Religious Land Use Disputes Continue To Arise: Michigan Church, Connecticut Chabad House

Zoning disputes involving religious institutions continue to arise around the country. Here are two recent ones. In Benton Township, Michigan, the Overflow Church wants to move its religious services and community outreach programs into a former Sears store that was donated to the church by the building's owner. Tuesday's Benton Harbor- St. Joseph Herald-Palladium reports on the Planning Commission hearing at which the church asked for a special use permit to allow it to operate in the commercial-zoned area. The owner of nearby Orchard Mall opposes the church's plans, saying the proposed use is not compatible with the mall and adjacent properties. Separately the mall owner is suing the church arguing that a 1978 operating agreement with Sears requires the property to be used for retail purposes.

Meanwhile, in Hartford, Connecticut, a Jewish group, Chabad Chevra, has filed a federal lawsuit claiming that its free exercise, speech, association, equal protection and due process rights and its rights under RLUIPA have been violated by the city's refusal to allow it to use a building it purchased as a Chabad House for religious worship, educational and university student activities and as a residence for its rabbi. The property had previously been used by a Baptist organization, and before that by a Catholic group, for religious purposes. The complaint (full text) in Chabad Chevra LLC v. City of Hartford, Connecticut, (D CT, filed 3/8/2010), charges that the city is burdening plaintiff's religious exercise, favoring nonreligious institutions over religious ones, and in particular is discriminating against proposed university student religious use of the premises. It claims that the city's action is based in large part on "anti-Hasidic animus." Courthouse News reported on the case yesterday. [Thanks to Steven H. Sholk for the lead.]

Faith-Based Advisory Council Report Released

The White House today released the final version of the report of the President's Advisory Council on Faith-Based and Neighborhood Partnerships. (See prior related posting.) The report is titled A New Era of Partnerships. It contains recommendations from each of the six task forces. (Note: The draft made available last month by the Washington Post was not the full report, but only the recommendations of the task force on reform of the faith-based office. See prior posting.)

Britain's Supreme Court Denies Christian Marriage Registrar Permission To Appeal

According to Pink News, the Supreme Court of the United Kingdom on Monday refused permission to appeal the decision in Ladele v. London Borough of Islington. In the case the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing on religious grounds to register same-sex civil partnerships. (See prior posting.) The Supreme Court said the case did not raise legal issues of "general public importance." Ladele is now considering whether to take her case to the European Court of Human Rights.

Court Rejects Religious Defense To Marijuana Use

In Georgetown, Colorado, a state court judge has rejected Trevor Douglas' free exercise claims and has found him guilty of possessing marijuana and drug paraphernalia, as well as driving an unregistered vehicle. He was assessed a $450 fine and ordered to perform 15 hours of community service. AP reported yesterday that the court found Douglas' beliefs do not rise to the level of a religion. Denver Channel 7 News says that Douglas is a member of the THC (The Hawaii Cannabis) Ministry and the Church of Universal Sacraments. Douglas says: "The religious use of cannabis is mandated by my god, just as wine and bread are used by Christians or peyote used by Indians." He plans to appeal his conviction.

Suit Argues Letter Cursing Police Officer Was Protected Religious Speech

A federal lawsuit filed on Monday claims that Pennsylvania state police and the police department of Media Borough (PA) have a practice of unlawfully prosecuting citizens for protected speech using Pennsylvania’s terroristic threats, harassment, and disorderly conduct statutes. The complaint (full text) in Damato v. Commonwealth of Pennsylvania, (ED PA, file 3/8/2010), contains these interesting allegations:

On October 11, 2008, the Plaintiff received a traffic citation issued by Officer Matthew Bellucci, of the Media Borough Police Department. Thereafter, on October 18, 2008, Officer Bellucci received a letter at his home stating the following: "You will get what's coming to you. God is just, and you will be punished. Fuck you! You are an asshole! A fucking asshole!"

... On or about October 24, 2008 Trooper Gerard B. McShea prepared a sworn Affidavit of Probable Cause causing a criminal summons to be issued against Plaintiff, charging Plaintiff of the crimes of Terroristic Threats, 18 Pa.C.S.A. §2706(a)(1) and Harassment, 18 Pa.C.S.A. §2709(a)(1) and 18 Pa.C.S.A. §2709(a)(6) as a result of mailing the aforementioned letter....

The communication directed to Officer Bellucci was expressing a religious opinion that "You will get what is coming to you. God is just and you will be punished." Such opinion is not a threat, but rather protected religious speech identifying God’s righteousness and willingness to punish.

Plaintiff asks for a declaratory judgment, damages and lawyer's fees. Yesterday's Delaware County (PA) Daily Times reports on the filing of the lawsuit.

6th Circuit: Parochial School Teacher of Secular Subjects Covered By ADA

In EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, (6th Cir., March 9, 2010), the U.S. 6th Circuit Court of Appeals held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. They are not "ministerial employees" who are excepted from coverage. Only teachers who teach primarily religious subjects or who have a central role in the spiritual or pastoral mission of the church are covered by the ministerial exception. The fact that plaintiff led some religious activities during the day, and that she had the title of commissioned minister do not make her primary duties religious in nature. [Thanks to both Steven H. Sholk and Derek Gaubatz for the lead.]

Final Faith-Based Advisory Council Report Submitted To White House

Yesterday, President Obama's Advisory Council on Faith-Based and Neighborhood Partnerships presented its final report to administration officials. According to IPA:

Over the course of the day, the Council presented its recommendations in key policy areas to senior officials who deal with each of those areas, including: Secretary of Health & Human Services Kathleen Sebelius, USAID Director Raj Shah, White House Domestics Policy Director Melody Barnes, National Security Council Chief of Staff Denis McDonough, and EPA Director Lisa Jackson.

The group concluded the day in a meeting with President Obama who appreciated the Council members’ service and hard work in forging common ground across religious, political and philosophical lines.

The text of one task force report was released in advance last month,[corrected] (see prior posting), as was information on two issues on which the Advisory Council was divided-- whether religious symbols can be present in areas where government-funded programs are offered and whether churches need to form separate corporations to receive federal social service funds (see prior posting). Council Member Melissa Rogers writes at length on the report in yesterday's Washington Post. Meanwhile a coalition of 26 religious and civil rights groups-- the Coalition Against Religious Discrimination-- wrote the President recommending that he adopt the consensus recommendations on reform of the Faith-Based Office, that religious-based hiring in federally funded social service programs be prohibited, and that houses of worship be required to create separate corporations if they seek to provide secular government funded social services.

Pennsylvania Woman Indicted In Conspiracy To Kill Muhammad Cartoonist

According to the New York Times, yesterday federal prosecutors unsealed an indictment (full text) against a Pennsylvania woman who was charged with conspiracy in a plot to kill Swedish cartoonist Lars Vilks. An Al Qaeda linked group placed a $100,000 bounty on Vilks because of his cartoon of the prophet Muhammad atop the body of a dog. (See prior postings 1, 2 .) The woman who is charged is Colleen LaRose, an American from suburban Philadelphia who is also known as "Fatima LaRose" and as "Jihad Jane." According to a Department of Justice press release, LaRose used the Internet to recruit others to wage and support violent Jihad in South Asia and Europe. She apparently traveled to Europe after being ordered to kill cartoonist Vilks in a way that would frighten "the whole Kufar [non-believer] world." LaRose was arrested in October, but the indictment was kept under seal until yesterday when seven Muslims who are charged with being part of the same plot against Vilks were arrested in Ireland. (Pakistan Daily Times.)

UPDATE: AP reports that after the arrests in Ireland, three Swedish newspapers on Wednesday reprinted the Lars Vilks cartoon as part of their coverage of the story.

UPDATE2: The Wall Street Journal reported that on Saturday evening (3/13), Irish authorities released (without filing charges) 4 of the 7 (one man and three women) who they had arrested.

Catholic Church Targets Philippine Health Chief Over Condom Campaign

Yesterday's Washington Post reports that the Catholic Church in the Philippines is calling for the resignation of Health Secretary Esperanza Cabral. The Church, a powerful force in the country, is angry over the condom distribution campaign instituted by the Harvard-trained health chief. As part of the country's fight against AIDS, on Valentine's Day government health workers passed out roses and condoms on the streets of Manila. Bishop Nereo Odchimar, president of the Catholic Bishops' Conference of the Philippines, calling for fidelity and premarital chastity, said: "The condom business is a multimillion dollar industry that heavily targets the adolescent market at the expense of morality and family life." The Health Department promotes a 3-part "ABC formula": abstinence, be faithful and use a condom.

Dispute Over Fire Department Chaplain's Web Page

In Spring Hill, Florida, resident Ken Fagan has filed a complaint with the Department of Community Affairs objecting to a link on the Spring Hill fire district's website. According to My Fox Tampa Bay yesterday, Fagan objects to a link to the Fire Rescue Chaplain's web page that contains scriptural quotes and in turn links to a site offering Bibles for sale. Fagan argues that a tax supported website should not have links to religious groups or support religion. In response, the chaplain, known as Pastor Jack, has added a statement on his web page that reads in part: "I have always intended this to honor all of our citizens, our firefighters, and the wonderful principles of our Constitution. All faiths have been blessed in America to the equal right of expression. Our founding fathers showed themselves wise beyond their years. Please know I respect all faiths, and all citizens and wish only to present a page that provides help and useful information to all who choose to look at it."

Christian Group Presses Pray for a Liberal Campaign

Beliefnet yesterday reported on last month's "Adopt a Liberal" Deck of Cards initiative begun by Liberty Counsel. The deck contains 51cards picturing "liberals" with one card carrying a question mark for the "unknown liberal." The program asks participants "to pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation’s culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying." The liberals pictured on the cards include not only politicians and public officials, but also movie and television stars and news commentators. Liberty Counsel also has produced a bumper sticker reading: "Have you prayed for a liberal today?"

Parents Who Relied on Prayer To Heal Son Sentenced to 16 Months For Negligent Homicide

The Oregonian reports that an Oregon state judge yesterday sentenced Jeffrey and Marci Beagley to 16 months in prison, followed by 3 years probation, after their conviction last month for the criminally negligent homicide of their 16 year old son. The Beagley's, members of the Followers of Christ Church that rejects medical care, prayed for their son rather than seeking medical attention for his urinary tract obstruction. (See prior posting.) Clackamas County Circuit Court Judge Steven Maurer gave a long explanation of his sentencing, saying that too many children had died because of the Followers of Christ Church's beliefs. He said, "It needs to stop." He said that even though the Beagleys "are good people," the magnitude of their crime calls for a prison sentence.

Muslim-Christian Ethnic Massacre In Nigeria Kills 378 Christians

In four Nigerian villages on Sunday, at least 378 members of the Christian Berom ethnic group were killed by members of the Muslim Fulanis. The massacres took place in Zot, Dogo Nahawa, Rastat and Shen. The Wall Street Journal, the London Times and BBC News all report on the massacres. The attackers came at night, fired shots to scare residents out of their homes, and then hacked them with machetes as they rushed out. Some residents were caught in animal traps and fishing nets as they tried to escape, and then hacked to death. Other houses were set on fire with residents in them. Apparently the killings, in villages near the city of Jos, were in revenge for killings in January. (See prior posting.) Survivors reported that Muslims in three of the villages had received phone calls two days before the massacres warning them to leave the area. A BBC analysts says: "These killings are often painted by local politicians as a religious or sectarian conflict. In fact it is a struggle between ethnic groups for fertile land and resources in the region known as Nigeria's Middle Belt."

Supreme Court Grants Cert. In Westboro Baptist Church Funeral Picketing Case

The U.S. Supreme Court this morning granted certiorari in Snyder v. Phelps, (Docket No. 09-751, March 8, 2010). (Order List.) In the case in which review has been granted, the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder violated their free speech rights. Westboro members have gained notoriety for their picketing of veterans' funerals carrying signs attacking America's acceptance of gays. In the case, Snyder's father claimed that the picketing and a related Internet posting amounted to an invasion of privacy and intentional infliction of emotional distress. The majority held that defendants' picket signs, while "utterly distasteful," nevertheless involve matters of public concern. The 4th Circuit also held that the signs and Internet postings were merely "imaginative and hyperbolic rhetoric intended to spark debate," and could not be interpreted as verifiable facts about Snyder or his son. (See prior posting.)

UPDATE: Here is the petition for certiorari and the brief in opposition (thanks to SCOTUS blog).

Speculation Surrounds Mixed-Faith Wedding Ceremony for Chelsea Clinton

AP last week reported on the questions surrounding arrangements for the upcoming wedding of Chelsea Clinton, daughter of the former President Bill Clinton and of the current Secretary of State Hillary Clinton. In particular, papers are speculating on whether her wedding will be performed by a rabbi since her fiance, Marc Mezvinsky, is Jewish. Chelsea grew up attending a Methodist church with her mother. Many rabbis will not officiate at a mixed-faith ceremony, but some will. The United Methodist Church leaves the question of mixed-faith ceremonies to local pastors and allows ministers to adapt the wedding ceremony to some extent in such cases.

School Guidance Director Sues, Claiming Animus From Orthodox Jewish Board Members

In Lawrence, New York, the school district's guidance director who was denied tenure filed a lawsuit charging that his dismissal stems from the ongoing tension between Orthodox Jews who took control of the Lawrence school board in 2006 and the community's non-Orthodox residents. (See prior posting.) According to Sunday's Newsday, Jay Silverstein (a Duke-educated psychologist) says he was advised by his superintendent that he would be more likely to get tenure if he became friendlier with board members and with a fellow administrator who was said to be Orthodox and influential. Silverstein, who plans to run for the school board in May, is Jewish, but non-practicing. Co-workers praise Silverstein's job performance, but school board president Murray Forman called Silverstein's action "another frivolous lawsuit." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Christian Behrendt, State Norms and Religious Norms: Summary Reflections on Some of their Characteristics (Règles Étatiques Et Règles Religieuses: Brèves Réflexions Sur Certaines De Leurs Caractéristiques), (Revue de la Faculté de droit de l'Université de Liège, pp. 287-294, 2009).
• Nathan B. Oman, Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism, (William & Mary Law School Research Paper No. 09-43, Feb. 26, 2010).
• Jill I. Goldenziel, Sanctioning Faith: Religion, State, and U.S.-Cuban Relations, (Journal of Law and Politics, Vol. 25, p. 179, 2009).
• Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, (GWU Legal Studies Research Paper, March 1, 2010).
• Gregory K, Acquaviva & John D. Castiglione, Judicial Diversity on State Supreme Courts, (Seton Hall Law Review, Vol. 39, No. 4, pp. 1203-1261, 2009).
• Gabriel Hallevy, Culture Crimes Against Women, (February 15, 2010).
• Mark Kende, Free Exercise of Religion: A Pragmatic and Comparative Assessment, (University of South Dakota Law Review, Forthcoming).
• Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, (Lewis & Clark Law Review, Vol. 14, p. 157, 2010.
• Tom Tyler, Stephen J. Schulhofer & Azuz Z. Huq, Legitimacy and Deterrence Effects in Counter-Terrorism Policing: A Study of Muslim Americans, (Law and Society Review, Forthcoming).

New Book:

• Douglas Laycock, Religious Liberty, Volume 1: Overviews and History, (Eedrmans, 2010).

Report Says Scientology Staff Members Are Treated Abusively

This morning's New York Times carries a front-page article on allegations by two former staff members of the Church of Scientology regarding abuse of staff mebers. Reporting on charges by Chris and Christie Colbran, who were recruited as teenagers to work for the elite corps of staff members known as Sea Org, the Times says:

They signed a contract for a billion years — in keeping with the church's belief that Scientologists are immortal. They worked seven days a week, often on little sleep, for sporadic paychecks of $50 a week, at most.

But after 13 years and growing disillusionment, the Collbrans decided to leave the Sea Org, setting off on a Kafkaesque journey that they said required them to sign false confessions about their personal lives and their work, pay the church thousands of dollars it said they owed for courses and counseling, and accept the consequences as their parents, siblings and friends who are church members cut off all communication with them.

Recent Prisoner Free Exercise Cases

In Camacho v. Shields, 2010 U.S. App. LEXIS 4489 (9th Cir., March 3, 2010), the 9th Circuit upheld a lower court's finding that a prisoner's religious exercise was not substantially burdened by the interruption of his prayers on one occasion.

In Witcher v. Maclunny, 2010 U.S. Dist. LEXIS 17382 (MD PA, Feb. 26, 2010), a Pennsylvania federal district court dismissed a prisoner's complaint regarding the removal of 25 religious books, finding that plaintiff failed to allege how this substantially burdened his ability to observe a central religious belief or practice.

In Brown v. Ray, 2010 U.S. Dist. LEXIS 17363 (WD VA, Feb. 26, 2010), a Virginia federal magistrate judge dismissed on qualified immunity grounds the damage claim, but not the claim for injunctive relief, brought by a Nation of Islam inmate who alleged that he is being denied his weekly NOI newspaper, The Final Call. It also dismissed certain other related claims for failure to exhaust administrative remedies, but permitted others to proceed.

In Banks v. Dougherty, 2010 U.S. Dist. LEXIS 17443 (ND IL, Feb. 26, 2010), an Illinois federal district court dismissed on mootness and sovereign immunity grounds claims by Muslims confined in a state mental health facility that the facility did not offer Friday Jumu'ah services.

In Butts v. Riley, 2010 U.S. Dist. LEXIS 17517 (WD MI, Feb. 26, 2010), a Michigan federal district court upheld a prison's refusal, for lack of sincere religious belief, to furnish plaintiff a kosher diet.

In Chappell v. Helder, 2010 U.S. Dist. LEXIS 18056 (WD AK, March 1, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 125391, Dec. 14, 2009), and ordered the Washington County Detention Center to revise its policies on religious presentations and use of reading materials during lockout periods. It also awarded nominal damages. Plaintiff complained that he was forced to overhear religious presentations being given in the day room during lockout periods and that the only religious reading material inmates were allowed to have during lockout was the Bible.

In Hundal v. Salazar, 2010 U.S. Dist. LEXIS 18837 (CD CA, March 3, 2010), a California federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125479, Dec. 16, 2009) and held that a Sikh prisoner can file an amended complaint against certain defendants alleging RLUIPA violations in refusing to permit him to wear a beard. However it dismissed his Free Exercise and Equal Protection claims and his RLUIPA claim against one defendant.

In LaRue v. Matheney , (SD WV, March 4, 2010), a West Virginia federal district court rejected a free exercise claim by a prisoner who had agreed to participate in the institution's treatment program. Plaintiff signed an Individual Therapy Contract obligating him to participate in treatment sessions and to refrain from certain conduct relating to children and to sexual matters. He now claims that his inability to keep pornography in his cell violates his beliefs as a member of the Christian Prurient Faith, a ministry which he founded. The court held that the burden with which he challenges was imposed on him because of a valid contract which he voluntarily entered.

In Peterman v. Berry, (ED WI, Feb. 26, 2010), a Wisconsin federal district court rejected complaints from a Muslim inmate that he was not provided a Halal diet, he was not allowed to order various religious items, there was no Muslim group worship, and he was required to purchase a Q'uran while Bibles were given out for free. The court found that the jail attempted to accommodate plaintiff's requests and that any failure to do so was not the result of any official policy or custom of the jail.

Hasidic Charity Can Claim Return of Seized Funds Only In Criminal Case

Friday's New Jersey Law Journal reports that a federal magistrate judge has ruled that a Hasidic Jewish charity cannot rely on 18 USC Sec. 983 to obtain a return of funds seized as part of a high profile public corruption and money laundering case. (See prior posting.) The court held that Gmach Shefa Chaim has an adequate remedy in a criminal case in which the government is suing for forfeiture of the $508,925 in the account. The court ruled that Sec. 983 only applies only to nonjudicial civil forfeitures of $500,000 or less and not to funds seized under a search warrant. [Thanks to Steven H. Sholk for the lead.]