Lawsuit Says Public Utilities In Arizona Town Discriminated Against FLDS Apostates

KSCG-TV News yesterday reported on a lawsuit filed last month by the Attorney General of Arizona against the municipal water and electric companies that furnish utilities to residents of Colorado City, Arizona and its twin community, Hildale, Utah. Land in the towns has traditionally been owned by the United Effort Plan Trust of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). FLDS leaders have encouraged their followers to avoid associating with apostates who they describe as tools of the devil. The complaint (full text) in State of Arizona v. Hildale-Colorado City Utilities, (Maricopa Co.Super. Ct. filed 6/25/2010) alleges that defendants have violated the Arizona Fair Housing Act by discriminatorily denying water service and delaying furnishing electrical service to Ronald Cooke because he was an apostate from the FLDS Church. Cooke, who left the Church at age 18 or 19 returned to Colorado City after suffering serious injuries in an accident and moved into an unfinished home there. He needs water for sanitation and electricity for a medical device he uses. Defendants told Cooke he needed a new building permit for his home before he could receive utilities, while no similar requirement was imposed on FLDS members. The lawsuit also alleges failure to accommodate Cook's medical disability. Cooke has filed a similar lawsuit under the federal Fair Housing Act in federal court as well.

German Magazine Says Catholic Church Is Following Conservatives In Reactions To Abuse Cases

Der Spiegel yesterday carried an analysis of the Vatican's recent actions in priest sexual abuse cases. It argues that there is a power struggle in the Vatican between liberal and conservative forces:

This spring, it looked as though the Catholic Church was finally going to confront charges of sexual abuse head on. Following recent police raids in Belgium, however, the Vatican has once again closed ranks....

The conservatives in the church state see the zero-tolerance policy of US bishops as a means of curtailing the rights of accused priests. By contrast, liberal spirits are pushing to rapidly investigate and refer cases to secular authorities. It currently looks as if the conservatives have regained the upper hand....

German bishops Robert Zollitsch and Reinhard Marx were ... given a dressing down. Benedict reproaches them for not being tender enough with their fellow bishop Walter Mixa when he came under fire amid allegations of violence towards children in his care.

The Holy Father has clearly shown how to treat, in the true Christian spirit, those brothers who have strayed from the flock. He announced that, "following a period of healing and reconciliation," Bishop Mixa, like other retired bishops, would again be available for pastoral duties.

Cath News today however reports that Vatican's Congregation for the Doctrine of the Faith is about to release a set of changes to the Church's internal rules for disciplining priests that will extend the canon law statute of limitations for bringing charges against an abusive priest from 10 years after the victim's 18th birthday to 20 years after. It will also for the first time define child pornography as a grave offense subject to the Congregation's jurisdiction.

5th Circuit Upholds Neutrality Policy For Texas Education Agency Staff

In Comer v. Scott, (5th Cir., July 2, 2010), the 5th Circuit upheld a policy of the Texas Education Agency (TEA) that required its staff to remain neutral and refrain from expressing any opinions on curricular matters subject to the jurisdiction of the Texas State Board of Education. TEA's Director of Science, Christina Comer, was fired for forwarding to 36 science teachers and to leaders of science teacher organizations an announcement about an anti-Creationism talk that was being presented in Austin. Comer challenged the neutrality policy as a violation of the Establishment Clause, arguing that the primary effect of the policy was to endorse or advance religion. The court concluded however:

we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State's endorsement of a particular religion.

(See prior related posting.)

Iranian Ministry Sets Acceptable Islamic Male Hair Styles

AOL News today reports that for the first time, Iran's Ministry of Culture and Islamic Guidance has issued a catalogue of acceptable "Islamic" male hair styles. Pony tails, spikes and Mohawks are among those forbidden. Flat tops and Elvis style hair are permitted. A more complete list of acceptable styles will be released later this month at the Modesty and Veil Festival in Tehran.

7th Circuit En Banc Interprets Equal Terms Provision of RLUIPA

In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, (7th Cir en banc, July 2, 2010), the 7th Circuit in an en banc decision interpreted the equal terms provision of RLUIPA by creating a modified version of the test used by the 3rd Circuit. The 7th Circuit's test treats a regulation as violating the Equal Terms provision "only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory criteria." The 3rd Circuit's test uses "purposes" instead of "criteria" to decide whether there has been discrimination. The court rejected the broader 11th Circuit test for discrimination under RLUIPA. Applying its new test, the en banc court, as did the 3-judge panel, refused to grant a preliminary injunction to permit a church to relocate from a crowded warehouse to property it purchased in an area near a train station zoned for various commercial uses, but not for religious services. Judge Sykes dissented, suggesting an approach that builds on the 11th Circuit's approach.

Report Focuses On Restrictions Limiting Feeding of Homeless

Last week, the National Coalition for the Homeless announced the release of a new report: A Place at the Table: Prohibitions on Sharing Food with People Experiencing Homelessness. According to the press release:

The report argues that targeting churches, service providers and volunteers by placing restrictions on providing food to homeless people is part of a broader trend toward criminalizing homelessness.

The report focuses on areas such as zoning restrictions, limits on use of public property, food safety laws, and police harassment. The report then sets out examples of innovative food programs and proposes various local, state and national legislative actions to help alleviate hunger.

Two Women Appointed Syariah Judges In Malaysia

In a first for Malaysia, Prime Minister Datuk Seri Najib Tun Razak has appointed two women as Syariah Court judges. Bernama reported Saturday that in mid-May 31-year old Suraya Ramli was appointed to the Syariah court in Territory of Putrajaya, while 39-year old Rafidah Abdul Razak was appointed to the court in Kuala Lumpur. The moves were part of the government's program to transform the Syariah judiciary and to enhance justice in cases involving family and women's rights.

Concern Expressed Over Obama Administration's Use of Term "Freedom of Worship"

Sheila Reports today reviews the concerns being expressed in some quarters about change in phraseology by the Obama administration which is often using the term "freedom of worship" instead of "freedom of religion." The State Department says the terms are interchangeable, but others argue that freedom of worship is a much narrower concept. Both the President and Secretary of State Hillary Clinton have used "freedom of worship" in speeches they have delivered.

ACLU Says Catholic Hospitals Violate Law By Refusing Abortions To Save Mothers' Lives

The ACLU announced last week that it has sent a letter (full text) to the Centers for Medicaid and Medicare Services asking it to investigate situations in which religious hospitals refuse to provide emergency reproductive health care. The letter says that refusal of Catholic hospitals to perform abortions that are necessary to save a pregnant woman's life violate provisions of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and the Conditions of Participation of Medicare and Medicaid regulations, 42 C.F.R. § 482.13. The letter cited specific cases of refusal of medical care.

Recent Articles of Interest

From SSRN:

• J. Thomas Oldham, Book Review: 'Almighty God Created the Races' by Fay Botham, (Journal of Law and Religion, Forthcoming).
• Intisar A. Rabb, Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt, (Islamic Law and Society, Vol. 17, pp. 63-125, 2010).
  

From SmartCILP:

• Roberta Rosenthal Kwall, Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism (Reviewing David L. Lange and H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment), 22 Yale Journal of Law & Humanities 143-170 (2010).

Recent Prisoner Free Exercise Cases

In Sterr v. Baptista, (9th Cir., July 1, 2010), the 9th Circuit rejected an inmate's claim that prison officials placed substantial burdens on his religious exercise when they restricted vegetation for his Earth-based religion to "grass only" and set a new schedule for using the prison's religious grounds.

In Stevens v. Skolnick, (9th Cir., July 1, 2010), the 9th Circuit concluded that denial of a TRO to an inmate who was refused permission to conduct his daily Native American prayer practice is not an appealable final order.

In Forde v. Baird, 2010 U.S. Dist. LEXIS 63375 (D CT, June 25, 2010), a Connecticut federal district court held that RFRA requires a federal prison to grant an exemption from non-emergency cross-gender pat down searches to a female Muslim inmate whose religion prohibits her from being touched by men outside of her close family.

In Porter v. Beard, 2010 U.S. Dist. LEXIS 63431 (WD PA. June 21, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 63413, May 12 2010) and allowed an inmate to proceed with claims that his free exercise rights were violated when authorities seized and destroyed his medicine bag.

In Putzer v. Donnelly, 2010 U.S. Dist. LEXIS 63707 (D NV, June 16, 2010), a Nevada federal district court approved a magistrate's recommendations (2010 U.S. Dist. LEXIS 63708, May 11, 2010) and rejected challenges to prison policy that allows one Jewish inmate to light Sabbath candles for all Jews in the prison before Friday evening services that are open to all. Plaintiff claimed he had a right to attend the candle lighting service.

In Kole v. FCI Danbury, 2010 U.S. Dist. LEXIS 63986 (D CT, June 25, 2010), a Connecticut federal district court allowed an inmate to proceed with her RFRA and free exercise challenges to a decision by prison officials to change vendors for Kosher for Passover food, creating a rise in commissary prices for inmate for the food. Plaintiff alleged that the price increase made the food "essentially unavailable" to inmates.

In Gauthier v. Anderson, 2010 U.S. Dist. LEXIS 64190 (WD LA, June 28, 2010), a Louisiana federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 64236, April 21, 2010) and dismissed a frivolous an inmate's complaint that he was not allowed to attend regular church services while he was in lock-down for 2 1/2 months.

In Rouser v. Rutherford, 2010 U.S. Dist. LEXIS 64856 (ED CA, June 28, 2010), a California federal magistrate judge recommended dismissing for lack of evidence and failure to state a claim under RLUIPA and the Free Exercise clause a prisoner's charge that he was disciplined for rules violations solely because of his Wiccan religion. The disciplinary action grew out of a prison riot between several Wicca members and members of a Southern Hispanic gang.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 65356 (WD VA, June 30, 2010), a Virginia federal district court upheld a prison's ban on all Five Percenter publications, even if the particular publication does not advocate violence. The court also dismissed plaintiff's claim to entitlement to the Common Fare Diet, rejecting the magistrate's contrary recommendation.

In Hernandez v. Arizona Department of Corrections, 2010 U.S. Dist. LEXIS 65250 (D AZ, June 11, 2010), an Arizona federal district court permitted an inmate to move ahead against certain defendants on his claim that he is regularly provided kosher food trays that are missing food items and he is not provided with a nutritionally equivalent substitution.

In Belatedly Released Opinion, Judge Says Religion Is Not Basis for Recusal

Last week, a New York federal judge belatedly docketed an opinion that had been prepared in 1998 but not previously released, in which he rejected a motion that he recuse himself because of his religion in a civil rights case against the murderer of an Orthodox Jewish student in the 1991 Crown Height Riot. Defendant in the case based his motion in part on the fact that federal district judge David Trager who was presiding in his trial is an Orthodox Jew. In United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 (ED NY, June 28, 2010), Judge Trager held that religion is an impermissible basis on which to challenge a judge, saying "defendant's argument stands on the same infirm footing as motions that have been made to recuse my African-American and female colleagues in civil rights cases where the victim of the alleged discrimination was black or female." The motion, he said, also implicates Art. VI, clause 3 of the Constitution that bars any religious test for holding public office.

Schools' Released Time Program Challenged

A lawsuit was filed earlier this week in an Indiana federal district court challenging the religious released time program of the Fort Wayne (IN) Community Schools. The complaint (full text) in C.S. v. Fort Wayne Community Schools, (ND IN, filed 6/29/2010), claims that the program violates the Establishment Clause because trailers used for the programs are on school property and apparently obtain electricity from school power sources, and because elementary school students are permitted to attend the religious educational programs without explicit written permission from their parents. Courthouse News Service reports on the case, as does today's Chicago Tribune.

Principals Have No Qualified Immunity For Limiting Student Distribution of Religious Materials

In Morgan v. Swanson, (5th Cir., July 1, 2010), the U.S. 5th Circuit Court of Appeals refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. The court held that it is clearly established that the First Amendment applies to student-to-student distribution of non-curricular materials in elementary schools, and that the First Amendment prohibits viewpoint discrimination against religious speech in elementary schools. (See prior related posting.)

UPDATE: An amended opinion was filed on Nov. 29, 2010 adding that nothing in the opinion prevents the district court from granting qualified immunity if the facts show this was something other than non-disruptive student-to-student speech.

Pennsylvania Ban on Blasphemous Business Names Struck Down

In Kalman v. Cortez, (ED PA, June 30, 2010), a Pennsylvania federal district court struck down a Pennsylvania statute (15 Pa. Consol. Stat. 1303(c)(2)(ii)) that prohibits corporate names from containing "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The Pennsylvania Corporation Bureau rejected plaintiff's certificate of organization for an LLC that would operate under the name "I Choose Hell Productions LLC". Subsequently the Bureau permitted him to instead use the name "ICH Productions LLC". The court concluded that Pennsylvania's blasphemy statute violates the Establishment Clause, failing all three prongs of the Lemon test. It also held that the law infringes free speech rights as a viewpoint-based restriction, and is invalid under the Central Hudson case even if corporate names are considered commercial speech. Yesterday's Legal Intelligencer reported on the decision. [Thanks to James Maule via Religionlaw for the lead.]

Suit Challenges School's Refusal To Permit Distribution of Bibles

A lawsuit was filed in federal district court in Florida yesterday by a group known as World Changers that was refused permission to hand out Bibles in Collier County, Florida high schools. The complaint (full text) in World Changers of Florida, Inc. v. District School Board of Collier County, Florida, (MC FL, filed 7/1/2010), alleged that in the 2006-07 and 2007-08 school years it was permitted to set up a table on Religious Freedom Day to make Bibles available to students who wished to take them, and 1000 to 2000 students did. However, under a new policy, permission was refused for the 2008-09 school year. The new policy required a determination by a committee of administrators that distribution of literature by outside groups "promote student interests." The suit seeks an injunction, and a declaratory judgement that the school policy is an unconstitutional prior restraint on free speech, that it delegates standardless discretion to the Superintendent, that it is a content and viewpoint based restriction that violates plaintiff's free exercise and equal protection rights. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Overly Broad Zoning Ordinance Is Prior Restraint On Expressive Religious Use of Land

Adhi Parasakthi Charitable, Medical, Educational and Cultural Society of North America v. Township of West Pikeland, (ED PA, June 23, 2010), involves various challenges to actions of a zoning board in a Chester County, Pennsylvania township effectively denying zoning approval to a Hindu group for construction of a temple and auxiliary building. A Pennsylvania federal district court held that "in granting an overly broad amount of discretion to its Zoning Board in deciding whether to allow expressive religious use of land within the Township, Defendant has created a prior restraint on speech in violation of Plaintiff's First Amendment rights."

On plaintiff's free exercise and RLUIPA claims, the court held that there are factual disputes which a jury must decide as to whether the Township's zoning law was applied discriminatorily. The court rejected equal protection and due process claims brought by plaintiffs. Some of plaintiffs' proposed construction violated a restrictive covenant on the property. The court held that plaintiffs lacked standing to bring a RLUIPA challenge to the Zoning Board's enforcement of the restrictive covenant, since any burden on plaintiff's free exercise of religion is caused by the restrictive covenant and not by Zoning Board action.

NY City Council Saves Concerts As Court Enjoins Them For Being Too Close To Synagogues

The New York Post and the Brooklyn Eagle report that a Brooklyn court yesterday issued a temporary injunction against the long-running summer concert series in Coney Island's Asser Levy Park. Two synagogues sued, claiming that the concerts violate a city ban against amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. The suit is part of a broader effort to stop development of a $64 million amphitheater project for the park. (See prior posting.) However City Council this week took action to save the summer concert series. It passed a law, which the mayor intends to sign, creating a 90-day pilot program under which amphitheaters, open air band shells and stadiums the right to get permits for concerts even if they are in violation of the 500-foot rule. The bill expires in 90 days, but drafters hope that a permanent solution will be worked out by then.

Appeal Filed In Delaware School Board Invocation Case

Today's Delaware Online reports that an appeal has been filed with the Third Circuit in Doe v. Indian River School District. In the case, a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis, or if the board member prefers, a moment of silence. The district court applied precedent relating to prayers opening sessions of legislative bodies. (See prior posting.)

Ecclesiastical Abstention Doctrine Does Not Bar Negligent Supervision Claim Against Church

In Erdman v. Chapel Hill Presbyterian Church, (WA Ct. App., June 29, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine does not bar a church employee's claim for negligent supervision and retention claims against a church based on alleged physical intimidation and verbal abuse by its pastor. Plaintiff, a Church elder employed as the Church's Executive for Stewardship, was in a dispute with the pastor over whether tours of religious and historical sites led by him jeopardized the church's tax exempt status. Nor are plaintiff's Title VII claims for sexual harassment. However the court dismissed various other claims by plaintiff.