Supreme Court Rejects Facial Challenge To Release of Petition Signers, But Says As-Applied Challenge May Win

The U.S. Supreme Court today by an 8-1 vote rejected a facial challenge to Washington state's Public Records Act, but left open the possibility that a pending as-applied challenge could succeed. At issue in Doe v. Reed, (S. Ct., June 24, 2010), are objections to the release of the names of signers of a petition seeking a referendum to overturn Washington's expansion of the rights of domestic partners. The Court concluded that the state's interest in protecting the integrity of the electoral process is strong enough to justify the public release of most referendum petitions. But here plaintiffs claim that the objective of those seeking release is to post the names of signers on the Internet and urge backers of the domestic partnership bill to contact and harass them. Courts may prohibit disclosure if the signers can show a reasonable probability they will face harassment, threats or reprisals from either government officials or private parties.

While there was broad agreement on the result, the case produced six separate opinions, including a dissent by Justice Thomas who argued that the facial challenge should succeed because there are always less restrictive means for the state to use to preserve the integrity of the referendum process. Various concurring opinions differed on the strength of the remaining as-applied challenge in the case. (See prior related posting.) The Wall Street Journal reports on today's decision.

FLDS Member Gets 17 Years For Sexual Assault of Minor In Celestial Marriage

A Texas trial court judge yesterday sentenced FLDS member Abram Harker Jeffs to 17 years in prison and a $10,000 fine for sexual assault of a child. Jeffs was convicted of assaulting a 15-year old with whom he had entered a "spiritual" or "celestial" marriage while he was legally married to another woman. Jeff has three other wives and children in other states. Yesterday's San Angelo Standard Times reports that Jeffs could have received up to life in prison, and that the sentence he received is the lowest first-degree felony sentence yet for a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Much of the evidence in Jeffs' trial was seized in the high-profile April 2008 raid of the FLDS Yearning for Zion Ranch.

Fired Prison Chaplain States Valid 1st Amendment Claim

In Holmgren v. State of Minnesota, (MN Ct. App., June 22, 2010, a Minnesota state appellate court held that a former prison chaplain's First Amendment free expression may have been violated when she was fired for speaking out against a new program being considered by the state which she believed would violate the Establishment Clause. Kristine Holmgren, employed as a non-denominational chaplain at the state's Shakopee facility, learned that the state-funded InnerChange Initiative Program was being considered for Shakopee. She believed the program's purpose was to convert inmates to Christianity using state dollars, and knew that a similar program was under court challenge in Iowa. (See prior posting.) She pressed the warden on the issue, including at a staff meeting, for which the warden fired her.

The court denied defendant's motion for summary judgment, concluding that the facts alleged by Holmgren were sufficient to establish a First Amendment violation. She at least raised a factual question as to whether she was speaking as a citizen rather than as part of her employment duties. Her criticisms involved a matter of public concern, and her right to speak about the issue outweighs the state's interest in an orderly work place. Defendant does not have qualified immunity because case law clearly establishes Holmgren's right not to be fired for raising potentially illegal conduct by government officials.

Native Americans Seek To Stop Reservoir Construction At Cemetery Site

In Santee, California, efforts are underway on several fronts to prevent the Padre Dam Municipal Water Board from proceeding with construction of a reservoir and pipeline in an area that was a burial ground for the Viejas Band of Kumeyaay Indians. East County Magazine reported yesterday that after human remains and artifacts were discovered, a state Superior Court judge issued a temporary restraining order to stop construction on part of the project. The Viejas Tribe plans to seek an extension of the order to the entire construction site at a hearing on Friday. On June 17, the California Native American Heritage Commission ruled the site to be a sanctified cemetery and ceremonial site, and requested a halt to construction while mitigation measures, including tribal monitoring during grading activities, are considered. However construction continued until the state Attorney General threatened to file suit to stop further damage to the area while the Water District reviews the Commission's proposed mitigation measures. Padre Dam authorities say construction is necessary to protect against firestorms and delays cost some $150,000 per month. It says moving the project to a new site would cost $10 million.

New York Legislature Passes Anti-Bullying Bill

WGRZ News reports that on Tuesday the New York state Senate passed by a vote of 58-3 an anti-bullying bill, the Dignity For All Students Act. The bill which was previously approved by the state Assembly bars discrimination or harassment of students by school employees or other students. It provides:

No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.

The bill, which will now go to Gov. Patterson for his signature, also requires school boards to develop policies and guidelines to foster a school environment free from harassment and discrimination.

Archdiocese Accused of Fraud In Sex Abuse Lawsuit Seeking To Skirt Statute of Limitations

USA Today reports on a lawsuit filed Tuesday against the Catholic Archdiocese of Los Angeles (CA) alleging fraud and negligence in allowing Rev. Jeffrey Newell to continue to serve as a priest long after sex abuse charges against Newell were reported to church officials in 1994. Plaintiff alleges he was defrauded into not suing earlier because he believed the Archdiocese had prevented Newell from ever working around children as it promised to do. While Newell was removed from the Los Angeles archdiocese and transferred to Tijuana, Mexico a year before the victim reported the abuse, he continues to hold daily Mass there with drums and electric bass. He says he has led a chaste life for the last 20 years. By using fraud, plaintiff and others who have invoked a similar theory, get around statute of limitations problems, since fraud tolls the statute and individuals have three years after discovering they were a victim of fraud to sue.

Court Refuses To Halt Civil Rights Investigation of Home School Group

A state trial court judge in Hamilton County, Indiana has refused to intervene to prevent the Indiana Civil Rights Commission from investigating discrimination charges against a home schooling organization. According to today's Indianapolis Star, the Fishers Adolescent Catholic Enrichment Society (FACES), which organizes group activities for home-schooled children, claims that the burden of the Civil Rights investigation on the small group violates its members freedom of religion and association. The investigation grows out of a mother's complaint that the group refused to accommodate her daughter's food allergy to chicken at a 2008 All Souls' Day Masquerade Ball. The group expelled the girl's family after they filed a discrimination complaint. The court held that FACES has suffered no harm that would justify judicial intervention, even though it has suspended its activities because of the litigation. (See prior related posting.)

Volunteer Police Chaplain Fired Over Ties To Holy Land Foundation Case

Last December, the Illinois State Police appointed seven clergy to be volunteer police chaplains. However, according to today's Chicago Tribune, detailed background checks were not carried out at the time. Now one of those appointed as a Muslim chaplain, Sheikh Kifah Mustapha, associate director of the Mosque Foundation in Bridgeview, has had his appointment revoked. It turns out he was named as an unindicted co-conspirator in the case against Holy Land Foundation for Relief and Development, the Muslim charity whose founders were convicted of sending funds to Hamas. (See prior posting.) Mustapha helped raise funds in Chicago for the Holy Land Foundation. Today the Council on American Islamic Relations will hold a press conference to object to the State Police action against Mustapha.

High School Diplomas Drop "In the Year of Our Lord"

Today's New Haven (CT) Register reports that after receiving a complaint last year, this year for the first time the diplomas awarded by New Haven, Connecticut high schools have dropped the phrase "in the year of our Lord". The city said that none of its other public documents use the phrase in reciting dates, while school superintendent Reginald Mayo said: "I'm surprised it took this long for someone to notice it. We certainly don’t want to offend anyone."

Gay Pride Organizers Seek To Exclude Anti-Gay Christian Evangelist

In Minneapolis (MN), organizers of a gay pride festival expected to draw 200,000 people want the Minneapolis Park Board to bar a Christian evangelist from handing out literature at the event. According to yesterday's Minneapolis Star Tribune, the Park Board denied a booth to evangelist Brian Johnson, but approved a request that he be allowed to hand out anti-gay literature at Twin Cities Pride, saying that since it is a public event he is free to share his views so long as he does not disturb others. However festival organizers say they will file suit in federal court today seeking an injunction. They say Johnson is welcome to attend, but not to hand out literature, relying on the Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston that allowed St. Patrick's Day Parade organizers to exclude an LGBT group from marching. The Park Board says, however, that the case is inapplicable; since Johnson was denied a booth at Twin Cities Pride, he is not part of the event.

UPDATE: Our Twin Cities (6/24) reports that organizers of the Twin Cities Pride Festival have filed a lawsuit in federal court seeking an emergency order to reverse the decision of the Minneapolis Park and Recreation Board that would allow homosexual critic Brian Johnson to hand out at the festival written materials supporting his message of sin and repentance.

UPDATE2: On Top Magazine (6/26) reports that federal district court judge John Tunheim has refused to bar Brian Johnson from Loring Park during the Gay Pride event. Event organizers said: "As long as Mr. Johnson and his family do not create a disturbance, they can walk the Festival and distribute their leaflets and Bibles to willing attendees. But should their behavior be as troubling as it was at last year's festival, we shall ask Minneapolis Police to remove them."

Court Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Heineman, (D NE, June 21, 2010), a Nebraska federal district court upheld the constitutionality of the Nebraska Funeral Picketing Law. In so doing, the court refused a request by Shirley Phelps-Roper, a member of Westboro Baptist Church, to issue a preliminary injunction against enforcement of the statute . Westboro members often picket funerals of veterans carrying signs proclaiming that God is punishing America for its sins, which include tolerating homosexuality. The court distinguished the 8th Circuit's decision (see prior posting) striking down Missouri's funeral picketing law, saying:

The government interest underlying the NFPL is distinguishable from, and more significant than, the government interest underlying the statute addressed in [Phelps-Roper v.] Nixon. There, the Eighth Circuit ruled that a state’s interest in protecting funeral attendees as a group was outweighed by Phelps-Roper’s First Amendment right.... However, it is not apparent that the ruling in Nixon would apply to a statute designed to protect a much narrower group: family members of the deceased.

Relying instead on a 6th Circuit decision upholding Ohio's funeral picketing law (see prior posting), the court concluded that Nebraska's law:

is narrowly tailored to serve a significant government interest, i.e., the protection of family members attending funeral and burial services, and leaves ample alternative channels for Phelps-Roper’s communications that are protected by the First Amendment.

Yesterday's Wichita (KS) Eagle reports on the decision.

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.