors from recommending who should receive scholarships from the funds they donate, requiring unspent funds to go to the state, setting income eligibility for scholarships, and requiring independent audits of School Tuition Organizations. Also a state legislator has asked the Internal Revenue Service to explore whether School Tuition Organizations violate the requirements of Section 501(c)(3) of the Internal Revenue Code. Meanwhile the Institute for Justice says it will ask the U.S. Supreme Court to review the 9th Circuit's invalidation of the scholarship program.

Westboro Baptist Church Turns To Anti-Semitic Picketing

Friday's USA Today reports on the shift in recent months by members of the Westboro Baptist Church from picketing funerals and government buildings with anti-gay signs, to picketing of Jewish events and institutions carrying anti-Semitic signs. Since April, members of the Topeka, Kansas Church-- often family members of its founder Fred Phelps--have targeted some 200 synagogues, Jewish community centers, campus Hillel buildings and Jewish events. This week they picketed the national meeting of the Jewish Federations of North America in Washington. One of the group's signs in Washington read "God Hates Jews," and a T-shirt worn by Margie Phelps read "Jews Killed Jesus." Purporting to explain their new tactics, Margie Phelps accused Jews of "carrying the water for the homosexual agenda." Experts say this new tactic is more about getting publicity than attacking Jews per se. Most Jewish organizations that have been targeted have decided not to conduct counter-protests at the same time, though some have used the attacks to mount subsequent interfaith events stressing more positive themes.

7th Circuit En Banc Upholds Cause of Action By Condo Owners Whose Mezuzah Was Banned

In an en banc rehearing in Bloch v. Frischholz, (7th Cir., Nov. 13, 2009), an 8-judge panel held that plaintiffs, who were Jewish condominium owners, could have a claim under two provisions of the federal Fair Housing Act for action by the condominium association in reinterpreting its rules to ban residents from placing mezuzot on their outside doors. The court held that if it can be shown that defendants acted with discriminatory intent, there would be a cause of action under 42 USC §3604(b) (anti-discrimination ban) and §3617 (ban on interference with fair housing rights), even though the discrimination occurred after the purchase of the condo units. Under Section 3604(b), there would be discrimination in the conditions of purchase because plaintiffs' in purchasing agreed to abide by conditions later imposed by the condominium board. In finding that the Fair Housing Act can support a claim for post-purchase discrimination, the eight judges rejected the 2-1 decision of a three-judge panel in July 2008. (See prior posting.) Today's Chicago Sun-Times reported on the decision.

Evangelist Tony Alamo Sentenced To 175 Years On Mann Act Charges

Evangelist Tony Alamo, a self-proclaimed prophet and church leader, was sentenced by an Arkansas federal judge on Friday to 175 years in prison and $250,000 in fines on ten Mann Act counts charging him with taking young girls across state lines for sex. AP reports that a hearing is scheduled in January on whether his five victims are entitled to restitution as well. Alamo purported to marry each of the five victims while they were minors. In sentencing Alamo, Judge Harry F. Barnes told him: "Mr. Alamo, one day you will face a higher and a greater judge than me. May he have mercy on your soul." FBI and Arkansas state troopers raided Alamo's Arkansas compound last year. (See prior posting.) Prosecutors will work with federal prison officials to prevent Alamo from controlling his ministry and its businesses from prison.

US Sues To Seize Iranian Funded Mosqes and Schools In 4 US Cities

Yesterday in New York, federal prosecutors filed a civil complaint against the Alavi Foundation seeking forfeiture of over $500 million in assets including not only bank accounts and an office tower in New York, but also Islamic centers housing mosques and schools in New York City; Rockville, Maryland; Carmichael, California; and Houston, Texas. The New York Times yesterday reported that the lawsuit alleges the Foundation for years has been secretly controlled by officials of Iran, including Iranian ambassadors to the United Nations. The Islamic centers and schools will be allowed to carry on their normal activities as the case proceeds. They merely need to post notices of the civil complaint on the property. It is rare for the government to seize houses of worship. It is not clear what the government will do with the properties if it succeeds in the lawsuit. Funding of the mosques and schools may be impacted sooner if the federal government seizes the New York office building whose rents contributed to their funding.

The forfeiture claim stems from allegations that the Alavi Foundation illegally funnelled millions of dollars of rental income to Iran's state-owned Bank Melli. It is illegal to do business with the bank in the U.S. under Executive Order 13382. The Executive Order blocks U.S. property of those who support proliferators of weapons of mass destruction. Bank Melli is among those that are listed by the Office of Foreign Assets Control as covered by the ban.

UPDATE: Today's Washington Post reports on federal marshals delivering notice that begins the seizure proceedings at the Islamic Education Center in Potomac, Maryland.

US Officials Repatriate Bible Taken By Nazis In Kristallnacht

Earlier this week, federal Homeland Security officials participated in a ceremony at the Holocaust Museum in Washington, D.C. at which a 16th century Bible that had been seized 71 years ago by the Nazis on Kristallnacht was returned to the Jewish community of Vienna. Earlier this year, Immigration and Customs Enforcement (ICE) officials discovered that the Bible was being offered for sale by a New York auction house. ICE and the U.S. Attorney's Office in New York notified the Bible's owner-- who lived in Switzerland-- of its origins, and the owner agreed to its seizure by U.S. officials so it could be returned to Vienna's Jews to whom it had been donated in 1908. A press release from the U.S. Attorneys Office for the Southern District of New York indicated that the return, on the anniversary of Kristallnacht, was the third time this year that U.S. officials have repatriated artwork or property stolen during the Holocaust. Haaretz yesterday reported on the Bible's return.

North Carolina High Court Upholds Fees On Homes In Methodist Development

In Southeastern Jurisdictional Administrative Council, Inc. v. Emerson, (NC Sup. Ct., Oct. 9, 2009), the North Carolina Supreme Court upheld the 1996 levy of annual service charges on property of homeowners in a development that was created 100 years ago by an arm of the Methodist Church. The development is a center for religious conferences and retreats as well as a private residential community. It includes 700 private homes plus a lake, meeting facilities, hotels, campgrounds and museums. Owners of two properties objected to paying assessed fees. Their deeds contained covenants providing that the land is held subject to community rules adopted from time to time by the Lake Junaluska Assembly. The court found the new service charges reasonable and enforceable, emphasizing that "the Assembly has existed for nearly a century and has spent that entire time purposefully developing its unique, religious community character."

Justice Edmunds, concurring, emphasized the unique nature of the Lake Junaluska Development. Justice Hudson, dissenting, argued that "the restrictive covenants at issue do not contemplate any affirmative financial assessment on defendants" and the unique religious community character of the development should be irrelevant. The Lincoln (NC) Tribune reports on the decision.

Islamic Party Will Run Local Candidates In Spain In 2011

World Bulletin reports today that "Rebirth and Union," Spain's first Islamic political party, is planning to run candidates in 2011 local elections. Head of the party, professor and former journalist Mustafa Barrach, says he is a moderate and supports Spain's constitution. The party is aiming not just at the 1.3 million Muslims in Spain, but also at immigrants who comprise 10% of Spain's population.

Australian Animal Rights Groups Dispute Ritual Slaughter Methods

In Australia, animal rights groups are criticizing a decision by federal and state agriculture ministers to allow ritual slaughter of animals without first stunning them to continue at four slaughter houses in the country. Nov. 10 and Nov. 13 articles in The Age report that the previous federal government two years ago ordered an investigation into the practice of Halal and kosher slaughtering of animals while they are still conscious. Authorities have agreed to release two scientific reports that have been written, and to engage in further consultations.

According to the Sydney Morning Herald last week, Princess Alia bint al-Hussein of Jordan, sister to King Abdullah II, has written Australian Prime Minister Kevin Rudd urging him to withdraw the exemptions currently held by the four Australian plants. She says that killing without stunning is not required by Islamic law and that permitting it in Australia could undermine efforts in the Middle East to require stunning of animals before slaughter. Only a tiny percentage of meat exported from Australia is killed without stunning, but industry sources are concerned that the exemptions will tarnish the image of the entire industry in Australia. Australia's Meat Trade News Daily says that Australia's Fletcher International Exports-- the largest halal seep meat exporter in the world-- has convinced its customers to accept meat that has been killed with prior stunning of the animals. [Thanks to Steven H. Sholk for the lead.]

South Carolina Gubernatorial Hopeful Defends Christian Prayer At Council Meetings

The Palmetto Scoop yesterday reported that South Carolina Attorney General Henry McMaster who is running in the Republican primary in June 2010 to become the state's next governor has released a web video strongly supporting the right of city councils to open their meetings with sectarian prayer. Referring to a suit brought by the ACLU on behalf of a Wiccan high priestess against the Great Falls, SC Town Council, McMaster said: "we told them that we would fight for them. As I have said, under the Constitution, you are allowed to pray the way you want to pray. If you want to pray to Jesus, which of course many people do, then that's the way that you ought to be allowed to pray." McMaster added: "one day, I believe the U.S. Supreme Court will recognize that they've gone off the deep end with their rulings against prayer...."

D.C. Catholic Archdiocese Threatens To End Social Services Over Gay Marriage Bill

In Washington, DC, the Catholic Archdiocese is threatening to end the social service programs it operates under contract with the city if City Council does not include broader religious exemptions in the same-sex marriage bill that it will vote on next month. In a press release issued on Tuesday, after the Council's Committee on Public Safety and the Judiciary voted to narrow the language on exemptions for religious organizations, the Archdiocese said:

Under the bill, religious organizations do not have to participate in the "solemnization or celebration" of a same-sex marriage ceremony. An earlier version of the bill also exempted them from "the promotion of marriage that is in violation of the entity’s religious beliefs." The revised language significantly narrows that exemption to the "promotion of marriage through religious programs, counseling, courses, or retreats."

As a result, religious organizations and individuals are at risk of legal action for refusing to promote and support same-sex marriages in a host of settings where it would compromise their religious beliefs. This includes employee benefits, adoption services and even the use of a church hall for non-wedding events for same-sex married couples. Religious organizations such as Catholic Charities could be denied licenses or certification by the government, denied the right to offer adoption and foster care services, or no longer be able to partner with the city to provide social services for the needy.

The Washington Post this morning says that Catholic Charities serves 68,000 people in the District, including one-third of the homeless, who go to city-owned shelters managed by the Church. From 2006 to 2008, the Catholic Church received $8.2 million in city contracts, and supplemented city social service funding with $10 million per year of its own funds. Jane G. Belford, chancellor of the Washington Archdiocese, told City Council that: "All of those services will be adversely impacted if the exemption language remains so narrow." However, City Councilman David A. Catania said he would rather end the city's relationship with Catholic charities than give in to the Church's demands. [Thanks to both Steven H. Sholk and Scott Mange for the lead.]

Denmark's Muslims Face Political Opposition To Building of New Mosques

Today's New York Times reports on the political opposition in Denmark to plans by for the building of two grand mosques in Copenhagen. City council has already approved plans for a Shiite mosque, and the smaller Sunni community is also moving ahead with construction plans. However the conservative, anti-immigrant Danish People's Party has been gaining support, and controversy over constructing these mosques may garner it up to 12% of the vote in upcoming municipal elections. Controversy four years ago over the Muhammad cartoons and, more recently, gang wars and shoot-outs involving immigrants, have fed anti-immigrant sentiment. City officials say Muslims have a right to build. The minarets would be slim and there would be no calls to prayer broadcast. However, Martin Henriksen, one of the leaders of the People's Party fears that Iran is involved in the plans to build the Shiite mosque, and insists that immigrants need to show a willingness to "become Danes".

USCIRF Issues Policy Document Opposing UN Defamation of Religions Proposal

The U.S. Commission on International Religious Freedom yesterday issued a new Policy Focus publication titled: The Dangerous Idea of Protecting Religions from "Defamation": A Threat to Universal Human Rights Standards. The Executive Summary reads in part:

Although touted as a solution to the very real problems of religious persecution and discrimination, the OIC-sponsored UN resolutions on this issue instead provide justification for governments to restrict religious freedom and free expression. They also provide international legitimacy for existing national laws that punish blasphemy or otherwise ban criticism of a religion, which often have resulted in gross human rights violations. These resolutions deviate sharply from universal human rights standards by seeking to protect religious institutions and interpretations, rather than individuals, and could help create a new international anti-blasphemy norm.

The United Nations General Assembly is expected to vote shortly on this year's version of the resolution on Combating Defamation of Religions (full text) sponsored in the General Assembly's Third Committee by Syria (on behalf of the Organization of the Islamic Conference), Belarus and Venezuela.

UPDATE: Europe News reported on Nov. 12 that the OIC has written a letter (full text) to the Chairman of the U.N. Committee on Complementary Standards defending its defamation of religions proposal against charges that it infringes on freedom of expression.

Idaho Charter School Rebuffs Document Request From State Commission

As previously reported, an Idaho charter school, the Nampa Classical Academy, has filed a federal lawsuit against members of the Idaho Public Charter School Commission and other state officials, challenging a Commission order banning the use of the Bible or any other religious documents or texts in public charter school classrooms. Now, according to an AP report yesterday, the school has refused to comply with a public records request from the Public Charter School Commission. Claiming that the request could interfere with its pending lawsuit, the school's acting board chairman Michael Moffett, refused to furnish information on an assignment for seventh-graders called "Comparing the Codex Hammurabi with the Mosaic Law." Moffett also asked the Commission to stop requesting other documents that relate to the case. Moffett, whose brother founded the school, has been controversial. Since October, seven board members have resigned over conflicts with him. The Commission is investigating compliance issues regarding the school, and a hearing is scheduled today.

New York City Anti-Discrimination Law Given Broad Reading

In Lampner v. Pryor Cashman, (NY Sup. Ct., Nov. 6, 2009), a New York state trial court ruled that the New York City Human Rights Law, as amended in 2005, creates greater protection against a hostile work environment than does New York state or federal law. The lawsuit was brought against a law firm by an Orthodox Jewish employee who worked as a computer system network manager for the firm. The employee scheduled his work so he could leave early on Fridays and not work on Saturdays or Jewish holidays. He claimed harassment due to his religious beliefs, including placing him in a cubicle, placing another employee of lower rank in his office, taking away his privileges, monitoring his phone conversations, and encouraging him not to continue observing his religious tenets. He also alleged a derogatory slur was directed at him. The court, relying on an appellate decision from a different state appellate district, held that a hostile work environment claim can be maintained even if the work environment was not permeated with discriminatory intimidation, ridicule and insult. So long as the offensive conduct was more than petty slights and trivial inconveniences, a violation has occurred. The severity of the conduct goes to assessing damages. Yesterday's New York Law Journal reported on the case. [Thanks to Joel Sogol via Religionlaw for the lead.]

British Case Focuses On Whether Belief In Psychics Is Protected Under Employment Equality Rules

London's The Independent reports today on an appeal pending in Britain's Employment Appeal Tribunal. Former police trainer Alan Power was fired by the Greater Manchester Police department. Power believes in psychics and their usefulness in police investigations. The police department appealed after a Manchester Employment Tribunal judge held that Power's belief could fall under the protections of the Employment Equality (Religion or Belief) Regulations 2003. In the case below, Judge Peter Russell said:

I am satisfied that the claimant's beliefs that there is life after death and that the dead can be contacted through mediums are worthy of respect in a democratic society and have sufficient cogency, seriousness, cohesion and importance to fall into the category of a philosophical belief for the purpose of the 2003 Regulations.

The judge said that Power would still have to show that his firing was because of his belief, and not because he was inappropriately trying to press his beliefs on others. This case follows a decision last week by the Employment Appeals Tribunal that environmentalist beliefs could be covered by the equality regulations. (See prior posting.)

American Legion Dropped From School Veterans' Day Ceremony Over Prayer

Minnesota's Bloomington School District this year used teams from the Minnesota Army National Guard to present arms and help raise the flag at Veterans' Day ceremonies at 15 district schools. Tuesday's Minneapolis Star-Tribune reported that school officials dropped the American Legion because it insisted that it would participate only if the ceremony included leading students in prayer. Elementary school principal Gail Swor raised questions after the Legion participant last year asked everyone to bow their heads in prayer. The VFW, which had also participated last year dropped, out this year in support of the Legion. The American Legion is also holding back on $25,000 to $30,000 in scholarships that it has traditionally awarded. American Legion Post commander and former Vietnam Army medic Terry Selle defended his position, saying: "We are not trying to push anything on kids or convert them, but we are a Christian-based country and a military based on Christian-based principles. My opinion is that this is another example of America going downhill." [Thanks to Scott Mange for the lead.]