Recent Prisoner Free Exercise Cases

In Gunn v. Kentucky Department of Corrections, 2010 U.S. Dist. LEXIS 60530 (WD KY, June 18, 2010), a Kentucky federal district court rejected an inmate's equal protection, free exercise and RLUIPA claims growing out of his treatment by the prison chaplain. Plaintiff was required to sit in an assigned seat in the chapel because of his security status, and on one occasion was escorted out and not allowed to return to services after they had begun.

In Jackson v. Raemisch, 2010 U.S. Dist. LEXIS 61130 (WD WI, June 21, 2010), a Wisconsin federal district court dismissed a suit by a Muslim inmate formerly employed in the prison's food service area where inmates were not permitted to pray. The court held that plaintiff's RLUIPA claim for injunctive relief to allow prayer was mooted because he no longer works for food services. Defendants were granted qualified immunity as to plaintiff's claim for damages under the First Amendment. Plaintiff's equal protection claim was dismissed for lack of evidence. However he was permitted to pursue a claim for retaliation.

In Jones v. McFadden, 2010 U.S. Dist. LEXIS 61559 (ED CA, May 27, 2010), a California federal magistrate judge dismissed a complaint by a Muslim inmate that breakfast pastries served to inmates during a lock down contained pork products. The court held that mere negligence in checking the ingredients before serving them to Muslim inmates did not support a free exercise claim. A conscious or intentional act is required.

In Smith v. Marshall, 2010 U.S. Dist. LEXIS 61323 (CD CA, June 21, 2010), a California federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 61371, May 11, 2010) and dismissed a complaint by a Muslim prisoner that he was denied prayer oil purchased for him by a third party because he had met his limit for receiving packages, and in buying prayer oil himself (which was allowed) he was required to pay use tax.

In Allen v. Weimer, 2010 Kan. App. Unpub. LEXIS 458, (KS Ct. App., June 18, 2010), a Kansas appellate court held that an inmate who was dismissed from his prison job with a private employer could not validly claim violation of his religious rights when he untruthfully represented that he could work 8-hour days, even though he knew his religious call out was during that 8-hour period.

In Johnson v. Delaunay, 2010 U.S. Dist. LEXIS 62038 (SD NY, June 18, 2010), a New York federal district court upheld a Department of Corrections policy that permits an inmate to participate in a religion's programs only if the individual is registered in the Department of Corrections database as belonging to that religion. It also rejected damage claims on sovereign immunity grounds.

In Cooper v. Evans, 2010 U.S. Dist. LEXIS 61998 (SD IL, May 28, 2010), an Illinois federal magistrate judge refused to dismiss an inmate's claims that he was denied a lacto-ovo diet required by his Buddhist religious beliefs. The court rejected defendants' claims that plaintiff failed to exhaust his administrative remedies.

In Raheem v. Miller, 2010 U.S. Dist. LEXIS 62230 (WD OK, June 23, 2010), an Oklahoma federal district court adopted the recommendations of a magistrate (2010 U.S. Dist. LEXIS 62148, May 14, 2010) and permitted an inmate to proceed with some of his RLUIPA claims based on denial of a kosher/halal diet. However the court dismissed his claim seeking damages for emotional distress.

In Amaker v. Goord, 2010 U.S. Dist. LEXIS 62350 (WD NY, June 23, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 62349, March 25, 2010) and found that the New York Department of Corrections violated RLUIPA when it allowed Rastafarians to wear dreadlocks, but did not permit them to be worn by members of other religious groups. Prison officials argued that wearing of dreadlocks by plaintiffs who were members of Nation of Islam was not required by their religious faith. The court concluded however that officials may not impose restrictions based on governmental assessments of the validity to a religious denomination of a particular practice.

Religious Limits On Arbitrators Invalidated By British Appellate Court

In Jivraj v. Hashwani, (EWCA, June 22, 2010), Britain's Court of Appeal held that Britain's Employment Equality (Religion and Belief) Regulations 2003 invalidate a provision in a private commercial arbitration provision requiring that arbitrators are to be drawn from members of a particular religious community. The agreement provided that "All arbitrators shall be respected members of the Ismaili community and holders of high office within the community." The trial court had held that arbitrators were not in an employment relationship and thus were not covered by the non-discrimination regulations. The Court of Appeal reversed, finding that so long as the relationship grew out of a contract, it was covered. Lexology reports on the decision.

Britain To Appoint Its First Catholic Woman As Ambassador to the Vatican

London's Sunday Telegraph today reports that Britain's coalition government will reach out to Catholics through a high profile appointment for Britain's next ambassador to the Vatican. The Foreign Secretary has endorsed naming former Conservative MP Ann Widdecombe, who would be the first Roman Catholic woman to hold the position. No Catholic held the ambassadorial position before 2006, when the current British ambassador to the Vatican, Francis Campbell, was appointed. Widdecombe, who is fluent in Latin, is an outspoken defender of the Church's traditional teachings. She converted to Catholicism in 1993 after the Church of England voted to ordain women priests. The nomination must be sent to the Vatican for final approval, and will be announced formally later this summer. The current ambassador will resign after the Pope's visit to Britain in September.

DC Circuit: Researchers Have Standing To Challenge Change In Stem Cell Grant Policy

In Sherley v. Sebelius, (DC Cir., June 25, 2010), the U.S. Court of Appeals for the D.C. Circuit, reversing the trial court, held that two doctors who specialize in adult stem cell research have "competitor standing" to challenge the Obama administration's lifting of limitations on NIH funding of embryonic stem cell research. Plaintiffs are injured because they will now find the application process for stem cell research more comeptitive, and will need to invest more time and resources to craft successful grant applications. The court did not pass on the merits of the claim that the new NIH Guidelines are in violation of Congressional limits on the use of Department of Health and Human Services funds to support research that will harm or destroy human embryos. The district court had denied standing to all plaintiffs, including the Christian Medical Association and a Christian adoption agency. (See prior posting.) Reuters reports on the decision. Alliance Defense Fund issued a press release on the decision, as did Advocates International.

$1.15M Settlement Reached In Church Zoning Case

Alliance Defense Fund announced Friday that a $1.15 million settlement had been reached in St. Benedict Center v. Town of Richmond, a suit in New Hampshire state court in which a conservative Catholic religious organization brought constitutional and RLUIPA challenges to various zoning rulings restricting its building of a chapel and religious school. (Full text of complaint.) In October, the court granted summary judgment to St Benedict holding that the requirement that a house of worship obtain a special zoning exception is an unconstitutional prior restraint on speech and that various conditions imposed on St Benedict's site plan violate the "substantial burden" provisions of RLUIPA. However the court held that individual members of the Planning Board and Zoning Board of Appeal had absolute judicial immunity for their actions, despite allegations that the Planning Board chairman was motivated by his disagreement with St. Benedict's teachings on abortion, homosexual behavior, pornography and divorce. (Full text of decision.) (See prior posting.)

In April, the parties submitted a proposed settlement, but nearby landowners intervened to object to the settlement. The court ordered the town's Board of Selectmen to confer with town zoning bodies on the matter. Now, apparently after such consultation, a settlement has been reached. In addition to payment of damages and attorneys fees, the town has agreed to a separate settlement that makes completion of the Church and school building possible.

Pagan Group Is Suing To Obtain Property Tax Exemption

Today's Greene County (NY) Daily Mail reports on the long-running controversy between a Pagan sect and the town of Catskill over whether an historic inn owned by the sect is entitled to a tax exemption. The Maetreum of Cybele, Magna Mater, a 501(c)(3) religious organization, purchased the former Central House in 2002. It uses it as a convent to house priestesses, as well as hosting public events and providing temporary housing and other services to the needy. The Maetreum was granted a tax exemption in 2006, but it was taken away a year later because of a split in the group. Apparently the town now argues that the property should be classified as an inn or lodge, whie the Maetreum insists that it is a religious retreat center for pagans. The Maetreum filed suit in state court last year to regain its tax exemption, and an initial hearing was held last December. Currently discovery is ongoing.

Concerns of Britain's Office for Judicial Complaints Over Judge's Comments Are Disclosed

Britain's National Secular Society (NSS) reports today that a press release earlier this month by Britain's Office for Judicial Complaints (OJC) clearing part-time judge Cheri Booth (wife of former Prime Minister Tony Blair) of charges of judicial misconduct omitted concerns that OJC had about her conduct. In sentencing a Muslim man in an assault case, Booth said she was imposing a suspended sentence because he is a religious person. An OJC statement said that Booth's comments did not constitute judicial misconduct and that no disciplinary action is necessary. (See prior posting.) However, a letter to NSS, the group which originally filed the complaint against Booth, said: "The Lord Chancellor and Lord Chief Justice have expressed some concern about the impact Recorder Booth [sic] comments may have had on the public perception of the judiciary and the sentencing process. All judges must, of course, be very mindful of how they express themselves when dealing with sensitive issues of equality and diversity so as not to create the impression that some individuals can expect more leniency than others." It also disclosed that Booth would receive "informal advice from a senior judge."

Court Says Hawaii Church's Challenge To Cannabis Laws Is Not Ripe

In Oklevueha Native American Church of Hawaii v. Holder, 2010 U.S. Dist. LEXIS 61844 (D HI, June 22, 2010), an Hawaii federal district court dismissed on ripeness grounds a pre-enforcement challenge to federal drug laws by a church that uses cannabis in its religious ceremonies and by its spiritual leader. In the amended complaint involved in the case, plaintiffs allege that the church's 250 members fear criminal prosecution for cultivating, consuming, possessing, and distributing cannabis. However, according to the court, plaintiffs allege neither a concrete plan to violate federal drug laws nor a specific threat of law enforcement against them. The complaint also failed to describe in sufficient detail plaintiffs' use of cannabis, how they acquire it and their future intent. Plaintiffs also sought return or compensation for $7000 worth of cannabis seized from FedEx in transit to plaintiffs. The court concluded that plaintiffs' tort claims for theft and conversion are barred by sovereign immunity and the Supremacy Clause. However the court left open for further proceedings claims under the federal Religious Freedom Restoration Act for return of the cannabis or compensation. (See prior related posting.)

Secularists Begin Billboard Campaign Objecting To "Under God" in Pledge

The North Carolina Secular Association this week, in time for Independence Day, launched a billboard ad campaign objecting to the phrase "under God" in the Pledge of Allegiance. Yesterday's Christian Post carries a photo of the billboard that appears throughout the state. It superimposes the phrase "One Nation Indivisible" (leaving out "under God") on an American flag. One of the billboards is on Charlotte's Billy Graham Highway. Similar campaigns have been undertaken in other states. (My Fox Tampa Bay).

New Focus On Elena Kagan's Religious Liberty and Church-State Views

As hearings on the nomination of Elena Kagan for the Supreme Court approach, more focus is now being given to her views on religious liberty and church-state separation. Brookings Institution fellow Melissa Rogers suggests that Kagan may be more sympathetic to free exercise claims than is Justice Stevens whom she is replacing.

Americans United for Separation of Church and State has written to the Chairman and Ranking Member of the Senate Judiciary Committee raising concerns about Kagan's "views on the critical relationship between religious liberty claims and civil rights laws" and about "her position on core Establishment Clause values, such as the principle that the government may not fund 'pervasively sectarian' organizations." (Press release, full text of letter).

Several Jewish groups have weighed in on the Kagan nomination. The Union of Orthodox Jewish Congregations wrote to to members of the Senate Judiciary Committee saying that "Kagan has demonstrated a reassuring appreciation for the rights guaranteed by the Free-Exercise clause and a growing respect for a balanced approach to the Establishment Clause which allows for appropriate government support for the work of religious organizations." (Press release, full text of letter). The Religious Action Center for Reform Judaism wrote members of the Judiciary Committee recommending a number of questions that should be asked of Kagan. They cover not just church-state matters, but also issues such as the death penalty, corporate election contributions, abortion, gay marriage, environmental laws and Presidential powers. (Full text of letter). The Rabbinical Alliance of America (representing 850 right wing Orthodox rabbis) issued a strong statement denouncing the Kagan nomination, releasing it through Christian Newswire.

The Secular Coalition for America issued a statement opposing the Kagan nomination "until she makes her support for church-state separation much more clear and emphatic." It also sent a letter to the chairman of the Senate Judiciary Committee with suggested questions for Kagan.

Meanwhile, US News & World Report says that one of the key issues that Republican Judiciary Committee members will raise with Kagan is her praise in 2006 for activist Israeli Supreme Court Judge Aharon Barak. In presenting Barak with an award at Harvard Law School, Kagan called him "my judicial hero."

The Judiciary Committee hearings begin on Monday, June 28. The Committee has extensive materials on the nomination posted on its website. The hearings will also be webcast through the Committees website.

Hindu American Leader Writes On Political Candidates From Dharma Faiths

An op-ed by Aseem Shulka, co-founder of the Hindu American Foundation, published Wednesday by the Washington Post, laments the fact that the two best known Indian-American political figures, both with backgrounds in Dharma faiths, emphasize their Christianity. Governor of Louisiana, Bobby Jindal, who grew up in a Hindu family, converted to Catholicism while in High School. Nikki Haley, winner of the Republican gubernatorial primary in South Carolina this week, who at one time melded her Sikh heritage with her husband's Methodist faith, has increasingly emphasized her evangelical Christian beliefs. Shulka writes:

Jindal and Haley, as brilliant and dynamic trailblazers, have thrown open the doors to political office, laying waste to minefields of ethnic slurs and perverse allegations that naysayers put in their way. Race is not an impediment to high office, and that is something to celebrate, no doubt. But in their public remonstrations of their parent's faiths, Jindal and Haley tell well over three million Hindu and Sikh Americans that their time has not yet come as people of faith. And in their absolute denial of their religious heritage, they deny something far greater: a society that privileges pluralism, that no one religion has the monopoly on Truth, and that Hindus, Sikhs, Muslims, Pagans, agnostics and atheists may invest differently towards the afterlife, but can live in this life with all of the humanity, generosity and yes, frailty of any of those that presume to lead our states or nation today.

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."