8th Circuit Holds Temp Agency Could Enforce No-Headwear Rule of Employer

In EEOC v. Kelly Services, Inc., (8th Cir., March 25, 2010), the 8th Circuit rejected charges that Kelly, a temp agency, discriminated against Asthma Suliman, a Muslim woman, when it refused to refer her to a job at a printing plant because she insisted on wearing a khimar. The employer, Nathan Printing, prohibited wearing of loose clothing or headwear because of the danger that it could become tangled in printing machinery. According to the court, the EEOC failed to prove that there was an available position at the printing plant to which Kelly could have referred Suliman. Even if there was, Kelly showed a legitimate, non-discriminatory reason for failing to refer Suliman. Title VII does not require that an employment agency being sued for religious discrimination also prove that the employer to which it would be referring a worker would suffer an undue hardship if it were to accommodate the worker's religious needs. [Thanks to Steven H. Sholk for the lead.]

California Supreme Court Rejects Krsihna Challenge To Airport Anti-Solicitation Ordinance

In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (CA Sup. Ct., March 25, 2010), the California Supreme Court concluded that a city ordinance prohibiting individuals from soliciting funds at Los Angeles International Airport is a reasonable time, place and manner restriction that does not violate the California constitution. In so holding, the majority also refused to answer a question referred to it by the 9th Circuit-- whether the airport is a public forum. (See prior posting.) The long-running case involves activity by Krishna adherents to practice sankirtan-- approaching people in public to proselytize, solicit donations, sell and distribute literature and disseminate information. Two concurring opinions reached the public forum issue, but came out on opposite sides of it.

EEOC Sues Lowes For Failing To Accommodate Sunday Sabbath Observer

The EEOC announced earlier this week that it has filed suit against Lowe's Home Centers alleging that Lowe's failed to accommodate the needs of a Baptist employee who had religious objections to working on Sundays. The suit seeks to have the employee (now on part-time status) reinstated as a full time employee with accommodations for his religious beliefs. It also asks for back pay and damages, and an injunction requiring Lowe's to provide reasonable accommodation for sincerely held religious beliefs.

Claim By Hasidic Jews That Challenge To Zoning Was Pretext For Discrimination Is Dismissed

Mosdos Chofets Chaim, Inc. v. Village of Wesley Hills, (SD NY, March 31, 2010), is the latest in a series of legal maneuvers involving tension between several New York villages and the Orthodox and Hasidic Jewish families moving in increasing numbers to Ramapo (NY) and areas around it in Rockland County. In prior cases, plaintiffs claimed that discriminatory zoning by villages were an attempt to exclude Orthodox and Hasidic Jews. This suit grows out of an alleged attempt by several nearby villages to block a proposed revision in Ramapo's zoning law that was designed to accommodate the need of the Orthodox and Hasidic community.

In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes. In the current lawsuit, Orthodox and Hasidic plaintiffs claim that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. The court concluded that the Noerr-Pennington doctrine and the First Amendment right to petition bar plaintiffs from maintaining a civil rights action against defendants when defendants merely petitioned the courts. However the lawsuit was dismissed without prejudice giving plaintiffs an opportunity to refile to seek to defeat defendants' qualified immunity.

Gospel Tracts In Form of $1M Bills Do Not Violate Counterfeiting Laws

Darrel Rundus' Great News Network is a Christian evangelizing organization. Its most successful Gospel tract is one made to look like U.S. currency in the form of a $1 million dollar bill (a denomination of currency not issued by the United States). On the reverse of the bill is an inscription that includes: "The million dollar question. Will you go to heaven!" In Rundus v. United States, (ND TX, March 30, 2010), a Texas federal district court held that the Gospel tract does not violate U.S. counterfeiting laws (18 USC 474 and 475) because it neither poses a risk of fraud nor does it pose a risk of facilitating would-be counterfeiters. The court went on to hold that Secret Service agents violated the 4th Amendment in 2006 by seizing the million dollar bills from GNN's offices without a warrant or valid consent. It ordered return of the seized property. Liberty Counsel yesterday issued a press release announcing the decision. (See prior related posting.)

Christian Counseling Student's Discrimination Claim Survives Motions To Dismiss

In Ward v. Members of the Board of Control of Eastern Michigan University, 2010 U.S. Dist. LEXIS 27861 (ED MI, March 24, 2010), a Michigan federal district court denied defendants' motions to dismiss a lawsuit brought by a graduate student in Eastern Michigan University's counseling program who was dismissed from the program after, in a Practicum, she refused to counsel a client on a homosexual relationship. The lawsuit alleges that plaintiff's expression and free exercise rights, as well as her due process and equal protection rights, were infringed because of disagreement with her Christian beliefs regarding homosexuality.

Israel's Supreme Court Says Muslim Prisoners Not Entitled To Bread During Passover

According to YNet News, last week a 3-judge panel of Israel's Supreme Court ruled that the government is not obligated to serve Muslim prison inmates fresh bread during Passover. In a 2-1 decision, the court ruled that for both practical and religious reasons, serving of leavened products in prison facilities where both Jewish and Arab prisoners live together is not required during Passover. In facilities housing only Arab prisoners, inmates are furnished leavened products ahead of Passover which they can use all week. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Cert. Filed In School's Ban of Religious Music In Holiday Concerts

On Monday, a petition for certiorari (full text) was filed in Stratechuck v. Board of Education, South Orange- Maplewood School District. In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) A press release on the filing was issued by the Thomas More Law Center.

Lawsuit Challenges Health Care Bill on Free Exercise Grounds

Last week, moments after President Obama signed the health care reform bill, the Thomas More Law Center filed suit on behalf of itself and four individuals challenging the constitutionality of the new law on a number of grounds including a claim that it violates plaintiffs' free exercise rights. (Press release.) The complaint (full text) in Thomas More Law Center v. Obama, (ED MI, filed 3/23/2010) alleges in part that plaintiffs are:

being forced to contribute to the funding of abortion, which, according to their deeply held religious beliefs and convictions, is a grave moral disorder since it is the deliberate killing of an innocent human being....

According to the teaching of the Catholic Church, abortion is a crime which no
human law can legitimize. Consequently, there is no obligation in conscience to obey such a law; instead, there is a grave and clear obligation to oppose such laws by conscientious objection.

Catholic Church Challenges Baltimore Ordinance Regulating Pregnancy Counseling Centers

According to the Baltimore (MD) Sun, the Archdiocese of Baltimore has filed a federal lawsuit challenging the constitutionality of a Baltimore ordinance that requires pregnancy counseling centers to post signs (in English and Spanish) informing clients that they do not refer women for abortion or birth control. Proponents of the law say it assures that women have accurate health information. The lawsuit claims that the law violates First Amendment expression and religion rights of church members.

NY High Court: Hate Crime Law Can Apply To Property Offenses

In People v. Assi, (NY Ct. App., March 30, 2010), New York's high court held that New York's Hate Crimes Act of 2000 can cover religiously-motivated property crimes, as well as crimes against persons. Defendant in the case admitted to attempting to fire bomb a synagogue to protest the shooting of a Palestinian child by the Israeli Army. Today's Riverdale Press reports on the decision.

Subsidized Housing Project Attacked on Establishment Clause Grounds

The Washington Post last week reported that opposition to a government subsidized affordable housing project in Arlington County, Virginia has turned into a church-state argument. To find space for housing near the suburban D.C Metro station, the county will pay subsidies to a developer who will build apartments over the First Baptist Church of Clarendon. A non-profit group bought air rights over the church last year. A new sanctuary will also be constructed, and the church and housing project will share an entrance, lobby and elevator. Opponents argue that the subsidies are really a way to bail out a church that is in financial difficulty. A federal district court will hear arguments tomorrow on a motion to dismiss the complaint that alleges Establishment Clause violations. [Thanks to Robert Tuttle for the lead.]

Taxpayers Have Standing To Challenge TVPA Grant To Catholic Bishops

In ACLU of Massachusetts v. Sebelius, (D MA, March 22, 2010), a Massachusetts federal district court held that taxpayers have standing to challenge a grant to the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. USCCP made grants to subcontractors, and specified in all of them that no referrals could be made for abortion services of contraceptive materials. In finding standing, the court said:

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB....

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

10th Circuit: No State RFRA Claim For Objectionable Autopsy

In Ross v. Board of Regents of the University of New Mexico, (10th Cir., March 23, 2010), the 10th Circuit Court of Appeals refused to permit family members to sue under New Mexico’s Religious Freedom Restoration Act challenging an autopsy performed on a San Carlos Apache man that allegedly violate his religious beliefs. The court concluded that decedent did not engage in an "act or refusal to act" that was substantially motivated by religious belief. Thus New Mexico RFRA's protection of free exercise of religion was not implicated. The court also rejected various other challenges to the autopsy

Supreme Court Denies Cert. In Religious Music Case Over Alito Dissent

Last week, the U.S. Supreme Court denied certiorari in Nurre v. Whitehead, (Docket No. 09-671, March 22, 2010). In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 ruling, held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. (See prior posting.) Justice Alito filed a rare dissent to the denial of review. He argued:

A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present because of the importance of theevent for the participating students. A decision with such potentially broad and troubling implications merits our review.

National Law Journal reported on the cert. denial.

Obama Announces Recess Appointments To EEOC

Last Saturday, the White House announced it intent to make 15 recess appointments to high level government positions. The nominations are currently stalled in the Senate. Four of the 15 are for the Equal Employment Opportunity Commission: Jacqueline A. Berrien for EEOC Chair; Chai R. Feldblum for EEOC Commissioner; Victoria A. Lipnic for EEOC Commissioner; and P. David Lopez for General Counsel of the EEOC. As recess appointees, these individuals will hold office until the end of the Senate's session in 2011. (CRS background.) However their names will remain before the Senate for confirmation for the full terms of their offices. The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

Recent Prisoner Free Exercise Cases

In Clark v. Small, 2010 U.S. Dist. LEXIS 23731 (SD CA, March 15, 2010), a California federal district court permitted an inmate to proceed with his claim that he was not permitted to celebrate Ramadan, but dismissed his equal protection and due process challenges.

In Hartmann v. California Department of Corrections and Rehabilitation, 2010 U.S. Dist. LEXIS 23848 (ED CA, March 15, 2010), a California federal magistrate judge concluded that inmates failed to state a claim against the California State Personnel Board in connection with their complaint that no Wiccan prison chaplains were hired for their facility.

In Jackson v. Boucaud, 2010 U.S. Dist. LEXIS 23760 (SD GA, March 15, 2010), a Georgia federal district court accepted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125893, Dec. 31, 2009) and dismissed an inmate's claims that his rights were infringed when he was not permitted to borrow in inter-library loan a copy of The Bible Code. He failed to allege how denial of the book infringed his sincerely held religious beliefs.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 23898 (WD VA, March 16, 2010), a Virginia federal magistrate judge permitted an inmate to proceed with challenges under RLUIPA and the due process clause to confiscation of religious materials of the Nation of Gods and Earths (also known as the Five Percent Nation of Islam).

In Boles v. Newth, 2009 U.S. Dist. LEXIS 126028 (D CO, Nov. 13, 2009), a Colorado federal magistrate judge concluded that damage to an inmate's religious objects and religious books did not create a meaningful burden on his practice of religion.

In Borzych v. Frank, 2010 U.S. Dist. LEXIS 25194 (WD WI, March 17, 2010), a Wisconsin federal district judge rejected an inmate's claim that his First and Fourteenth Amendment rights, and his rights under RLUIPA, were violated by a prison policy that prohibits practitioners of Odinism from having runes.

In McChesney v. Hogan, 2010 U.S. Dist. LEXIS 25717 (ND NY, March 18, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25705, Feb. 26, 2010), and permitted a civilly committed offender who is an atheist,to proceed on a claim for injunctive relief, but not for damages, on his complaint that material used in the sexual offender treatment program were premised on religious principles.

In Damron v. Sims, 2010 U.S. Dist. LEXIS 25166 (SD OH, March 17, 2010), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25158, Jan. 27, 2010) and dismissed claims by prisoners who were Christian Separatists that they have been denied in various ways the free exercise of their religion. The court held that plaintiffs pointed only to general policies and failed to allege particular instances in which their rights were infringed.

In Brown v. Michigan Department of Corrections, 2010 U.S. Dist. LEXIS 25396 (ED MI, March 18, 2010), a Michigan federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 126067, Oct. 28, 2009) and rejected both on statute of limitations grounds and on the merits an inmate's argument that his free exercise rights were violated when he was not permitted to talk about his religious beliefs during the Assaultive Offender Program.

In Anderson v. Craven, 2010 U.S. Dist. LEXIS 25140 (D ID, March 16, 2010), an Idaho federal district court refused to dismiss an inmate's claim that his rights were violated when, as a condition of parole, he was forced to attend the Therapeutic Community program which, allegedly, is religion based.

In Funzie v. Little, 2010 U.S. Dist. LEXIS 25771 (MD TN, March 18, 2010, a Tennessee federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 25768, Jan. 12, 2010) and dismissed plaintiff's objections to the seizure and screening of his religious materials by the security threat group.

Church Claims It Was Misled Into Not Applying For Tax Exemption

Knox News yesterday reported that a church in Knoxville, Tennessee is making an unusual argument in an attempt to avoid $53,000 in back taxes that it did not realize it owed. Tennessee law gives a church three years to apply for a property tax exemption when it replaces its previously exempt property with new property. New Covenant Baptist Church bought new property and began to occupy it as a church in 2005. It thought its previous property was exempt since it never received a tax bill. However in fact the county wrongly omitted its previous property from the tax rolls because the church had never properly applied for an exemption. In In re New Covenant Baptist Church, Inc., (TN Bd. Equal., Feb. 26, 2010), the Tennessee Board of Equalization concluded that the church was not entitled to the grace period for its new property because its previous property was not in fact exempt. In a letter to the Knox County Commission and a draft legal complaint, the church argues that the fault lies with the Knox County Tax Assessor who misled the Church into assuming that its prior property was exempt. The church obtained an exemption beginning Nov. 2006, but its taxes for the two prior years remain at issue.

Church Synod Sued After Ordering Changes In College's Board

According to last Thursday's Christian Post, one lawsuit has been dropped, but a second is still pending after the General Synod of the Associate Reformed Presbyterian Church removed the board of trustees and installed an interim board at Erskine College in Due West, South Carolina. Christianity Today last week reported on the March 3 meeting of the General Synod which acted on a March 2 Report of Moderator's Commission that recommended reducing the size of the college's Board from 34 (plus 23 advisory members) to 16. A Preliminary Report issued in February found numerous problems as the college searches for a new president. Among the findings were: "A significant majority of the professors interviewed had no understanding of how the Christian faith could be meaningfully integrated into their discipline."

All of this led to a lawsuit being filed against the General Synod by Scott Mitchell who is the chairman of both the old board that was removed and of the new interim board that was appointed. It alleged that the General Synod violated Erskine's charter and bylaws in the action it took. The court issued a temporary restraining order barring a change in the bylaws to reduce the size of the board. (Columbia (SC) The State.) However now at the direction of Erskine's executive committee, Mitchell has withdrawn his lawsuit. However a second lawsuit filed by the Alumni Association and three trustees is still pending.

UPDATE: On April 9, a state court judge issued a preliminary injunction in the Alumni Association's suit, freezing the status quo while the litigation is pending. (Erskine College Press Release.)

China Imposes New Financial Audit Rules On Religious Institutions

According to AsiaNews.it last week, China's State Religious Affairs Administration has issued new rules requiring all religious institutions to file audited annual financial reports. The agency said the rules are designed to help the government supervise finances and prevent embezzlement and misappropriation of funds from the country's 130,000 religious institutions. Religious organizations are seen as public institutions under Chinese law.