Court Rejects Landowner's RLUIPA Challenge To Mixed Use Zoning Ordinance

In Dixon v. Town of Coats, 2010 U.S. Dist. LEXIS 56740 (ED NC, June 9, 2010), a North Carolina federal district court rejected a RLUIPA challenge as well as federal and state constitutional challenges to a zoning ordinance that excluded religious assemblies from a six-block Mixed Use Village in downtown Coats, North Carolina. The court held that while a landowner who intends to rent his property to a Christian church has standing to bring a "substantial burden" claim under RLUIPA, the exclusion of churches from one area does not place a substantial burden on free exercise when other ares in the Town are available for churches. The court also rejected plaintiff's claim under the "equal terms" provision of RLUIPA, holding that the plaintiff must be "a religious assembly or institution" to bring a claim under this section. The court went on to reject federal and state free exercise claims and a federal equal protection claim.

Ecclesiastical Abstention Doctrine Bars Court From Deciding Governance Dispute

In Rentz v. Werner, (WA App., June 7, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine precludes the court from adjudicating a dispute between former members of the Aquarian Foundation, a spiritualist church headquartered in Seattle, Washington, and the church’s current minister. At issue is the interpretation of the church's articles of incorporation and bylaws. Plaintiffs allege that the minister improperly expelled them and others from church membership. The minister argues that she is president of the congregation and its minister for life, and that those she expelled were committing heresy. The court concluded that the issues raised in the litigation go to the core of the church's ecclesiastical affairs, and that the First Amendment protects against judicial interference in religious belief and practice whether the church is congregational or hierarchical.

Judge, Wife of Tony Blair, Cleared Over Sentencing Comments

UK Press Association yesterday reported that Britain's Office for Judicial Complaints cleared Cherie Blair, wife of former Prime Minister Tony Blair, of charges of judicial misconduct. (OJC Statement, 6/10). Blair sits as a part-time judge at Inner London Crown Court, using her maiden name, Cherie Booth. As previously reported, Booth sentencing defendant Shamso Miah in an assault case, told him: "I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour." Both the National Secular Society and the British Humanist Association complained that Blair acted in a discriminatory manner in suggesting that a non-religious person would have been treated more harshly. At the same time, some in Britain on the political right charged bias in favor of Muslims.

Virginia Supreme Court Says Division Statute Does Not Apply To Episcopal Church Split

Today in Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, (VA Sup. Ct., June 10, 2010), the Virginia Supreme Court reversed a decision of the state's circuit court (see prior posting) and held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. The statute, Va. Code § 57-9(A), provides: "If a division has ... occurred ... in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority ..., determine to which branch of the church ... such congregation shall thereafter belong." The Supreme Court held that while there had been a "division" in The Episcopal Church, the Convocation of Anglicans in North America is not a "branch" of The Episcopal Church. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. [Thanks to Bob Tuttle for the lead.]

$1 In Damages Awarded In Claim That Police ID Card Containted Mark of the Beast

In Brooklyn, New York, a federal judge has awarded damages of only $1 to a school safety officer who was suspended from her job after she refused to be fingerprinted or accept the New York Police Department's new biometric identification card with embedded computer chips. Velma Craig, a nondenominational Christian, believes the card contains the "mark of the beast", warned against in the Book of Revelation. Today's New York Times reports that in 2007, the court granted summary judgment to Craig, finding that the city had "utterly failed" to explain why it could not have accommodated Craig's religious beliefs. Damages were left to a later phase. Last month the court appointed a lawyer for Craig, but he asked to be dismissed after Craig refused to cooperate in preparation for the damages trial. Then, when Craig asked for a delay in the jury trial that was set to start yesterday, the court ruled that if she did not proceed on her own, it would merely award her $1 in damages. Craig agreed to that, but said she would appeal.

Lawsuit Challenges Health Care Reform As Infringement of Religious Beliefs

Yesterday, the American Center for Law & Justice, on behalf of five plaintiffs, filed a federal lawsuit challenging the constitutionality of the individual mandate imposed by the recently enacted health care reform legislation. (Press release.) In addition to claiming that this portion of the Patient Protection and Affordable Care Act exceeds Congress' power under the Commerce Clause, the lawsuit alleges that the new law violates the rights of three of the plaintiffs under the Religious Freedom Restoration Act. The complaint (full text) in Seven-Sky v. Holder, (DDC, filed 6/9/2010) alleges, for example, that plaintiff Susan Seven-Sky, a chiropractor and massage therapist:

15. ... believes in natural forms of healing and trusting in God to protect her from illness or injury and to heal her of any afflictions, no matter the severity of the health issue, and does not need, or want to be forced to buy, health insurance coverage.

16. In addition, Seven-Sky has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

Similar allegation are set out as to two other plaintiffs.

6th Circuit Upholds Permanent Injunction Against McCreary County's Ten Commandments Display

While in 2005, the U.S. Supreme Court upheld a preliminary injunction barring the a display of the Ten Commandments along with other historical documents that refer to God in two Kentucky county courthouses, it turns out that decision hardly ended the litigation. A majority of the Supreme Court concluded that the "Foundations of American Law and Government" displays violated the Establishment Clause because their predominant purpose was the advancement of religion. (See prior posting.) However Justice Souter added: "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." That led the counties to continue to pass new resolutions setting forth secular purposes for the displays. Yesterday in American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, (6th Cir., June 9, 2010), a majority of a 6th Circuit panel agreed with the district court that resolutions adopted in 2005 were adopted only as a litigating position, and affirmed the district court's grant of a permanent injunction. (See prior posting.) Judge Clay's opinion for the court said that while a later 2007 resolution was technically not before the court, it too was inadequate to change the counties' original purpose.

Judge Gibbons issued a concurring opinion concluding that new resolutions passed by the counties in 2005 did not eliminate their religious purposes. However she said she would not reach the question of whether the 2007 resolution eliminated the religious purpose because procedurally the defendants never appealed the trial court's ruling on a motion in which that resolution was first brought to the attention of the district court.

Judge Ryan issued a strong dissent, saying: "I humbly associate myself with Justice Scalia's powerful and logically compelling explanation in McCreary IV that the displays in question do not violate the First Amendment and never did." He urged fellow judges to grant en banc review in the case. In a press release, Liberty Counsel which represents defendants indicated it would file a motion for review.

Pro-Muslim Ad Campaign Launched In Britain

Politics Daily reported yesterday on a new advertising campaign in Britain aimed at improving the public perception of Islam. Ads running on buses, in subway stations and on a fleet of cabs emphasize the way in which contemporary Muslims balance their religious traditions with human rights concerns and social responsibility. One ad, for example, shows a female lawyer wearing a headscarf, and carries the message: "I believe in women's rights. So did Muhammad." Another shows a male charity worker with the caption, "I believe in social justice. So did Muhammad." Photos of posters are at the Inspired by Muhammad website. The ad campaign is sponsored by the Exploring Islam Foundation.

Arizona Charges Against Former FLDS Leader Warren Jeffs Dropped

Yesterday's Salt Lake Tribune reports that, upon the motion of the prosecutor, an Arizona court has dismissed the two charges of sexual conduct with a minor pending in Arizona against former FLDS leader Warren Jeffs. Jeffs, who headed the polygamous FLDS sect, has already been sentenced to two 5-year to life sentences in Utah on charges of rape as an accomplice. (See prior posting.) Those convictions are on appeal to the Utah Supreme Court. (See prior posting.) Sexual assault and bigamy charges against him are pending in Texas. (See prior posting.) According to USA Today, the prosecution decided to drop Arizona charges in part because victims no longer wish to pursue the case and in part because Jeffs has already spent more time in jail in Arizona awaiting trial than he could receive if convicted. Jeffs' attorney said he believes that the Arizona charges were dropped because of alleged false statements made in the Utah trial by the chief witness against Jeffs, Elissa Wall. Meanwhile, Jeffs' attorney said they would oppose Jeffs' extradition to Texas while Jeffs' appeal is still pending in Utah.

Mormon Church Agrees To Penalty For Late Reporting of Prop 8 Contributions

The Mormon Church has agreed to pay a proposed $5,539 monetary penalty to California's Fair Political Practices Committee (FPPC) for failing to properly report contributions of $36,968 (including staff time) it made in 2008 to support the passage of Proposition 8, California's ban on same-sex marriage. CBS News reported yesterday that the Church was late in reporting contributions it made to the Protect Marriage Coalition. During the last two weeks of the campaign, it failed to comply with the daily reporting requirements. A statement by the Human Rights Campaign argued that the Church's violations were likely purposeful. The FPPC will vote at its meeting today on whether to approve the proposed fine agreed to by the FPPC Executive Director.

Suit Claims Humane Society Discriminated In Firing Muslim Veterinarian

Yesterday's Naples (FL) News reports on a federal lawsuit charging religious discrimination filed last month by a Muslim veterinarian who was employed briefly by the Gulf Coast Humane Society (GCHS). The complaint (full text) in Atmani v. Gulf Coast Humane Society, Inc., (MD FL, filed 5/10/2010), alleges that Kay Henrion, president of the GCHS board of directors, made derogatory comments about plaintiff Riadh Atmani's religion and Arabic descent to other members of the board and its staff. GCHS removed Atmani after Henrion made false charges about veterinary surgeries he performed. It also terminated GCHS executive director Donald Cohen and another board member for supporting Atmani and opening an investigation as to why he was fired. Among other things, the complaint charges illegal religious discrimination under Title VII of the 1964 Civil Rights Act and under Florida's Civil Rights Act.

EPA Presses Amish Farmers To Lessen Run-Offs Into Chesapeake Bay

Today's New York Times carries a long article on the efforts of the Environmental Protection Agency to get Amish farmers in Lancaster County, Pennsylvania to take steps to reduce the manure run-off from their farms. The run-off from the 61 million pounds per year of manure produced in that county adds substantially to the pollution of Chesapeake Bay. EPA is trying to persuade plain-sect farmers to build fences and buffers, with the aid of federal grants, in order to reduce the run-off. Some farmers are taking advantage of the offers, but others resent the government intrusion and oppose taking government grants. A number of farmers are building manure pits to deal with the problem.

Librarian Loses Suit Claiming University Was Hostile To His Christian Beliefs

Today's Columbus (OH) Dispatch reports that a librarian at the Mansfield campus of Ohio State University has lost his federal lawsuit in which he claimed that the University as "an aggressive proponent of the homosexual lifestyle" is "a naturally hostile environment to the expression of traditional Christian beliefs and morality." Savage v. Gee, (SD OH, June 7, 2010), involved an escalating series of charges and counter charges between librarian Scott Savage and various faculty members, all growing out of Savage's suggestion of the book The Marketing of Evil as possible assigned reading for all entering freshmen. (Background.) The book contains a chapter describing homosexuality and aberrant human behavior that has gained acceptance through political correctness. Rejecting Savage's claim that his eventual resignation amounted to a constructive discharge, the court concluded:

Savage cannot show that OSU made his working conditions so intolerable that a reasonable person in his position would have felt compelled to resign. Although the controversy that erupted over his book recommendation resulted in faculty members publicly criticizing his judgment and professionalism, these members had no power over Savage’s job and no ability to discipline or fire him.

2nd Circuit Says School Closing Did Not Violate Establishment Clause

In Incantalupo v. Lawrence Union Free School District Number 15, (2d Cir., June 7, 2010), the 2nd Circuit rejected parents' Establishment Clause challenge to a consolidation plan adopted by the Lawrence Union Free School District. The plan resulted in the closure of one elementary school. Plaintiffs claimed the Board of Education, many of whose members are Orthodox Jews whose children attend private yeshivas, adopted the consolidation plan to reduce taxes and leave the public schools underfinanced. They argued that this promoted Orthodox Judaism by making more money available to Orthodox families for private school tuition. The court disagreed, finding that plaintiffs had not plausibly alleged that the plan violated the Lemon test:

As long as the plan affords any realized tax savings to taxpayers generally and without regard to religion, plaintiffs cannot plausibly allege that either the purpose or the primary effect of the plan is to establish religion. The fact that a large number of Orthodox Jewish taxpayers may freely choose to spend their tax savings from the plan on religious education for their children warrants no different conclusion because the plan itself does nothing to reward or even encourage such a consumption choice.

(See prior related posting.)

Critics Question State Funds To Christian Counseling Clinic Owned By Member of Congress

The Minnesota Independent last week reported that a Christian counseling agency owned by U.S. Rep. Michelle Bachmann (R-MN) and her husband Dr. Marcus Bachmann has received over $27,000 in state funds since 2007. The state funds are paid to the clinic to treat low-income Minnesotans for mental health and chemical dependency problems. All of the clinic's counsellors identify as Christians, and its drug and alcohol counselor is an ordained minister, as is at least one of its other counsellors. Critics, including Americans United, question whether the clinic-- which touts the religious nature of its counselling (Bachmann & Associates website)-- is keeping its religious activity separate from the social services funded by state money.

Group Urges End To Limits On Use of Meeting Facilities For Religious Purposes

Alliance Defense Fund announced yesterday that it has written to 151 governmental entities operating libraries, parks, schools and community centers urging them to end policies that restrict or exclude groups from using their public meeting rooms and facilities for religious purposes. Many of these facilities bar the use of their space for religious worship or religious seminars while permitting use by other groups to discuss non-religious issues. ADF says this kind of viewpoint discrimination is unconstitutional.

Enfield School Board Changes Its Mind-- Will Appeal Church Graduation Ban

The board of the Enfield, Connecticut Public Schools has changed its mind and decided that it will appeal a federal district court ruling barring it from holding this year's high school graduation ceremonies in First Cathedral, a Bloomfield, CT Christian church. (See prior posting.) Last week, the board voted 5-4 to hold graduation on school premises and not appeal the trial court's preliminary injunction. But yesterday, according to the Hartford Courant, Board member Donna Szewczak changed her vote, apparently because of complaints by members of the community.

UPDATE: On June 14, the Second Circuit denied Enfield's request to lift the temporary injunction issued by the district court, noting that the school board had already decided to hold graduation on school premises for this year. The district court will hear arguments on whether or not to permanently enjoin use of First Cathedral for graduations before next year's graduation ceremonies take place. (AP).

Korea's Constitutional Court Says Pre-Embryos Are Not Humans

South Korea's Bioethics and Biosafety Act, Art. 16 and 17, permit excess embryos that have been fertilized in vitro for purposes of assisted reproduction to be used for research for specified medical and reproductive purposes, so long as the embryo has not developed beyond 14 days. Consent of the donors is required, and that consent can later be withdrawn. The statute also calls for disposal of embryos that have been stored longer than five years. No donor consent is required for this. On May 27, South Korea's Constitutional Court upheld these provisions, finding that they "do not violate the right of life of human beings." The Court held: "Although we acknowledge the basic rights of fetuses before birth, pre-embryos, which have been fertilized but within which the 'primitive streak' has not yet formed, cannot be regarded as humans."

The ruling came in a case filed by a married couple from whom three embryos had been produced in vitro. One was implanted in the wife, and the other two were to be used for research pursuant to a consent originally filed by the couple. The couple, however, changed their minds and brought suit to vindicate the rights of the remaining embryos. Joining them as plaintiffs were eleven others, including doctors, ethicists and philosophers. The two embryos were also named as plaintiffs. The Life Committee of the Catholic Diocese of Seoul denounced the Court's decision. Various aspects of the decision are reported on by The Hankyoreh (May 28); Korea Times (May 27); JoongAng Daily (May 28); and CathNews (May 31).

Authorities Reluctant To Interfere With Gay Exorcism Rites

The June issue of Details Magazine reports on exorcism rituals practices by some Pentecostal and Evangelical churches across the country aimed at driving out demons which are deemed by them to be the cause of homosexuality. The article focuses in particular on 20-year old Kevin Robinson of Enfield, Connecticut who has undergone gay exorcism at least ten times since he was 16. Many who undergo these exorcisms are minors. Prosecutors and child welfare agencies are reluctant to interfere with the practice because of First Amendment religious freedom concerns. Yesterday's Boston Edge also reports on the gay exorcism phenomenon.

Israel Passes New Law On Egg Donation, Allowing Religion of Donor To Be Ascertained

According to Haaretz, Israel's Knesset yesterday approved a bill that for the first time in Israel allows women between the ages of 20 and 35 to donate their eggs for couples having difficulty conceiving a child. The law provides that a baby born through in vitro fertilization will be the legal child of the birth mother, not the egg donor. All egg donors are to remain anonymous, but a database will allow recipients of egg donations to check the religion of the donor. This is apparently a response to recent controversial rulings by some Israeli Orthodox rabbis that whether a child is Jewish under the rules of matrilineal descent turns on the religion of the egg donor, not the birth mother. Until recently, Orthodox authorities had generally considered the religion of the birth mother to control. This controversy was discussed in a Wall Street Journal piece last month. Haaretz says that the new law will also allow recipients to choose a donor in certain cases.