Supreme Court Grants Cert. In RLUIPA Damages Case

The U.S. Supreme Court this morning granted certiorari in Sossamon v. Texas, (Docket No. 08-1438, cert. granted 5/24/2010). (Order List.) The suit was brought by an inmate who objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues do not give him access to Christian symbols or furnishings such as an altar or cross. The Supreme Court's grant of review was limited to the question of: "Whether an individual may sue a State or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc et seq. (2000 ed.)."

In the case, the 5th Circuit held (see prior posting) that official-capacity damage actions are barred by the state's sovereign immunity. Agreeing with the 4th Circuit, it concluded that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding. The 5th Circuit also held that damages under RLUIPA are not available in suits against officials in their individual capacities. It reasoned that because RLUIPA was enacted under Congress' Spending Clause Powers, only the governmental recipient of the grant may be liable for a violation. The Supreme Court did not grant cert. to review that port of the holding. SCOTUS blog has links to the petitions for and against cert. and amicus filings in the case.

Israeli Right Wingers Say They Will Protest Bar Mitzvah of Rahm Emanuel's Son

The Jerusalem Post reports that White House chief-of-staff Rahm Emanuel arrived in Israel on Friday. He has made the trip for a long-planned Bar Mitzvah of his son Zach and his nephew Noah. Plans had been to hold the ceremonies at Jerusalem's Western Wall over Memorial Day week end. CBS News reported last week, however, that two Israeli right wing politicians, Baruch Marzel and Itamar Ben-Gvir, who disagree strongly with President Obama's Israel policy and hold Emanuel responsible for it, plan to disrupt the event. They wrote to Emanuel: "We promise to accompany your son's bar mitzvah events in Israel, we will make sure to receive you as you deserve to be received ... with catcalls and disgust." They say they would be happy if Zach came alone to the Western Wall without his father, but that they have no choice but to demonstrate if his father is there also. In light of these developments, it is unclear now where the Bar Mitzvah ceremonies will be held.

Recent Articles of Interest

From SSRN:

• Ian S. Speir, Clemency in Jewish Law, (May 18, 2010).
• Ellen P. Aprill, An Overview of Tax Issues for Synagogues (and Other Religious Congregations), (Loyola-LA Legal Studies Paper No. 2010-24, May 19, 2010).
• Kristen Stilt, How is Islam the Solution?: Constitutional Visions of Contemporary Islamists, (Texas International Law Journal, Forthcoming).
• Jeff Redding, Dignity, Legal Pluralism, and Same-Sex Marriage, (Brooklyn Law Review , Vol. 75, 2010).
• Hussin Iza, Where is the Local Online? Internet Fatwa and the Making of New Muslim Spaces, (Western Political Science Association 2010 Annual Meeting Paper).
• Mohamad Mova Al 'Afghani, Religious Freedom in Indonesia Before and after Constitutional Amendments, (Critical Thinkers For Islamic Reform, Brainbow Press, 2009).
• Michael Young, In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights, (Ohio State Law Journal, Vol. 70, p. 1565, 2009).
• Aziz Z. Huq, Modeling Terrorist Radicalization, Duke Journal of Law and Social Change, Forthcoming).

From SmartCILP:

• Nancy D. Perkins, Form and Norm: The Transformative Potential of Sub-National Environmental Solidarity, 20 Fordham Environmental Law Review 469-514 (2010).

South Dakota Tea Party Candidate For Governor Presses For Religion, Church Endorsements

In South Dakota's June 8 primary, 5 candidates are competing for the Republican nomination for Governor. According to today's Argus Leader, the two with the most money behind them are Lt. Gov. Dennis Daugaard and Senate Majority Leader Dave Knudson. However they are being challenged by Tea Party candidate Gordon Howie, a state senator from Rapid City. His Pledge To South Dakota includes a promise that he "will not expel God from South Dakota." Earlier this month (press release), he issued a challenge to South Dakota churches and pastors to become politically active, saying: "Pastors and their congregations have been muzzled on Sunday mornings by the threat that their taxation status requires an enforced silence on who to vote for, and why." Today's Rapid City Journal reports that on May 15, Rev. H. Wayne Williams, pastor of Liberty Baptist Tabernacle in Rapid City, took up Howie's challenge by officially endorsing Howie for governor during a church service.

Recent Prisoner Free Exercise Cases

In Barhite v. Caruso, (6th Cir., May 14, 2010), the 6th Circuit rejected a prisoners free exercise and RLUIPA claims objecting to prison officials confiscating from him numerous photos of scantily clad young women. Plaintiff failed to allege that the photos were related to the practice of his Mormon religion. Instead he essentially alleged an equal protection discrimination claim, asserting that the photos were taken from him shortly after raids on an FLDS compound in Texas. However, he failed to allege that non-Mormon sex offenders were permitted to have similar photos.

In Burchett v. Bromps, (9th Cir., May 21, 2010), the 9th Circuit held that plaintiff should be permitted to amend his pleadings to pursue an Establishment Clause claim against the Washington state community corrections officer supervising the community-placement portion of his criminal sentence. Plaintiff alleged that the officer prohibited him from attending a Seventh Day Adventist Church and granted him permission to attend only an Assembly of God church.

In Robinson v. Delgado, 2010 U.S. Dist. LEXIS 47818 (ND CA, May 13, 2010), a California federal magistrate judge permitted an inmate who was a member of the House of Yahweh Yadhaim religion, to proceed with his claim that he should be permitted a kosher diet, and that the prison's vegetarian meals are not kosher.

In Perezo v. Williams, 2010 U.S. Dist. LEXIS 48248 (ND TX, May 17, 2010), a Texas federal court dismissed a frivolous an inmate's claim that his free exercise rights were violated because he is not permitted to take his Bible with him into the recreation yard for his one hour of recreation.

In Native American Council of Tribes v. Weber, 2010 U.S. Dist. LEXIS 48969 (D SD, May 18, 2010), a South Dakota federal district court held that plaintiff organization lacks standing to bring a suit under RLUIPA challenging the decision to remove tobacco from Native American ceremonies in the South Dakota State Penitentiary.

In Eichler v. Tilton, 2010 U.S. Dist. LEXIS 48623 (ED CA, April 21, 2010), a California federal magistrate judge held that an inmate needs to amend his complaint to clarify his claim that his religious rights are being infringed when prison officials refused to permit him to practice yoga.

In Gordon v. Caruso, 2010 U.S. Dist. LEXIS 49430 (WD MI, May 19,2010), a Michigan federal district court refused to dismiss claims by an inmate who was a member of the white-supremacist Asatru faith that his free exercise rights and his rights under RLUIPA were violated when officials prohibited Asatru group worship. Defendants had not shown that there were no less restrictive alternatives available to deal with officials' concerns.

In Sandeford v. Plummer, 2010 U.S. Dist. LEXIS 49315 (ND CA, April 26, 2010), a California federal district court refused to grant a prisoner's motion for reconsideration of the court's previous summary judgement against him (see prior posting) on his complaints of being denied an Islamic diet, of improper observances of Ramadan and Eid, denial of an imam for spiritual guidance and refusing to allow him to wear a Kufi prayer cap.

California Reacting To New Texas Textbook Changes

AP and Fox News report that last Monday, the California state Senate Appropriations Committee voted 6-3 (bill history) to approve and send S.B. 1451 on to the full state Senate. The bill is designed to prevent California from adopting textbooks that contain the controversial changes approved last week by the Texas State Board of Education. (See prior posting.) The bill would require that the California State Board of Education notify chairs of the Senate and Assembly education committees, as well as the state Secretary of Education, of textbook content that appears to be the result of the Texas changes. California Chronicle reports it is expected that the state Senate will pass the bill this week. Here are some of the legislative findings included in the latest version of the bill:

(h) Although not yet formally adopted, it is widely presumed that the proposed changes to Texas' social studies curriculum will have a national impact on textbook content since Texas is the second largest purchaser of textbooks in the United States, second only to California.

(i) As proposed, the revisions are a sharp departure from widely accepted historical teachings that are driven by an inappropriate ideological desire to influence academic content standards for children in public schools.

(j) The proposed changes in Texas, if adopted and subsequently reflected in textbooks nationwide, pose a serious threat to Sections 51204.5, 60040, 60041, 60043, and 60044 of the Education Code as well as a threat to the apolitical nature of public school governance and academic content standards in California.

Georgia Governor Signs New Disclosure Law On Kosher Foods

On Thursday, Georgia's governor, Sonny Purdue, signed into law H.B. 1345 which revises the state's provisions relating to the sale of kosher food. An ACLU press release reports on developments. Georgia's previous Kosher Food Labeling Act required that any food sold as kosher must meet "Orthodox Hebrew religious rules and requirements." Last August, the ACLU filed a lawsuit on behalf of a rabbi who wanted to certify food establishments as kosher using the standards of the Conservative Jewish movement. (See prior posting.) The new law will permit this. It requires that "a person who makes a representation regarding kosher food shall prominently and conspicuously display on the premises on which the food is sold, in a location readily visible to the consumer, a completed kosher food disclosure statement..." The disclosure statement requires 15 to 19 specific representations relating the foods sold. When unpackaged kosher food is involved, additional disclosures must be made regarding the identity and affiliations of the supervising rabbi or agency.

Court Says Challenge To Tax Code Parsonage Allowance Can Move Forward

In Freedom from Religion Foundation, Inc. v. Geithner, (ED CA, May 21, 2010), plaintiffs are challenging two provisions of the Internal Revenue Code on Establishment Clause grounds. Section 107 exempts from income the rental value of a parsonage, or the amount of a parsonage allowance, furnished to a member of the clergy as compensation for service performed in the exercise of a religious ministry. Section 265(a)(6) allows a member of the clergy to claim interest and property taxes as deductions, even though the money used to pay such amounts was received from a church in the form of a tax-exempt §107 allowance. (See prior posting.) In Friday's decision, a California federal district court, after finding that plaintiffs had standing to bring the lawsuit, allowed the challenge to Section 107 to proceed, but dismissed the challenge to Section 265(a)(6). The court also dismissed on 11th Amendment immunity grounds the claims under the California Constitution (but not the federal Establishment Clause claims) challenging California's parallel provisions.

The court held that plaintiffs adequately alleged that Section 107 has the unconstitutional effect of advancing religion. It provides a blanket exemption from taxable income for ministers' housing that is not available to similarly situated secular employees, and allows them to receive a tax-free housing allowance that is not available to other taxpayers. The section also provides a benefit to religion itself, since churches can pay ministers lower salaries when part of their compensation is tax-free. This special benefit for clergy and religion cannot be justified as an accommodation to protect free exercise. However, plaintiffs did not allege sufficient facts to show that the predominant effect of § 265(a)(6) favors religion. It merely gives ministers the same incentive to purchase a home that is available to other taxpayers. [Thanks to Michael Gompertz for the lead.]

Texas Board of Education Adopts More Conservative Social Studies Curriculum

In two party-line 9 to 5 votes yesterday, the Republican majority on the Texas State Board of Education adopted controversial changes to the state's social study guidelines that reflect a more socially conservative viewpoint. AP reports that over 200 amendments were offered this week to draft standards that had been prepared over the last 18 months by groups of teachers and university faculty. Today's Dallas Morning News quotes board member Don McLeroy who said the changes are an attempt to balance a curriculum that has been slanted toward liberal viewpoints. One of the curriculum changes involves students' approach to religious liberty and church-state separation. According to a release from the Texas Education Agency, the following will be added to the Government curriculum standards:

Examine the reasons the Founding Fathers protected religious freedom in America and guaranteed its free exercise by saying that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, and compare and contrast this to the phrase "separation of church and state."

Responding to criticism of earlier changes (see prior posting), the Board restored Thomas Jefferson to the list of political philosophers that students will study in world history. He was already included in the U.S. History and the Government curricula.

Teachers Suspended Over Charge Of Sprinkling Holy Water On Colleague

Yesterday's South Florida Times reports on the investigation of two reading teachers growing out of an incident at Blanche Ely High School in March. The two, who are Christian, are charged with bullying and harassment for sprinkling their colleague Schandra Rodriguez with holy water. Apparently the problem began when Rodriguez was having a boisterous discussion with her students about the January Haiti Earthquake. One student suggested that the earthquake was the wrath of God growing out of a supposed pact Haitian rebel leaders made with Satan in a voodoo ceremony over 200 years ago. Rodriguez, an atheist, responded by discussing with her students her lack of belief in God and the Bible. Overhearing the discussion, teachers Leslie Rainer and Djuna Robinson came into the room. A student said: "Sounds like somebody needs some holy water." At that point, Robinson, in the doorway, retrieved and displayed a small bottle of liquid, which Robinson's lawyer says was perfume. He says there was no sprinkling of water, and that Rodriguez's complaint may have been motivated by other issues. At any rate, while the investigation of the incident is pending, both Ranier and Robinson have been removed from the classroom, and Ranier has been demoted. [Thanks to Scott Mange for the lead.]

Court Says Woman's Muslim Faith Relevant To Her Emotional Distress Claim

In Jama v. United States, (WD WA, May 17, 2010), a Muslim woman brought various challenges to the manner in which law enforcement officers searched her apartment in a raid seeking evidence of khat distribution. During the raid, police officers forced plaintiff to remain outside her apartment in a nightgown without her head covered. In an earlier decision (see prior posting), the court concluded that police and DEA officials had qualified immunity to plaintiff's Religious Freedom Restoration Act claim. In the current decision, the court rejected plaintiff's Fourth Amendment claims. However it held that plaintiff did properly plead a claim for the common law tort of outrage-- which requires intentional or reckless infliction of emotional distress. The court said in part:

Taking the facts in the light most favorable to Plaintiff, a rational jury could find that federal officials, who enjoyed a position of power over Plaintiff while conducting the search in this case, forced her to appear in a state of relative undress before unrelated men for a significant period of time. They forced her to appear in this state of undress even though she had modest clothing in the very apartment that officers were searching. A rational jury could find that police officers therefore unnecessarily degraded Plaintiff, and that this behavior ought "to be regarded as atrocious, and utterly intolerable in a civilized community." ... A rational jury could also find that federal agents knew full well that Plaintiff’s Muslim faith made her particularly susceptible to emotional distress under these circumstances.

[Thanks to Volokh Conspiracy for the lead.]

EEOC Settles One Religious Discrimination Suit; Files Another

The federal Equal Employment Opportunity Commission today announced the settlement of one religious discrimination lawsuit and the filing of another. The Pollard Agency, an Alabama-based security company, has agreed to pay $49,566 to settle a lawsuit charging it with refusing to accommodate a security guard's religious practices. According to today's press release, the lawsuit was brought on behalf of Marian Lawson, a Mennonite Baptist whose religious practice required her to wear a headscarf. Lawson was fired from a client assignment in Georgia. The settlement also calls for EEO training, reporting and posting. In the settlement, Pollard denies wrongdoing. (See prior related posting.)

A second press release announces the filing of a lawsuit in Arizona federal district court against Orkin Pest Control. The company is charged with denying jobs to older workers and favoring Church of Jesus Christ of Latter-Day Saints applicants, particularly returned missionaries. It also allegedly retaliated against an applicant who complained to corporate headquarters about the policy. The Complaint charges that Orkin advertised on Craig's List for a recruiter to assist in hiring LDS missionaries for seasonal positions, saying that the jobs were great for returning LDS missionaries (who are usually young people). The lawsuit was filed on behalf of 51-year old Thomas Kokezas who was not hired after being asked his age in an interview.

Stolen Sunrise Rock Cross Replacement-- Up Again, Down Again

In a posting last night, updated this morning, I chronicled the reappearance of the Sunrise Rock Cross at the Mojave War Memorial after the original Cross-- the subject of a recent Supreme Court decision-- was stolen. Now, according to the San Diego Union Tribune , the National Park Service took down the replacement yesterday afternoon after determining that it was not the original Cross. The new cross was six inches taller than the original and was freshly painted. Four new holes were drilled to replace bolts cut off by thieves when they took the original. A Park Service spokesperson gave two reasons for removal of the replacement cross. First the government is still under court order not to display a cross on Sunrise Rock, at least prior to any transfer of the land to the VFW. Second, the new Cross is illegal since the person erecting it did not follow Park Service regulations to obtain permission to put up a new memorial in a national park. [Thanks to Scott Mange for the lead.]

Court Protects Geithner From Questioning In Bailout Establishment Clause Challenge

In Murray v. U.S. Department of Treasury, 2010 U.S. Dist. LEXIS 48692 (ED MI, May 18, 2010), a Michigan federal magistrate judge refused to permit plaintiff to take the deposition of Treasury Secretary Timothy Geithner and granted Geithner a protective order barring plaintiff from deposing him. The decision comes in a lawsuit challenging on Establishment Clause grounds the federal bailout of the insurance giant AIG. Plaintiff alleged that because AIG is the market leader in Sharia-compliant financing, the bailout unconstitutionally uses federal funds to support Islamic religious activity. (See prior posting.) The court said in part: "Plaintiff has failed to cite any case law supporting his assertion that Defendant Secretary Geithner's reasoning and decision-making process, beyond what is available in the public record, is relevant to Plaintiff's Establishment Clause claims."

School Prevails In Requiring Cap and Gown Over Lakota Regalia For Part of Graduation

In Dreaming Bear v. Fleming, 2010 U.S. Dist. LEXIS 48970 (D SD, May 18, 2010), a South Dakota federal district court refused a Lakota Sioux high school student's request for a preliminary injunction that would excuse him from his high school's requirement that he wear a cap and gown at graduation while receiving his diploma. Aloysius Dreaming Bear, a member of the Oglala Sioux Tribe, planned to wear his traditional Lakota regalia to graduation. Oelrichs High School officials said he could do so, but that he had to wear a cap and gown over his traditional clothing during the time he walked across the stage to receive his diploma. He could remove the cap and gown as he exited the stage. The school already has scheduled traditional Lakota feather and plume ceremonies in the school gymnasium preceding graduation, and each student who wishes to do so will receive traditional star quilts after leaving the stage during graduation. The court held that the graduation ceremony is school-sponsored speech. The school board may impose restrictions on it that are reasonably related to educational concerns. The cap and gown met that requirement as a universally recognized symbol that demonstrates the unity of the class and celebrates academic achievement.

Mormon Missionaries Encountering Resistance Over Arizona Immigration Law

Yesterday's Arizona Republic reports that Mormon missionaries in the state are encountering resistance from Latinos they are seeking to convert because the sponsor of the state's controversial new immigration law (SB 1070) is a Mormon. Also some recent Latino converts are leaving their new faith over the issue. The LDS Church views Arizona's 1.8 million Latinos as crucial to the church's continued growth. There are 51 Spanish-speaking LDS congregations in Arizona. State Senator Russell Pearce, a Republican from Mesa and chief proponent of the new immigration legislation, has said that his efforts against illegal immigrants in the state is based in part on the LDS Church's 12th Article of Faith that calls for "obeying, honoring and sustaining the law." Kim Farah, a spokeswoman for the LDS Church in Salt Lake City, said that Mormon elected officials do not represent the position of the Church which has not taken a position on immigration. Church leaders have urged compassion and careful reflection on immigration issues.

New Russian Law Restores Properties To Churches

Interfax reported yesterday that the government committee of the Russian Federation has signed into law a new bill that allows communities to transfer back to religious organizations without charge property that was originally part of a religious complex. Apparently the bill is designed to deal with movie theaters and shops built during Soviet times on the land of monasteries, where those building have now been turned back into use as a church. It applies only to buildings converted back to religious purposes before the date of passage of the new law.

10th Circuit Upholds Drug Charges; Alleged Religious Beliefs Found Insincere

In United States v. Quaintance, (10th Cir., May 19, 2010), the U.S. 10th Circuit Court of Appeals upheld an Arizona federal district court's refusal to dismiss the indictments of Danuel and Mary Quaintance for conspiracy and possession with intent to distribute marijuana. (See prior posting.) The appellate court rejected the Quaintance's RFRA defense, agreeing with the district court that the defendants' religious beliefs were not sincere. The Court of Appeals held that because this finding stands, it need not address the trial court's alternative holding that defendants' beliefs were not "religious" beliefs.

Islamic Scholars Debate UAE's New Law On Organ Transplants

The National yesterday reported on a debate among Islamic scholars over a new legal instrument released this week by the United Arab Emirates permitting organ transplants from patients who are brain dead, but whose heart is still beating with the assistance of a ventilator. A number of other Muslim countries have permitted organ transplants, but some scholars insist that under Islamic law a person is dead only when he or she is no longer breathing. In 2008, Dubai's General Authority for Islamic Affairs and Charitable Activities published a fatwa on its website approving organ donation.

Lawsuit Dismissed After School Board Broadens Anti-Bullying Instruction

In Alameda, California, a group of parents dismissed their lawsuit against the Alameda Unified School District after the board of education agreed to a change one of the safe-schools anti-bullying and diversity lessons. According to a press release from Pacific Justice Institute, parents were seeking to have their young children excused from the class that focused on bullying of gays and lesbians. They argued that the anti-bullying focus on only one group was an attempt to teach young children that "the LGBT lifestyle is both moral and normative." A public records request showed that the vast majority of harassment complaints involved opposite sex and racial harassment and there had been no complaints during the past 18 months on bullying in the elementary grades due to sexual orientation. The schools agreed to change their anti-bullying curriculum to cover all categories-- gender, race, religion, nationality and disability.