Recent Prisoner Free Exercise Cases

In Munson v. Norris, (8th Cir., May 3, 2010), the 8th Circuit Court of Appeals affirmed a trial court's instructions to the jury on the elements of an Establishment Clause claim by a paroled prisoner who exhibited sexual deviancy. Plaintiff claimed he was forced to recite a prayer at the end of 12-step meetings that were part of his parole. Despite concern about the trial court's instruction that plaintiff had to show he was damaged, the court concluded that this did not rise to the level of plain error and affirmed the jury verdict that found no Establishment Clause violation.

In Smith v. Ludwick, 2010 U.S. Dist. LEXIS 42396 (ED MI, April 30, 2010), a Michigan federal district court dismissed an inmate's habeas corpus action in which he complained that he was denied the right to participate in the kosher meal program. Habeas is not available to challenge conditions of confinement, as opposed to the length or duration of a sentence.

In George v. Morgan, 2010 U.S. Dist. LEXIS 42667 (D DE, April 30, 2010), a Delaware federal district judge permitted an inmate to proceed with his claim that he was n ot allowed to attend chapel services or receive spiritual counseling. He also claimed that prison officials punished him for praying in his cell, telling him that talking to God is a sign of being crazy.

In Ramziddin v. Monmouth County Sheriff Department, 2010 U.S. Dist. LEXIS 42798 (D NJ, April 30, 2010), a New Jersey federal district court dismissed without prejudice a Muslim pre-trial detainee's clams that correctional officials violated his free exercise rights when they confiscated his prayer rug for security reasons, limited the areas in which he could wear his kufi, failed to serve meals that conform to his religious preferences, and forced him to pray in "awkward and unsanitary" conditions in the multi-purpose room or in cells.

In Ind v. Colorado Department of Corrections, 2010 U.S. Dist. LEXIS 43312 (D CO, March 23, 2010), a Colorado federal magistrate judge recommend that an inmate who followed a branch of the Christian Identity Movement be allowed to proceed with his RLUIPA claims for an injunction stemming from his allegations that he was denied the opportunity to take communion alone in his cell and was denied religious texts. It held that one of the defendants had qualified immunity as to damage claims.

In Greenfield v. Corzine, 2010 U.S. Dist. LEXIS 44433 (D NJ, May 6, 2010), a New Jersey federal district court held that a civil committee under the Sexually Violent Predator Act failed to allege sufficient facts to state a free exercise claim when he alleged only that he was denied the right to participate in religious services while he was in "map" for 60 days in 2006. Also the statute of limitations had run on the claim.

In Rouser v. White, 2010 U.S. Dist. LEXIS 44151 (ED CA, April 15, 2010), a California federal district court issued a preliminary injunction in a lawsuit filed by a Wiccan prisoner alleging various infringements of his rights under the free exercise clause and RLUIPA. The injunction required that prison officials allow plaintiff to keep and maintain religious texts (including but not limited to A Witches' Bible Compleat (the "Wiccan Bible"), that they allow him to obtain group Wiccan items before Wiccan group services; that they do not take or destroy plaintiff's religious articles; that plaintiff be provided a way to order and receive religious items; that officials announce Wiccan services to the same extent they announce services for the mainstream faiths; that plaintiff be allowed to access the outdoor, nature-based religious area when Wiccan services are scheduled; and that plaintiff be given access to the fire pit during religious services.

Court Rejects Constitutional Argument Against Limit On Child's Religious Exposure

A Chicago trial court judge has rejected constitutional arguments by law student Joseph Reyes who, in a widely publicized custody case, defied a court order that he not expose his daughter to any religion other than Judaism. (See prior posting.) Reyes argued that the order was unconstitutional because the order was too vague, and that the court cannot constitutionally determine what constitutes the Jewish religion. According to WGN News, on Friday the court ruled that Reyes must stand trial for contempt. Rejecting Reyes' arguments, the court said that it can properly adjudicate religious disputes in the best interest of the child. The final decree dissolving the couple's marriage eliminated the restriction on Reyes. (See prior posting.)

Arizona Eliminates Last Limits on Sunday Liquor Sales

The Verde (AZ) Independent reports that on Thursday Arizona Gov. Jan Brewer signed HB 2143 that eliminates the ban on early morning Sunday liquor sales. Church goers have been protected from liquor temptations by the ban on sales before 10:00 a.m. Now, when the new law takes effect at the end of July, liquor sales on Sunday will be no different than on other days-- beginning at 6:00 a.m.

Court Overrules Jewish Cemetery's Objections To Moving of Body

An Allegheny County, Pennsylvania court has overruled the objections of a Jewish cemetery and permitted the body of a man who died almost 45 years ago to be reburied elsewhere as requested by his family. Yesterday's Pittsburgh Post-Gazette reports on the dispute between the Orthodox Jewish Poale Zedeck cemetery and Howard Tobin's widow (recently deceased)and daughter, who want their husband and father moved to the Star of David section of Homewood Cemetery where Tobin's widow also bought plots for herself and their son who died in 2008. The cemetery's refusal is based on Jewish religious law that only allows bodies to be moved for limited reasons. The court said that the family's interest outweighs that of the cemetery.

Establishment Claim Against Charter School Proceeds, But Students May Not Intervene

In ACLU v. Tarek ibn Ziyad Academy, (D MN, May 7, 2010), a Minnesota federal district court refused to dismiss the ACLU's claim against individual board members of a charter school in a suit that alleged the school is in fact sectarian and promotes Islam in violation of the Establishment Clause. The court held that the complaint sets forth sufficient facts to state a claim aginst individual defendants, and that they do not have qualified immunity as to the claims. It held that the school itself is not immune from suit under the 11th Amendment because under Minnesota law school boards are treated as municipalities, not as an arm of the state. The court also allowed cross claims for indemnification against TiZA filed by its sponsor and the state Commissioner of Education to proceed.

Finally the court denied an application by ten TiZA students and four of their parents to intervene to protect the school's accommodation of their free exercise of religion. The court held that any injury to the students that might result from a settlement of the lawsuit by TiZA is too remote and speculative, and that any impairment of their rights might well be traceable to TiZA rather than plaintiffs. It also held that the students had delayed too long in filing a motion to intervene. However, the court granted the students permission to file an amicus brief in the case. The Minneapolis Star Tribune reported on the decision. (See prior related posting.)

Court Explains Continued Jurisdiction Over Santa Rosa Schools Consent Decree

In yet another installment in the attempt by teachers, parents and others to challenge a consent decree entered into by the Santa Rosa Florida school district to settle an Establishment Clause challenge to religious activities in the schools, a Florida federal district court this week issued a ruling "intended to memorialize the basis for the court's conclusion that it retains ancillary enforcement jurisdiction over the consent decree." A Christian teachers group seeking to intervene argued that the court lacked jurisdiction because the original plaintiffs had graduated high school, rendering the case moot. In Doe v. School Board for Santa Rosa County, 2010 U.S. Dist. LEXIS 44400 (ND FL, May 6, 2010), the court said: "The decree itself stands as a valid final order subject to this court's enforcement jurisdiction, regardless of the graduation status of the named plaintiffs." The ruling seems to undercut one of the arguments raised in a separate case filed two days earlier seeking to enjoin Santa Rosa school officials from enforcing the settlement. (See prior posting.)

NY Community Board Approves Plans For Mosque Near Ground Zero

In New York City, the Community Board of lower Manhattan voted unanimously Wednesday night to support a planned 15-story community center which will include a mosque two blocks away from ground zero. CNN reported Friday that the plans, which do not legally need Community Board approval, were drawn up by two groups devoted to promoting greater understanding of Muslims. Daisy Khan, executive director of the American Society for Muslim Advancement, said the project will celebrate pluralism in the U.S. and will help amplify the voices of the majority of Muslims who reject extremist ideologies. Relatives of 9/11 victims were divided on the project.

DC Circuit Dismisses Suit Challenging Past and Future Inaugural Prayers and Presidential Oath

Today in Newdow v. Roberts, (DC Cir., May 7, 2010), the Court of Appeals for the D.C. Circuit dismissed an Establishment Clause challenge to prayer and the use of "so help me God" in the oath at Presidential inauguration ceremonies. An opinion by Judge Brown, joined by Judge Ginsburg, held that the suit should be dismissed on mootness and standing grounds, while a concurring opinion by Judge Kavanaugh would have dismissed on the merits.

Judge Brown wrote that the challenge to religious expressions at President Obama's 2009 inauguration is moot. Plaintiffs failed to appeal the district court's denial of a preliminary injunction. (See prior posting.) Had they done so and had they won on appeal, that would have avoided mootness. As to their challenge in connection with the 2013 and 2017 inaugurations, plaintiffs are seeking relief against unknown parties over whom the court lacks jurisdiction. There is no assurance that those involved in planning the 2009 Inauguration will be involved in the future. And there is no way for plaintiffs to sue all possible future Presidents-elect. Therefore a declaratory judgment will not remedy the wrong being challenged and plaintiffs lack standing to pursue these claims.

Judge Kavanaugh concluded that plaintiffs have standing to challenge prayers and the oath for future inaugurations, but that neither violate the Establishment Clause. The prayers, in the forms they have been offered at inaugurations, should be permitted under the U.S. Supreme Court's decision in Mash v. Chambers upholding non-proselytizing legislative prayer. The words "so help me God" added to the Presidential oath should also be upheld as a long national tradition that is neither proselytizing nor exploitative. Judge Kavanaugh also used his opinion to explain his earlier vote to deny plaintiffs' motion for the court to eliminate at oral arguments in this case its usual call asking God to save the court and the country. (See prior posting.) [Thanks to Bob Ritter for the lead.]

North Carolina Diocese Settles Abuse Case For $1M

The Diocese of Charlotte, North Carolina has agreed to settle a priest sexual abuse case by paying the victim $1 million, as well as paying for counseling for him. Today's Charlotte Observer reports that the lawsuit involves abuse by Rev. Robert Yurgel when plaintiff was an altar boy in 1999 at Charlotte's St. Matthew Catholic Church . Yurgel last year was sentenced t0 8 years in prison.

Police Departments Cancel Security Webinar Over Charges of Anti-Muslim Bias

In Washington state, objection to alleged anti-Muslim bias of one of the sponsoring groups has led to cancellation of a planned April 29 web-based seminar on security technology for law enforcement officers. A press release yesterday from the Washington state chapter of the Council on American Islamic Relations reports that the Washington State Patrol and the Seattle Police Department withdrew from the program because of objections to involvement of Security Solutions International which CAIR says has "offered misinformation about Islamic history, promoted Muslim 'control' and 'take over' conspiracy theories, advocated profiling local Muslim communities, and smeared mainstream American Muslim organizations."

Appeal of Windermere Quiet Title Action Dismissed [Corrected]

Last week, a Missouri appellate court agreed with the Missouri Baptist Convention's unusual position that the appeal it filed in a case should be dismissed because the order it was appealing is not a final judgment. The decision is part of MBC's attempt to regain control of the Windermere Baptist Conference Center that, along with four other institutions, broke away from the Convention in a dispute over the fundamentalist stance of Convention leaders. After losing other attempts (see prior posting), the Conference brought a quiet title action, claiming fraud in the transfer of real estate to Windermere. The trial court dismissed the suit. In Atkins v. Jester, (MO App., April 30, 2010), the court of appeals held that the dismissal order was not properly certified for immediate appeal because the dismissal was without prejudice and was not implicitly a ruling on the merits. ABP yesterday reported on the decision. [Note: an earlier version of this posting incorrectly indicated that the decision was a defeat for MBC.]

"Year of Our Lord" Language Omitted In Jewish-American Heritage Proclamation

As previously reported, on April 30 President Obama issued a Proclamation declaring May to be Jewish American Heritage Month. The New Jersey Jewish News this week points out an interesting element of religious sensitivity in the Proclamation. The standard formula in reciting the date on which Presidential proclamations (and many other formal government documents) are signed would be: "In Witness Whereof, I have hereunto set my hand this thirtieth day of April, in the year of our Lord two thousand ten, and of the Independence of the United States of America the two hundred and thirty-fourth." However in the Jewish American Heritage Month proclamation, the words "in the year of our Lord" are omitted. [Thanks to Jack S. Levey for the lead.]

9th Circuit: Religious Group In Prison Is "State Actor"

In Florer v. Congregation Pidyon Shevuyim, (9th Cir., May 5, 2010), the 9th Circuit held that a Jewish organization which had contracted with the Washington Department of Corrections to provide Jewish religious services to prisoners acted under color of state law and not merely as a private party for purposes of a prisoner's RLUIPA claim. At issue was the denial of a prisoner's request for a kosher diet, a Jewish calendar, a Torah and consultation with a rabbi because the prisoner failed to complete a questionnaire that the organization would use to determine whether he was Jewish. The court, emphasizing the fact-specific nature of the inquiry, said:

Here, although Congregation's decision to limit Florer's access to religious materials may have had a religious component, that characteristic does not alter that Congregation's conduct was a direct delegation of the DOC's constitutional duty to provide appropriate access to religious materials. If Congregation had instead been sued for its performance of religious activities that the state could not conduct itself, such as delivering sermons or praying for healing, Congregation could not be held liable as a state actor because such religious conduct would lack "joint effort" between the state and Congregation.

Hawaii Group and Lt. Gov. Criticized Over Church-State and Gay Issues

A press release issued Monday by Hawai'i Citizens for the Separation of State and Church reports that last weekend's convention of Ohau County Democrats passed resolutions denouncing the group Transformation Hawai'i (now known as Hawai'i He'e Nalu) for supporting efforts in Uganda to criminalize homosexuality and "to 'establish' particular religious beliefs in Hawaii." The resolutions condemn Transformation Hawaii's affiliation with the International Transformation Network and the group's efforts "to transform Hawai'i into the first state that belongs to Jesus." The press release says that a number of Hawaii's politicians have been active supporter of Transformation Hawaii's, including Lt. Governor Duke Aiona who is a candidate for governor in this month's primary.

Yesterday's Honolulu Star Bulletin reports that both Lt. Gov. Aiona and Transformation Hawaii strongly deny the allegations. Aiona said: "These despicable attacks on my personal faith are politically motivated and intentionally deceitful. To insinuate any support at any time for the imprisonment of homosexuals is unconscionable." However his campaign says that while Aiona is not a member of Transformation Hawaii, he has participated in some of its activities in his personal capacity. Francis Oda, chairman of the Transformation Network's Global Council said the organization's mission in Uganda is to "end systemic poverty." According to another supporter of Transformation Hawaii, Honolulu city councilman Gary Okino, the group closed its Uganda office well before the anti-gay legislation was introduced in Uganda. He said the Democrat's resolution was inspired by Transformation's opposition to Hawaii's recent civil union legislation that is awaiting the governor's signature or veto. (CNN report on bill 4/30.)

New Costa Rican President Likely To Maintain Role of Catholic Church

CNS reported yesterday that Costa Rica's new President, Laura Chinchilla, who will be sworn in this week end, is likely to maintain traditional ties between the government and the Catholic Church. Article 75 of Costa Rica's Constitution provides: "The Roman Catholic and Apostolic Religion is the religion of the State, which contributes to its maintenance, without preventing the free exercise in the Republic of other forms of worship that are not opposed to universal morality or good customs. " Academics and human rights activists have urged that Costa Rica become a secular state. However, a month after her February election, Chinchilla created a commission to "stabilize the relationship between the next government and the Catholic Church." Officials of the Archdiocese of San Jose have proposed a new agreement to solidify the Catholic Church's presence in the country.

Suit Chalenges Use of Cathedral For High School Commencement

In Connecticut, the ACLU and Americans United have been objecting to several high schools' traditional use of Bloomfield, Connecticut's First Cathedral for their graduation ceremonies. (See prior posting.) One of the schools, Enfield High School, originally agreed to move this year's ceremony to school property, but after objections were raised by the Family Institute of Connecticut, the school board last month decided to move the ceremonies back to the Cathedral. Yesterday the ACLU filed suit on behalf of two Enfield students and three of their parents. The complaint (full text) in Does v. Enfield Public Schools, (D CT, filed 5/5/2010)alleges:

Holding a public-school graduation in such a religious environment violates the Establishment Clause ... : the location coerces students and parents to receive the overwhelming religious message of the Cathedral as the price of attending a seminal event in their lives; communicates a message of governmental favoritism of the Christian religion; entails the use of public funds to support religion-infused graduations; and excessively entangles the Schools with a religious institution. The practice also violates Article Seventh of the Connecticut Constitution, which provides that “no person shall by law be compelled to . . . support, nor be . . . associated with, any congregation, church or religious association.”

USA Today reports on the filing of the lawsuit.

French Lawmaker's Op-Ed Argues For Burqa Ban

Jean-Francois Cope, majority leader in the French National Assembly and the mayor of Meaux, writes an op-ed in today's New York Times explaining his support for a proposed ban in France on wearing the burqa or niqab in public. In a piece titled Tearing Away the Veil he argues:

The ban would apply to the full-body veil known as the burqa or niqab. This is not an article of clothing — it is a mask, a mask worn at all times, making identification or participation in economic and social life virtually impossible. This face covering poses a serious safety problem at a time when security cameras play an important role in the protection of public order....

[W]earing headgear that fully covers the face does not constitute a fundamental liberty. To the contrary, it is an insurmountable obstacle to the affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith. How can you establish a relationship with a person who, by hiding a smile or a glance — those universal signs of our common humanity — refuses to exist in the eyes of others?

Pastor's Conviction Reversed By Consent After Noise Ordinance Held Unconstitutional

Now that a federal district court has enjoined Phoenix, Arizona officials on constitutional grounds from enforcing the city's noise ordinance against church bells and carillons (see prior posting), an Arizona Superior Court vacated a municipal court's conviction of a Phoenix pastor. Bishop Rick Painter of Christ the King Cathedral, had been given a suspended sentence after he was convicted on two counts of violating the noise ordinance because of the hourly ringing of electronic church bells. (See prior posting.) In State of Arizona v. Painter, (AZ Super. Ct., May 3, 2010), an Order (full text) recites that the state did not object to defendant's motion that the court direct an order of acquittal. Alliance Defense Fund yesterday issued a release announcing the reversal of Painter's conviction.

Developments In Rubashkin Trials

Last week, a two-day sentencing hearing for Sholom Rubashkin, former executive at Agriprocessors, Inc.'s Iowa kosher meat packing plant, was concluded. It is expected that the federal court will hand down a sentence on the 86 counts of financial fraud later this month. (See prior related posting.) At the hearing, Rubashkin, an Orthodox Jew, told the judge that he had "faith in God that mercy and justice will be done." (Des Moines Register, 4/30). According to the WCF Courier (4/30), prosecutors asked for a 25-year sentence, not the effective life sentence that had been recommended in a controversial sentencing report filed earlier. Defense attorneys asked for no more than six years.

On Monday, Rubashkin was moved to a county jail for the beginning of his state trial on 83 misdemeanor child labor charges. However, according to yesterday's Des Moines Register, Rubashkin has not eaten since noon Monday because the food at the Black Hawk County jail does not meet his religious requirements for kosher food. The county sheriff agreed to meet with a rabbi to discuss Rubashkin's religious needs. Judge Nathan Callahan says he will not delay the trial, even if he has to proceed without Rubashkin being present.

AU Says High School Assemblies Violate Establishment Clause

In a press release yesterday, Americans United announced that it had written the Todd Becker Foundation complaining about the religious nature of programs the organization presents at high school assemblies. (Full text of letter.) While the programs are billed as events that focus on the dangers of drunk driving, AU charges that the programs are based on Bibilical themes and that following the program students individually are given a Bible and invited to accept Jesus. The letter says that under the Establishment Clause these programs are impermissible in public schools and can lead to liability on the part of the Foundation as a willful participant in joint action with the state. The Foundation lists over 100 schools in Nebraska and Kansas where it has presented assemblies.