Recent Prisoner Free Exercise Cases

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 110710 (ND CA, Nov. 10, 2009), a California federal district judge dismissed an inmate's claims that his free exercise rights were violated by prison authorities' failing to provide kosher meals, permit attendance at Jewish service, and provide a staff rabbi. The court found this was duplicative of another suit already filed by plaintiff.

In Grayson v. Evans, 2009 U.S. Dist. LEXIS 111953 (SD IL, Dec. 1, 2009), an Illinois federal district court permitted an inmate to proceed with his claim that his free exercise rights were violated when he was sent to segregation for refusing to cut his hair. He claims that his African Hebrew-Israelite religion requires him to grow his hair long.

In Williams v. Sampson, 2009 U.S. Dist. LEXIS 111589 (ED CA, Nov. 13, 2009), a California federal magistrate judge concluded that an inmate's claims that prison officials failed to set up a religious program for Muslim prisoners were too vague to state an equal protection or free exercise claim.

In Lawson v. Florida Department, 2009 U.S. Dist. LEXIS 111747 (ND FL, Nov. 3, 2009), a Florida federal magistrate judge found that plaintiff had misrepresented facts to the Court and pursued a frivolous, malicious claim in asserting that his free exercise rights were being burdened by prison officials. Plaintiff's claim was based on his assertions that he was an Orthodox Jew, while extensive evidence was presented that he consistently violated Jewish religious practices. As a Rule 11 sanction, the court recommended the lawsuit be dismissed, it be deemed a "strike" and its findings be sent to the Department of Corrections for other possible sanctions.

In Matter of Rossi v. Lape, (Sup. Ct. NY, Oct. 15, 2009), a New York trial court dismissed a Rastafarian prisoner's complaint alleging that some of his requests relating to the practice of his religion were rejected. The requests involved using the gymnasium as consecrated ground, preparation of food and availability of certain regalia for a Rastafarian event, and creation of an organization to raise funds for Rastafarian items.

In Zaahir v. Commonwealth of Kentucky, (KY Ct. App., Dec. 4, 2009), a Kentucky appellate court held in a 2-1 decision that appellant's free exercise rights do not require court and prison officials to change their records to reflect his religious name change.

Teachers Testify, Complaining About Consent Decree Banning Religion In Schools

In a 9-page consent decree issued last May (see prior posting), a Florida federal district court enjoined Santa Rosa County, Florida school officials from promoting or participating in any way in prayer with students at school events or during instructional time. However then a teacher's group, the Christian Educators Association, attempted to intervene to challenge the consent decree. (See prior posting). The court scheduled a hearing on whether the organization could show it has standing to seek a modification of the consent decree on the ground that it impacts the free speech or free exercise rights of teachers or employees. That hearing took place this week, with rather intriguing testimony from some of the district teachers.

Thursday's Pensacola News Journal reports on the testimony of third-grade teacher, Vicki Kirsch, who said: "My Christian beliefs are under attack and ... I wasn't able to do the things that I could do before the consent decree." She recounted that she is afraid to say, "God bless you," to a fellow teacher, and in not sure if she can let students talk about their baptisms in speeches to classes. She also complained she had to remove a cross from a personal area of her class room. A release from Liberty Counsel describes the testimony of two other witnesses:

Michelle Winkler broke down on the witness stand when she described how a coworker sought comfort from her after losing her two-year-old child. The two hid behind a closet door to pray, for fear they would be seen and held in contempt of the court order. Denise Gibson, an elementary teacher for 20 years, testified the order forces her to tell parents she cannot respond if they talk about church or their faith. She may not even respond to an email from a parent if it contains a Scripture verse or "God bless you." Instead, the District requires her to open a separate email to respond rather than hit "reply," in order to eliminate any trace of religious language.

On Friday, federal district judge Casey Rodgers ordered counsel for both sides to submit their closing arguments in writing. (Pensacola News Journal).

Tajik Authorities Say Baptists Must Register Before Gathering To Worship

In Tajikistan's capital of Dushanbe, a District Court has ordered a Baptist congregation to stop meeting for worship in an apartment of one of the congregation's leaders. Reports this week from Forum 18 and ABP say that officials insist the church must register under the country's Religion Law before it can meet. The Baptists refuse to do so on principle, and insist that under the Religion Law they should be permitted to meet privately without registration. The Baptists have filed an appeal of the ban with the Dushanbe City Court.

7th Circuit: Sheriff Unconstitutionally Endorsed Christian Speakers

In Milwaukee Deputy Sheriff's Association v. Clarke, (7th Cir., Dec. 4, 2009), the U.S. 7th Circuit Court of Appeals held that a Wisconsin sheriff's department violated the Establishment Clause when it invited representatives of the Fellowship of the Christian Centurions, a peer support group for law enforcement officers, to speak at several mandatory employee meetings. The court said:

We do not suggest ... that religiously affiliated groups are always constitutionally barred from working with or speaking to government employees. Rather, we limit our analysis to the facts of this case, where an authority figure invited a Christian organization that engaged in religious proselytizing to speak on numerous occasions at mandatory government employee meetings. A reasonable observer would have been well aware that the Sheriff did not extend such privileges lightly. Most other organizations that received similar access shared a common attribute: the Sheriff had expressed an interest in partnering with them. Indeed, it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.

(See prior related posting.) Yesterday's Milwaukee Journal Sentinel reported on the decision.

Canadian Court Says Pastor's Anti-Gay Letter Was Protected Speech

In June 2008 in the Canadian province of Alberta, the Human Rights and Citizenship Commission ordered pastor Stephen Boissoin and his Concerned Christian Coalition to stop publishing and broadcasting disparaging remarks about gays, after earlier finding that a letter Boisson published in the Red Deer Advocate incited hatred against homosexuals in violation of the province's human rights law. The Commission also awarded $5000 damages to the high school teacher who had filed the complaint. (See prior posting.) On Thursday, according to Canadian Press, a Court of Queen's Bench in Alberta overturned the Commission's ruling, finding that Boisson's letter was protected free speech.

5th Circuit Hears Arguments In Native American School Boy's Hair Style Case

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Arocha v. Needville Independent School District. (Recording of full oral arguments.) In the case, a Texas federal district court enjoined school officials from enforcing the district's hair style policy against a 5-year old whose family taught him to wear his hair in two long braids in the tradition of Native American religions. The school board was only willing to accommodate the request by allowing the boy to wear his hair in a single braid, tucked into the back of his shirt. (See prior posting.) As reported by AP, school officials argued that their grooming policy was designed to teach proper hygiene, promote discipline and avoid school disruptions.

'Tis The Season For Battles Over Holiday Displays On Public Property

This is the time of year when disputes over holiday displays on public property and be expected. Here is a sampling of the most recent.

According to an editorial in the Desert Valley (NV) Times, some residents of Mesquite, Nevada boycotted the mayor's tree lighting ceremony on Tuesday because a notice of the event she sent out referred to it as a "holiday tree." The event included a prayer by a Presbyterian pastor, a plea from the mayor to remember the message that accompanied the birth of Jesus Christ, and City Council singing We Wish You a Merry Christmas. Mayor Susan Holecheck said she had to use the term "holiday tree" because of the potential for lawsuits from the ACLU and others.

Today's Santa Cruz (CA) Sentinel reports that according to Santa Cruz city officials, for years they have been issuing the wrong kind of permit to Chabad Rabbi Yochanan Friedman who puts up a menorah in downtown Santa Cruz. Officials say the permit he should be issued requires him to furnish round-the-clock security for the menorah. This would cost around $5000. This follows a campaign by atheists in the city to have the menorah removed from public property, though city officials say that did not influence their action. The city will continue to have a community tree downtown, with lights but no ornaments, and says security is not required for that. Also Mai Dao-Horton, who began the petition to have the menorah removed, says the tree is permissible because the city has "done a conscientious job of de-Christianizing it." [Thanks to Scott Mange for this lead.]

UPDATE: JWeekly (12/10) reports that an agreement has been worked out to for Chabad to provide insurance and daytime monitoring, and to go ahead with a display for 8 days and nights on that basis.

UPDATE2: Mai Dao-Horton has e-mailed me saying that the statement attributed to her by the Santa Cruz Sentinal was in fact made by Sonya Newlyn. She says she was misquoted twice in the Sentinel article.

In Ashland, Oregon, dozens of parents are upset after Bellview Elementary School Principal Michelle Zundel removed a holiday tree when a family complained that it is a religious symbol. According to today's Southern Oregon Mail Tribune, the principal also created new guidelines for school displays that effectively bar holiday trees, Santa Claus figures and dreidels, that courts generally classify as secular. However, under the new guidelines, wreaths, candles, candy canes, snowflakes and snowmen are permitted. Organizers of the "giving tree program" said they were not trying to promote Christianity, but were merely trying to help needy students and spread holiday cheer with the tree. Zundel said that with compulsory attendance, schools need to be more sensitive than the law requires. UPDATE: KGW News reported on Dec. 10 that a compromise has been reached in Ashland. The original tree will be replaced by a holiday display including three trees, snow and gifts for needy children.

South African Court Allows Zulu Thanksgiving Ritual To Proceed

IOL reports that in South Africa today, the Pietermaritzburg High Court dismissed a challenge by Animal Rights Africa to the Ukweshwama ceremony practiced by Zulus. The ceremony involves the bare-handed killing of a bull as a way of thanking God for the first crops of the season. Zulus believe that by killing the bull, they are transferring its power to their king. East Coast Radio on Wednesday summarized the arguments made at trial. In allowing the ceremony scheduled for tomorrow to proceed, the judge said that he was persuaded by the affidavit [described here] of a cultural expert, Professor Jabulani Mapalala, that objections to the ritual were based on untrue information and hearsay. In a statement issued after the court's decision was released, ARA asked people to light a candle tomorrow afternoon and spend the day in reflection in solidarity and compassion with the bull that will be slaughtered. [Updated]

Court Says White Supremacist Movement Is Not A "Religion"

In Conner v. Tilton, 2009 U.S. Dist. LEXIS 111892 (ND CA, Dec. 2, 2009), in a decision unusually detailed in its analysis for a case brought by a prisoner pro se, a California federal district court held that the White supremacist Creativity Movement is not a "religion" for purposes of the First Amendment or RLUIPA. In the case, an inmate sought the right to practice various aspects of his purported religion in Pelican Bay State Prison. In deciding the case, the court relied on the definition of "religion" articulated by the 3rd Circuit in Africa v. Pennsylvania:

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.

Applying that to Creativity, the court found that Creativity does not deal with fundamental and ultimate questions. Rather, its focus is on "a pragmatic philosophy that Creators must act to ensure the survival and promote the dominance of certain members of society." It is not comprehensive. "[T]he essence of Creativity is confined to 'one question or one moral teaching' which, again, can be summed up by Creativity's Golden Rule: 'What is good for the White Race is the highest virtue; what is bad for the White Race is the ultimate sin.'" Finally, "while plaintiff has presented evidence that shows Creativity has formal and external characteristics that might be considered similar to those associated with more traditional religions, their sole purpose is to support what the Court already has found to be a secular belief system."

Intervention Denied In Case Challenging Parsonage Allowance

In Freedom from Religion Foundation v. Geithner, 2009 U.S. Dist. LEXIS 111776 (ED CA, Dec. 2, 2009), a California federal district court refused to permit a pastor to intervene in FFRF's Establishment Clause challenge to the parsonage allowance provisions in the federal and California tax laws. (See prior posting.) The pastor failed to show that the government will inadequately represent his interests in defending the challenge to the tax code provisions that exclude from income the value of housing (or housing allowances) furnished to "ministers of the gospel." The court however did grant the pastor's motion for leave to file an amicus brief.

Obama Lights National Christmas Tree

President Obama and his family last night lit the National Christmas Tree-- a 40 foot Colorado blue spruce growing on the Ellipse just south of the White House. AP reports on the ceremony which featured celebrity entertainers, Santa and Mrs. Claus, and Michelle Obama reading The Night Before Christmas to a group of children. In his remarks (full text), President Obama said in part:

Tonight, we celebrate a story that is as beautiful as it is simple. The story of a child born far from home to parents guided only by faith, but who would ultimately spread a message that has endured for more than 2,000 years -- that no matter who we are or where we are from, we are each called to love one another as brother and sister.

While this story may be a Christian one, its lesson is universal. It speaks to the hope we share as a people. And it represents a tradition that we celebrate as a country -- a tradition that has come to represent more than any one holiday or religion, but a season of brotherhood and generosity to our fellow citizens.

9th Circuit Grants Indian Tribes Preliminary Injunction Against Mt. Tebo Mining Project

In South Fork Bank Council of Western Shoshone of Nevada v. U.S. Department of the Interior, (9th Cir., Dec. 3, 2009), a group of Indian tribes sought a preliminary injunction to stop Barrick Gold Corp.'s open pit gold mining project on Nevada's Mt. Tebo. The mountain is a religious site for the tribes. The district court denied a preliminary injunction. (See prior posting.) On appeal the tribes did not challenge the district court's rejection of their claim under the Religious Freedom Restoration Act. The tribes would continue to have access to the areas that had the most religious significance to them. However the tribes did appeal the denial of relief for alleged violations of the Federal Land Policy Management Act (FLMPA) and the National Environmental Policy Act (NEPA).

The court of appeals agreed with the district court that the executive branch had complied with an Executive Order issued under the FLPMA requiring accommodation of tribal access and ceremonial use of sacred sites and barring physical damage to the sites. However the court of appeals agreed with the tribes that the government had violated NEPA. It ordered entry of a preliminary injunction because, in its environmental impact statement, the Bureau of Land Management had not adequately studied the serious effects of processing refractory ore and exhausting scarce water resources. AP reports on the decision.

State TV In Iran Bans Make-Up For Women

ProductionME reported yesterday that Ezatollah Zarghami, head of Iran's state television, has ordered that women appearing on television will not be permitted to wear make-up. Saying that make-up is against Islamic Sharia law, Zarghami told producers to be vigilant. He also said that programs use excessive music and urged his staff to "refine" their music.

Bridgeport Diocese Releases Priest Sexual Abuse Records

On Tuesday, the Roman Catholic Diocese of Bridgeport (CT) announced that it had complied with the heavily contested court order requiring it to release previously sealed documents relating to 23 now-settled sexual abuse lawsuits against seven priests. Four newspapers had sought release of the documents. Both the Hartford Courant and the New York Times summarized some of the 12,000 pages of memos, records and testimony, focusing particularly on depositions by then-Bishop Edward Eagan. The Harford Courant, which has links to the full text of a number of the documents, says: "the Bishop showed little compassion for the alleged victims and instead argued with attorneys that only a 'remarkably small number' of priests have ever been accused of wrongdoing."

Church Challenge To Zoning Enforcement Not Barred By Claim Preclusion

In McGuire v. Clackamas County Counsel, 2009 U.S. Dist. LEXIS 111390 (D OR, Nov. 24, 2009), an Oregon federal district court rejected a magistrate's findings that "claim preclusion" required dismissal of claims by the pastor-founders of a local church alleging that application of local zoning ordinances violated their free exercise of religion. The federal magistrate judge's recommendations, with additional background, are at McGuire v. Ciecko, 2009 U.S. Dist. LEXIS 111127 ( D OR, Oct. 26, 2009). The suit also alleged that the local prosecutor in the earlier case seeking zoning enforcement had defamed plaintiffs by attacking their motives for forming a church. The district court accepted the magistrate's recommendation that this claim against the prosecutor be dismissed on immunity grounds, but referred the case back for the magistrate to rule on whether the immunity defense applied to other defendants in the case as well.

FLDS Church Asks Court To Replace Special Fiduciary

Yesterday the FLDS Church took yet another step in opposing long-running efforts by a Utah state court to reform the $120 million United Effort Plan Trust which holds land that before 2005 had been controlled communally by leaders of the polygamous FLDS Church. (See prior posting.) Salt Lake Tribune reports that a motion was filed yesterday by the corporation of the president of the FLDS church and the estate of Rulon T. Jeffs, the sect's former president, seeking removal of Bruce R. Wisan as the court-appointed special fiduciary. The motion, seeking appointment of someone else as fiduciary, claims that Wisan has failed to protect trust property and is biased against FLDS members. The motion also argues that Wisan has developed a conflict of interest: "While the interests of trust beneficiaries strongly favor keeping the property to the trust intact, the interests of Mr. Wisan and his lawyers now favor liquidation in order to pay their very substantial fees." This follows a motion filed last month by the estate of Rulon Jeffs seeking return of the UEP trust to Jeffs estate. (See prior posting.)

British Tribunal Says Counselor Can Be Fired For Refusing To Counsel Gay Couples

In McFarlane v. Relate Avon Ltd., (EAT, Nov. 30, 2009), Britain's Employment Appeal Tribunal rejected claims by a counselor employed by a relationship counseling service that his dismissal violated Britain's Employment Equality (Religion or Belief) Regulations. The counseling service dismissed Gary McFarlane after he refused to counsel same-sex couples on psycho-sexual issues. McFarlane argued that his Christian religious beliefs precluded him from undertaking counseling services that endorsed same-sex sexual relations. The Tribunal concluded that it is legitimate for the counseling service to require all its employees to adhere to its fundamental pledge that it will not deny counselling services to a client merely because of disapproval of the client's conduct. Charisma News reported on the decision yesterday.

New York Senate Defeats Same-Sex Marriage Bill; DC Bill Moves Ahead

Yesterday the New York State Senate, by a vote of 24-38, defeated a bill that would have permitted same-sex marriage in the state. The bill, strongly supported by Gov. David Patterson, had already passed the state Assembly. AP reports that the bill lost by a wider margin than had been expected. The New York Daily News has details of the roll-call vote. The Senate debate included references to religion and the Bible by those on both sides of the issue. (Baptist Press.) After the vote, the New York State Catholic Conference issued a statement saying that the bishops are "pleased and grateful" that the Senate "rejected the concept that marriage can be anything other than a union between one man and one woman."

Meanwhile, Washington, D.C.'s city council, by a vote of 11-2, gave tentative approval on Tuesday to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The Washington Times reports that a final Council vote is scheduled for December 15 on the bill that would authorize same-sex marriage in the District. Then Congress would have 30 days to review the law and disapprove it. (See prior related posting.)

5th Circuit OK's School Rules on Student Distribution of Materials

In Morgan v. Plano Independent School District, (5th Cir., Dec. 1, 2009), the U.S. 5th Circuit Court of Appeals found that rules adopted in 2005 by a Texas school district restricting student distribution of written materials are constitutional, at least on their face. The lawsuit was filed when students, under a 2004 version of school rules, were prohibited from distributing religious themed pencils and candy canes, as well as tickets to church musical and drama programs. Under the modified rules adopted in 2005, students can distribute materials before and after school and at recess, at 3 annual parties and during school hours from designated tables. Middle and high school students can also distribute materials in halls and cafeterias during non-instructional times. The court concluded that these are reasonable, content-neutral restrictions aimed at providing a focused learning environment. They are narrowly tailored and leave open sufficient alternate channels of communication. The court, however, remanded to the district court the issue of whether the 2004 restrictions were constitutional, saying that plaintiffs' request for nominal damages prevents that challenge from being moot. AP yesterday reported on the decision.

Arkansas Appellate Court Upholds Removal of Children From Alamo Compound

The Arkansas Court of Appeals on Nov. 18 decided three cases involving children who were taken into emergency custody by the Arkansas Department of Human Services from the Tony Alamo Christian Ministries compound in Fouke, Arkansas. (See prior posting.) In all three cases the court affirmed the trial courts' determinations that the children were in a potentially dangerous situation in the compound which was raided last September, and therefore were properly found to be dependent-neglected. The cases are Seago v. Arkansas Department of Human Services, Broderick v. Arkansas Department of Human Services, and Reid v. Arkansas Department of Human Services.