Michigan High Court Rejects Catholic School's Zoning Appeal

In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, (MI Sup. Ct., June 18, 2010), the Michigan Supreme Court rejected a Catholic school's claim that the denial of its zoning variance request amounted to an infringement of its equal protection rights. The Court rejected plaintiff's claim that the Township treated it differently than similarly situated entities and also rejected the school's charge that the Zoning Board of Appeals "discriminatorily applied the facially neutral zoning ordinance against it because of its religious affiliation." The Court said:

ZBA member Laporte validly questioned plaintiff's attorney about the basis for the assertion that religious use should be favored over secular uses. Nothing in the exchange demonstrates bias against Catholics or Catholic primary education. The questions were asked to clarify plaintiff’s attorney’s own statements. Nothing in the minutes of the ZBA hearing supports the conclusion that the ZBA denied plaintiff the variance because of a bias against plaintiff's religious affiliation.

Zoo Enjoined From Barring Religious Group's Sale of T-Shirts

In Higher Taste v. City of Tacoma, 2010 U.S. Dist. LEXIS 60638 (WD WA, June 4, 2010), a Washington federal district court issued a preliminary injunction prohibiting the enforcement of a resolution adopted by the Metro Park District of Tacoma restricting the sale of goods in the entrance area of the Point Defiance Zoo and Aquarium. Plaintiff, Higher Taste, is a religious organization whose purpose is "to propagate, through the dissemination of educational literature and other expressive items, such as message-bearing T-shirts, the principles of non-violence, animal protection, vegetarianism, and spiritual ecology (as set forth in the Vedic literatures of ancient India)...." The Park District's resolution barred Higher Taste from selling their T-shirts, or distributing them in exchange for a voluntary contribution, on the walkway leading to the front of the zoo. The court concluded that the Park District had not met its burden of showing that its restriction is narrowly tailored to meet its significant interests in park aesthetics and public safety.

Court Upholds Texas Rejection of Graduate Program In Creation Science

In Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, (WD TX, June 18, 2010), a Texas federal district court upheld the Texas Higher Education Coordinating Board's refusal to grant the Institute of Creation Research Graduate School a certificate of authority to offer a Master of Science degree with a major in Science Education. The Texas Education Code (Sec. 61.301) authorizes the Board to regulate the use of "academic terminology" in order "to prevent deception of the public resulting from the conferring and use of fraudulent or substandard college and university degrees." The Board denied ICRGS's application because its curriculum which was designed to promote "scientific creationism" and "Biblical creationism" does not adequately cover the breadth of knowledge of the discipline taught. The Board's decision was based on the conclusion by the Commissioner of Higher Education that the school's program "inadequately covers key areas of science and their methodologies and rejects one of the foundational theories of modern science," and thus "cannot be properly designated as either 'science' or 'science education.'"

The court rejected ICRGS' claim that the Board engaged in "viewpoint discrimination", finding no animus toward any religious viewpoint. Applying a "rational basis" standard, the court rejected claims that the Board violated ICRGS' free exercise and free speech rights, as well as claims under the Texas Religious Freedom Restoration Act, and the equal protection and due process clauses of the 14th Amendment. The court concluded that the Board's "decision is rationally related to the State's legitimate interest in protecting the public by preserving the integrity of educational degrees." (See prior related posting.)

Rubashkin To Be Sentenced To 27 Years In Financial Fraud Case

Yesterday Iowa federal district judge Linda Reade released a 52-page Sentencing Memorandum in the case of United States v. Rubashkin. In it she concludes that at the hearing scheduled for today she will impose a sentence of 27 years in prison, followed by five years of supervised release, on Sholom Rubashkin who was convicted on 86 counts of financial fraud. Rubashkin, former vice president of the kosher meat processing firm Agriprocesors in Postville, Iowa, will also be ordered to pay restitution totalling $26.85 million to two banks and a livestock supplier. The sentence imposed is at the low end of the Federal Sentencing Guidelines range for the crime and offender characteristics involved as computed by the court, but is two years more than the prosecution requested. (See prior posting).

The court rejected a number of arguments for a downward departure in sentencing, including that "Defendant did not commit the offense conduct for personal gain or out of a sense of greed, but rather, 'in order to continue what he viewed as the critical Lubavitch mission of providing Kosher food to the Jewish community.'" It also rejected government arguments for an upward departure, but said it reserved the right to consider an upward departure if it is required to re-sentence Rubashkin. Despite this threat, according to the New York Times Rubashkin will appeal the decision to challenge the court's interpretation of the Sentencing Guidelines. Rubashkin supporters have conducted an extensive campaign on Rubashkin's behalf, arguing that he has been unfairly treated. (See prior posting.)

USCIRF Urges Obama To Publicly Raise Human Rights Concerns With Russian Leader

Russian President Dmitry Medvedev will be in the United States this week to promote Russian-US economic ties. Tomorrow he visits California's Silicon Valley and on Thursday he will meet with President Obama in Washington. (Business Week). Last week, Leonard Leo, recently re-elected chairman of the U.S. Commission on International Religious Freedom, wrote President Obama urging him to publicly raise religious freedom and other human rights issues with the Russian leader. (Full text of letter.) The letter urges the President to press for reform of Russia's law on extremism and "to protest the impunity accorded to Russian officials and others who commit gross human rights violations as well as violent hate crimes against members of Russia’s religious and ethnic minorities...." The letter goes on to express concern that "the de facto favored status of the Moscow Patriarchate Russian Orthodox Church results in difficulties for minority religious communities, particularly those officially deemed non-traditional, such as the non-Moscow Patriarchate Russian Orthodox and Protestant communities."

RLUIPA Lawsuit Filed By Hasidic Group Against New York Village

A lawsuit has been filed against the village of South Blooming Grove, New York by a Satmar Hasidic group that wants to restore an old club house at a former resort on Lake Anne. Today's Hudson Valley Times Herald-Record reports that the lawsuit, originally filed in state court but transferred to federal court on the judge's order, claims that the village's refusal to consider Sheri Torah's application violates RLUIPA. The village says the application by the Jewish group raises questions. Originally Sheri Torah sought to build a synagogue, then it asked for a special use permit to build a yeshiva, and finally it filed a site plan for a subdivision with more than 500 homes. Sheri Torah, a group opposed to the leadership in the nearby Satmar community of Kiryas Joel, is associated with a group of investors who have been trying for years to develop the 800 acres-- nearly half the land in the village-- that belonged to the former resort on Lake Anne. The village's attorney accuses Sheri Torah of trying to bully their way to get land use approval. According to Wikipedia , South Blooming Grove was incorprated in 2006 to check expansion of the Satmar Hasidim in Kiryas Joel. Since then, two other RLUIPA lawsuits have been filed against it.

Louisiana Passes Religious Freedom Act

The Louisiana legislature has passed and sent to Gov. Bobby Jindal for his signature SB 606, the Preservation of Religious Freedom Act. As reported by the Baton Rouge Advocate, final enactment came yesterday as the state Senate voted 30-6 to concur in House changes. (Vote history). The bill provides that state and local governments must show both a compelling interest and use the least restrictive means before they may substantially burden a person's exercise of religion, even through a facially neutral rule or a rule of general applicability. Opponents say the law will open floodgates for costly lawsuits.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief, (William & Mary Bill of Rights Journal, Vol. 18, pp. 901-914, 2010).
• Carl H. Esbeck, Taxpayer Standing from Flast to Hein, (Mississippi Law Journal Online, Vol. 80, 2010).
• Karima Bennoune, Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism, (Columbia Human Rights Law Review, Vol. 41, pp. 635-698, 2010).
• Saadiya Suleman, Freedom of Religion and Anti Conversion Laws in India: An Overview, (ILI Law Review, Vol. 1, No. 1, p. 106, 2010).
  

From SmartCILP:

• Carolyn Evans, Constitutional Narratives: Constitutional Adjudication on the Religion Clauses in Australia and Malaysia, 23 Emory International Law Review 437-468 (2009).
• Russell Powell, Zakat: Drawing Insights for Legal Theory and Economic Policy from Islamic Jurisprudence, 7 Pittsburgh Tax Review 43-99 (2009).
• Asifa Quraishi, Taking Shari'a Seriously (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 26 Constitutional Commentary 297-311 (2010).
• John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory International Law Review 583-608 (2009).

Recent Prisoner Free Exercise Cases

In Powell v. Raemisch, 2010 U.S. Dist. LEXIS 57798 (WD WI, June 11, 2010), a Wisconsin federal district court permitted a Muslim inmate to proceed with free exercise and RLUIPA claims alleging that he was denied Ramadan meal bags for 18 days during Ramadan in 2009.

In Meyer v. Wisconsin Department of Corrections, 2010 U.S. Dist. LEXIS 59437 (WD WI, June 16, 2010), a Wisconsin federal district court rejected an inmate's free exercise and RLUIPA challenges to the prison's refusal to furnish him an emblem of the "world tree" as a symbol of his claimed religion, Shamanism. The court said plaintiff could have reverted to the classification of Paganism as his religious preference and received a blank Book of Shadows in which he could have drawn a world tree emblem. There was no evidence that this would have been a substantial burden.

In Rosales v. Abbott, 2010 U.S. Dist. LEXIS 59809 (WD TX, June 16, 2010), a Texas federal magistrate judge recommended rejecting a Muslim inmate's objection that he was not permitted to change his name in accordance with religious practice. The court concluded that the Texas statute barring name changes by felons does not violate plaintiff's free exercise rights.

In Carney v. Hogan, 2010 U.S. Dist. LEXIS 59440 (ND NY, June 15, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 59439, March 30, 2010) and permitted plaintiff to move ahead with his complaint that the Sex Offender Treatment Program violates his free exercise rights by requiring his participation in faith-based programs as a condition of his release from civil confinement. However the court held that defendants had qualified immunity from damage actions. Only plaintiff's claim for injunctive relief
can proceed.

In Merrell v. Lawler, 2010 U.S. Dist. LEXIS 60088 (MD PA, June 16, 2010), a Pennsylvania federal district court allowed an inmate to move ahead with his claim that his free exercise rights were infringed when he was not permitted to attend religious services in the prison chapel.

In Kramer v. Raemisch, 2010 U.S. Dist. LEXIS 60235 (WD WI, June 16, 2010), a Wisconsin federal district court refused to permit inmates in different Wisconsin prisons who allege various restrictions on their ability to practice Odinism to join their claims in a single lawsuit. They claimed they were denied the right to engage in group religious exercise, to possess various religious items and to consume pork as part of a religious diet and at religious feasts.

7th Circuit: "Deific Decree Exception" In Insanity Defense Has Establishment Problems

In Wilson v. Gaetz, (7th Cir., June 17, 2010), the U.S. 7th Circuit Court of Appeals has raised an interesting Establishment Clause concern over a traditional aspect of the insanity defense. The case involved a murder defendant who suffered from delusions about a sinister Catholic conspiracy. A famous 1915 New York case decided by then-Judge Cardozo created the "deific decree" exception to the principle that an insanity defense requires that the defendant show his mental illness prevented him from appreciating the wrongfulness of his act. Cardozo argued that "if ... there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, ... it cannot be said of the offender that he knows the act to be wrong" even though he knows that it is illegal. Here the 7th Circuit observed:

[T]o distinguish between "deific" and all other delusions and confine the insanity defense to the former would present serious questions under the First Amendment’s establishment clause, and it is notable therefore that Judge Cardozo placed his emphasis on a defendant’s inability to appreciate his act as being morally wrong, whatever the source of his moral beliefs.

9th Circuit Says Amended Mining Plan For Sacred Mt. Tenabo Violates NEPA

In Te-Moak Tribe of Western Shoshone of Western Nevada v. U.S. Department of the Interior, (9th Cir., June 18, 2010), the 9th Circuit held that the Bureau of Land Management's approval of an amendment to a phased exploration project on sacred Indian land in Nevada violated the National Environmental Policy Act. Cortez Gold Mines, Inc. plans to explore for minerals in the area that is traditionally linked to the religion and culture of the Te-Moak and other Western Shoshone tribes. In particular, Mount Tenabo, traditionally used for prayer and meditation, is considered the source of life by the tribes and figures in their creation stories. The court concluded that the BLM's required Environmental Assessment of the amendment to the project failed to adequately consider the cumulative impacts to Cultural Resources and Native American Religious Concerns of the proposal. However the court concluded that the project did not violate either the National Historic Preservation Act or the Federal Land Policy and Management Act. After consultation with the Tribe, BLM has already designated Horse Canyon and parts of Mount Tenabo-- both within the project area-- as eligible for inclusion on the National Register of Historic Places. Courthouse News reports on the decision.

New Zealand Court Faces Religious Accommodation Issue In Community Service Sentence

New Zealand's Dominion Post yesterday reported on an unusual religious accommodation issue that has arisen in a community service sentence imposed by a New Zealand court on a recent Muslim convert. Last December, Jason Osborne was sentenced to 300 hours of community work for failure to pay $15,334 of fines. His probation officer assigned him to work in the recycling area of a rubbish dump and Osborne refused. Corrections officials claim Osborne told them he needed to pray 5 times each day and could not do so in front of non-Muslims. Osborne however says his only objection was that at the rubbish dump he could not find a clean enough place to pray at the twice-per day prayer times during his work schedule. After being threatened with prison if he did not complete his community service, Osborne found a different probation officer who allows him to do his community work as Splash Planet, and he has completed 50 hours during the past three weeks. On Thursday he appeared in court in Hastings to plead guilty to not completing his community work. After holding him in custody over night, the court released him on bail for eight weeks for him to complete his 300 hours of service.

6th Circuit Permits Evangelist To Distribute Literature On Outskirts of Arab Festival

In Saieg v. City of Dearborn, (6th Cir., June 17, 2010), the U.S. 6th Circuit Court of Appeals issued an injunction pending appeal to permit a Christian evangelist to distribute religious literature on the streets in the "outer perimeter" or "buffer zone" of the 2010 Dearborn Arab International Festival this week. A federal district court had upheld festival rules that required literature distribution take place only from a booth in the vendor area. (See prior posting.) The 6th Circuit said that prior case law supports restricting leaflet distribution among crowds in the core area of the Festival, but not in the surrounding streets. The Thomas More Law Center issued a release on the decision and the Detroit Free Press reports on the decision.

Meanwhile the Detroit Free Press reports that on Friday four Christian missionaries with a group called Acts 17 Apolegitics were arrested at the Festival on charges of disorderly conduct.

Groups Suggest Questions For Kagan On Establishment and Free Exercise

A release yesterday from the Religious Action Center for Reform Judaism reports that 21 religious and secular organizations have sent a joint letter to the Senate Judiciary Committee suggesting questions that should be asked during the Elena Kagan hearings on the Supreme Court nominee's views on the First Amendment religion clauses. Among other things, the five questions focus on instituitonal as well as individual religious liberty concerns, questions of taxpayer standing and the nominee's broader views about the Court's religion clause jurisprudence.

Quebec Court Orders Exemption From Religious Culture Course For Catholic School

In Canada, a Quebec Superior Court yesterday ordered the provincial government to grant an exemption from the mandatory course in Ethics and Religious Culture to a private Catholic high school. In a reform implemented last year, Quebec required both public schools and private religious schools (most of which receive some government funding) to offer a course in Ethics and Religious Culture covering Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. (See prior posting.) The Montreal Gazette reports that Loyola High School has won the right to teach about other religions and ethical creeds from a Catholic perspective rather than following the secular teaching guidelines created by the Education Department. The court ruled that otherwise the province would be infringing the school's religious freedom guaranteed by the Quebec Charter of Human Rights and Freedoms. The court wrote: "The obligation imposed on Loyola to teach the ethics and religious culture course in a lay fashion assumes a totalitarian character essentially equivalent to Galileo’s being ordered by the Inquisition to deny the Copernican universe." A broader challenge to the new course filed by parents was rejected last year. (See prior posting.)

Suit Planned Against Legion of Christ Over Sex Abuse

AP reports that a Mexican man, Jose Raul Gonzalez, plans to file suit on Monday against the Legion of Christ claiming that the now-deceased priest who founded the religious order was his father and sexually molested him. Gonzalez' mother, Blanca Lara Gutierrez, claims that Legion founder Rev. Marcial Maciel-- posing as an oil company employee and CIA agent-- fathered two children with her, adopted another, and proceeded to abuse two of the three children. The suit, charging fraud and negligence, will be filed in Connecticut where the Legion's U.S. headquarters are located. Plaintiff Gonzalez says that Maciel promised him and his brothers a trust fund. Gonzalez previously asked the Legion for $26 million to remain quiet about his charges against Maciel.

New Jersey Rabbi Pleads Guilty To Money Laundering

The Newark (NJ) Star-Ledger reports that yesterday Rabbi Eliahu Ben Haim, former head of a prominent synagogue in Deal, New Jersey, plead guilty in a New Jersey federal district court to money laundering charges. Ben Haim was one of five rabbis from the Syrian Jewish community and 39 others arrested last year in a high profile federal investigation of public corruption and money laundering. (See prior posting.) The rabbi used religious charities to launder $1.5 million purportedly from illegal activities provided to him by a government informant. According to a plea agreement, Ben Haim will cooperate in an investigation of his past tax returns, but he did not agree to cooperate in the prosecution of others in the case. Ben Haim remains free on $1.5 million bail.

Priest Publicly Challenges La Crosse Diocese's Standards In Reviewing Abuse Charges

Yesterday's Milwaukee (WI) Journal Sentinel reports that James Connell, a priest and canon lawyer who serves on the Archdiocese of Milwaukee Review Board has issued an open letter (full text) complaining that the standard of proof used by the Diocese of La Crosse's Child Sexual Abuse Review Board in evaluating whether to pursue a case against a priest or deacon is too high. He says that the Vatican requires any sexual abuse charge against a priest that "has a semblance of truth" to be referred to the Vatican's Congregation for the Doctrine of the Faith. (Vatican Guide).(See prior related posting.) However the La Crosse Diocesan Review Board that assists the Bishop in assessing charges apparently uses a standard of "moral certitude which excludes every prudent doubt or every doubt founded on positive reasons." Connell says that data for La Crosse shows a substantially higher percentage of unsubstantiated charges of abuse that the national average, and that this might be due to using too high a threshold in evaluating evidence. Connell went public after three months of trying to get the Diocese to make changes.

The Diocese of LaCrosse yesterday issued a Media Statement in response, calling Connell's statement a "personal highly technical opinion of church law." It says that it is fully complying with the Charter for the Protection of Children and Young People , and that a review of cases before the Review Board found none in which "a finding of insufficiency was based upon any canonical technicality." It says its standard of proof is one of "sufficiently confirmed." A May 11 letter (full text) from Msgr. Richard W. Gilles, the La Crosse Diocesan Administrator to the USCCB National Review Board says that the Diocese has consulted with its own canonist, Father Michael Gorman. The letter continues: "While Father Gorman points out some ambiguities which could give rise to some confusion about the burden of proof, Father Gorman does not share Father Connell’s views and opinions."

Lawsuit Challenges Coney Island Concerts Invoking Protection of Nearby Religious Services

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park filed suit in state court yesterday, invoking a city law designed to protect religious congregations. (See prior related posting.) The law prohibits amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. In the summer, evening services run until 10:00 p.m. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Now however, according to the New York Daily News, these weekday concert are being challenged. At stake are this year's free summer concerts (schedule), including ones by the Beach Boys and Neil Sedaka. A hearing is scheduled for June 30; the Neil Sedaka concert is scheduled for July 15. Plaintiffs say if they win on these concerts, that should establish precedent for stopping the entire amphitheater project.

RLUIPA Suits Settled-- Shabbos House OK'd; Prayer Breakfast Will Move

AP yesterday reported that the village of Sufferin, New York has settled a RLUIPA lawsuit brought against it by the Department of Justice chllenging the village's refusal to grant a zoning variance to permit the operation of a "Shabbos House" near Good Samaritan Hospital. The Shabbos House allows observant Jews to stay within walking distance of the hospital so they can visit patients without violating Jewish religious law that bars driving and use of money on the Sabbath. The settlement allows up to 14 people to stay overnight at the Shabbos House. The operator of the facility, Bikur Cholim, Inc., agreed to apply for a site-plan approval and comply with any instructions. The village attorney said the house has been operating throughout the four-year lawsuit without any incidents. A separate suit brought by Bikur Cholim was also settled. (See prior related posting.)

Meanwhile, in Phoenix, Arizona, CrossRoads United Methodist Church has settled its RLUIPA suit against the city challenging a zoning decision. Yesterday's Arizona Republic reports that under the agreement, the church will move the location of its Saturday pancake breakfast service within six months. In the meantime, the service will be moved from outside to inside the church. The city's Board of Adjustment had agreed with neighbors that the church was operating a charity dining hall in violation of residential zoning restrictions by holding its weekly service that offered an egg, pancake and bacon breakfast along with song and prayer.