Lawsuit Challenges LA's Enforcement of Limits On Pot Dispensaries Against Rastafarian Temple

In Los Angeles, California last week, a state court lawsuit was filed by marijuana activist Ed Forchion (also known as NJWeedman) seeking to prevent the enforcement of the city's recently enacted Ordinance 181069 against his Rastafarian Temple. As described by NORML, the new ordinance seeks to limit the number of legally zoned pot dispensaries to fewer than 100. The complaint (full text) in Liberty Bell Temple II v. City of Los Angeles alleges that Rastafarians smoke marijuana as part of their religious rituals. Earlier this month, Los Angeles police raided Forchion's Rastafarian temple, seized marijuana it found there along with other items, and charged Forchion and Charquant Leyou with violating the Los Angeles Municipal Code. The lawsuit alleges that "The action of enforcement that occurred on July 14, 2010 are [sic.] clear violations of the Religious Freedom Restoration Act (RFRA) 42 U.S.C. 2000bb and the California Constitution's right to Due Process under the law." A press release issued by Forchion yesterday says in part: "I left the restrictive confines of the state of New Jersey to enjoy a new found freedom here in California. Per my now famous Hollywood Hemp Mansion Parties, I have been trying to live a good life and leave behind my days of activism, but this new assault on my rights now leaves me no choice but to legally battle coast to coast!"

Estate of Suicide Victim Sues Catholic Diocese For Negligence

AP reported Friday that the estate of a priest abuse victim who committed suicide has filed a lawsuit in a Pennsylvania state court against the Roman Catholic Diocese of Pittsburgh alleging that the suicide resulted from the diocese ending payments for mental health treatments of the victim.  39-year old Michael Unglo, abused as an altar boy in the 1980's, had attempted suicide twice before. The suit, seeking at least $50,000 in damages, alleges negligence on the part of the diocese which says it has already spent $300,000 for Unglo's treatment. The diocese continus to pay health insurance costs and a stipend for the former priest who has been convicted for molesting another boy.

Recent Prisoner Free Exercise Cases

In Smith v. Thompson, 2010 U.S. Dist. LEXIS 74666 (ED KY, July 23, 2010), a Kentucky federal district court rejected a prisoner's free exercise, RLUIPA and other challenges to a prison policy that prevents him from wearing his wedding right that contains stones which are contraband. Plaintiff alleged that he and his wife, as members of the African Methodist Episcopal Church, have entered into holy vows that  prohibit the removal and/or substitution of rings exchanged during their wedding ceremony. Among other things, the court concluded that plaintiff's contentions were not consistent with church doctrine.

In Rodriguez v. Wells, 2010 U.S. Dist. LEXIS 76764 (SD GA, July 29, 2010), a Georgia federal district court adopted a magistrate's recommendations (2010 U.S. Dist LEXIS 76770, June 30, 2010) and dismissed claims by a prisoner that the state prison system should offer kosher meals consistent with Jewish and Muslim dietary restriction. It also held that plaintiff had failed to exhaust his administrative remedies in objecting to being disciplined for boycotting three specific meals as part of a group demonstration. In a related case, Eraso v. Wells, 2010 U.S. Dist. LEXIS 76762 (SD GA, July 29, 2010), the court also adopted the magistrate's recommendations (2010 U.S. Dist. LEXIS 76760, June 25, 2010) and held that a complaint about lack of kosher food could not properly be raised in a habeas corpus proceeding, and in any case plaintiff had failed to exhaust administrative remedies.

In McCoy v. Frazier, 2010 U.S. Dist. LEXIS 76702 (ED VA, July 2, 2010), a Virgina federal district judge dismissed an inmate's free exercise challenge to a prison security rule that precludes Muslim prisoners from praying (or otherwise speaking) in Arabic (which their supervisor cannot understand) when the service includes inmates from different housing units and different security levels.

In Allen v. White, 2010 U.S. Dist. LEXIS 75884 (WD OK, July 27, 2010) a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 75665, April 22, 2010), and denied without prejudice a preliminary injunction to an inmate who wanted a Mesoamerican diet which conforms with his Aztec/Santeria beliefs, as well as ritual items, including incense, drums, animal pelts, and materials to build a fire pit, and certain books that are required by such beliefs. He also sought an injunction to prevent authorities from retaliating against him by transferring him to another institution. The court also denied his request to appoint counsel.

In Funderburk v. Nevens, 2010 U.S. Dist. LEXIS 75171 (D NV, July 26, 2010), a Nevada federal district court held that prison authorities had adequately accommodated plaintiff's participation in the Ramadan fast by providing pre-dawn and post-sunset meals.

In Jones v. Correctional Care Solutions, 2010 U.S. Dist. LEXIS 74647 (D SC, July 23, 2010), a South Carolina federal district court adopted a magistrate's recommendations and dismissed an inmate's objections to the fact that inmates observing Ramadan receive only snacks in addition to the dinner tray rather than an additional full lunch tray as well to eat then.

In Rouser v. Tilton, 2010 U.S. Dist. LEXIS 74629 (ED CA, July 23, 2010),a California federal magistrate judge in a recommendation to the court rejected claims by a Wiccan inmate regarding various interferences with his ability to practice his religion. Among other things, the opinion held that claims under RLUIPA for monetary damages are not available in personal capacity suits against officials and are barred by the 11th Amendment in official capacity suits.

In Sherman-Bey v. Marshall, 2010 U.S. Dist. LEXIS 74558 (CD CA, July 22, 2010), a California federal magistrate judge rejected objections by an inmate who is a member of the Moorish Science Temple of America to a prison ban on wearing of red clothing (except in sporting events). Plaintiff wanted to obtain a red fez, while prison rules permitted only white or gray ones. It also rejected complaints that there were no services, separate from Muslim ones, for Moorish Science adherents, and that prison rules permitted only five kinds of scented oils. The decision however granted plaintiff the right to file an amended complaint.

School Conservator's Remark In Firing Principal Did Not Violate Establishment Clause

In Brown v. North Panola School District, 2010 U.S. Dist. LEXIS 76419 (ND MS, July 28, 2010), the former principal of Como Elementary School in Como, Mississippi challenged on various First Amendment and other grounds her firing by a state Conservator who was appointed to take over the low-performing school district that included the school. The court rejected the argument that a comment the Conservator made when informing plaintiff of her non-renewal as principal violated the Establishment Clause.  The Conservator told plaintiff: "when God moves someone from one place, doors are opened in others and some things happen for the good." The court concluded that this "stray remark" did not amount to the state endorsing the Conservator's religious views.

Methodist Minister, Reform Rabbi Co-Officiate At Clinton-Mezvinsky Wedding

UPI reports on the Rhinebeck, New York wedding earlier this evening of Mark Mezvinsky and Chelsea Clinton, daughter of former President Bill Clinton and Secretary of State Hillary Rodham Clinton. Speculation over the nature of the wedding ceremony that would join together interfaith couple ended as it was announced that Methodist minister William S. Shillady and Rabbi James Ponet co-officiated. Shillady is executive director of the United Methodist City Society. Ponet, a Reform rabbi, is Jewish chaplain at Yale University and heads Yale's Joseph Slifka Center for Jewish Life. The United Methodist Church leaves the question of mixed-faith ceremonies to local pastors and allows ministers to adapt the wedding ceremony to some extent. (See prior posting.) Reform rabbis may decide as a matter of individual conscience whether or not to officiate at interfaith marriages, though the Reform movement's rabbinical organization opposes participation in mixed marriage ceremonies. (FAQ from Union for Reform Judaism). UPI also reported that the wedding menu included vegan fare for Chelsea Clinton. Of course that would also satisfy concerns of some Jewish participants who observe Kosher dietary laws.

ADL Surprisingly Opposes Islamic Center Near Ground Zero

The New York Times reports that in a surprising move yesterday, the Anti-Defamation League came out in opposition to the proposed building of an Islamic center and mosque two blocks from Ground Zero in lower Manhattan, calling instead for an alternative location to b e found.. (Full text of ADL statement). Supporters of the planned $100 million complex that will contain prayer space, a performing arts center, a pool and a restaurant, see it as an attempt to build a national model of moderate Islam. However, the proposal has become increasingly controversial, especially as Republicans around the country began to use it as a campaign issue.  Sarah Palin has called it an "unnecessary provocation." While the ADL continued to criticize opposition based on religious bigotry, now ADL national director Abraham Foxman says that the location is offensive to families of 9-11 victims. He remarked: "Their anguish entitles them to positions that others would categorize as irrational or bigoted." According to the Times, the ADL's statement could constitute "a turning point in the battle over the project." Among those highly critical of the ADL's new statement is columnist Paul Krugman.

New Jersey Commission Supports More Aid To Non-Public Schools

On July 20, New Jersey Gov. Chris Christie released the report of the Governor’s Study Commission on New Jersey’s Nonpublic Schools. Titled Quality Education for All of New Jersey’s Children: The Importance of Supporting the Complementary Relationship Between New Jersey’ s Public and Nonpublic Schools, the report recommends a number of steps to enhance aid to students in private schools, including various tax credits and scholarships. Concluding that its recommendations can be carried out in a manner consistent with case law on aid to religious schools, the  report says:

Between 2004-2009 nonpublic enrollment declined 29,810 – and those students entered the public system at a cost of approximately $430-490 million to the taxpayer this year. Taxpayers cannot sustain the impact of that, proven by the fact that the state budget this year cut from education spending almost that exact amount. That is not a coincidence: it is a consequence.

Yesterday's New Jersey Jewish Standard summarizes the commission's recommendations.

University of Illinois Keeps Catholic Thought Prof At Least For Next Semester

Yesterday's Chronicle of Higher Education reports that the University of Illinois at Urbana-Champlain will retain an adjunct professor who teaches courses on Introduction to Catholicism and Modern Catholic Thought pending completion of a review by a faculty Committee on Academic Freedom and Tenure. Earlier the University had indicated it would not keep Kenneth Howell on in a teaching position this fall, apparently in reaction to a student complaint that an e-mail sent by Howell explaining how homosexual conduct would be viewed under natural law theory amounted to hate speech. (See prior posting.) That University decision led to a barrage of e-mails protesting the action. While the University will retain Howell for the coming semester, at the same time it is changing the arrangement under which Howell's $10,000 salary came from the church-supported Newman Center, which also selected instructors who would teach Catholic studies courses.

6th Circuit Denies En Banc Review In Ten Commandments Case

The U.S. 6th Circuit Court of Appeals yesterday denied en banc review in ACLU of Kentucky v. McCreary County (full text of court order). In the case, a majority of a 6th Circuit panel (see prior posting) approved issuance of a permanent injunction against display of the 10 Commandments along with other historical documents that refer to God in two Kentucky county court houses. In 2005, the U.S. Supreme Court found the display violated the Establishment Clause, but later litigation focused on whether the counties had changed their religious purposes for the display. A majority of the panel agreed with the district court that resolutions adopted in 2005 were adopted only as a litigating position. However the panel decision produced three separate opinions. [Thanks to Peter Irons for the lead.]

Swiss Schools Fine Muslim Parents Who Refuse Mixed Swim Classes For Young Girls

Today's Sydney Morning Herald in a story from AFP reports that authorities in Basel, Switzerland have fined five Muslim families that have refused on religious grounds to permit their daughters, all under ten years of age, to attend compulsory mixed-gender swimming classes. The schools offer separate classes for boys and girls who have reached the age of puberty, but the head of the city's education department says that mixed classes for younger children were justified after consultations with religious organizations. Each family was fined 350 Swiss Francs ($335 US).

EEOC Says Store Should Have Accommodated Jehovah's Witness' Beliefs

The Charlotte (NC) Business Journal reports that the EEOC yesterday filed a lawsuit against Belk, Inc. in a North Carolina federal district court charging religious discrimination by one of Belk's stores in Raleigh (NC). The suit alleges that Belk wrongfully fired employee Myra Jones-Abid after she refused to wear a Santa hat and apron while working in the store's gift wrapping section. Jones-Abid is a Jehovah's Witness. Her religion prohibits celebration of holidays, including birthdays and Christmas. The EEOC claims that Belk had an obligation to accommodate Jones-Abid's religious beliefs.

Bangladesh Supreme Court Appellate Division Restores Constitutional Provision On Secularism

The Financial Express reports that on Tuesday, the Appellate Division of Bangladesh's Supreme Court upheld, with certain modifications, a High Court decision that declared illegal the Fifth Amendment to Bangladesh's Constitution. The decision restores various articles of the 1972 Constitution, including those that affirm principles of secularism. According to the Financial Express:

The verdict paves the way for restoration of Article 12 of the original Constitution that says: The principle of secularism shall be realized by the elimination of - (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or prosecution of persons practising a particular religion.

The verdict makes way for dropping clause (2) of Article 25 that says the State shall endeavour to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.

Following the verdict, Article 38 with proviso will be restored. Article 38 says "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: "Provided that no persons shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has or its object, or pursues, a political purpose."

The Financial Express reports separately that Bangladesh's Parliament has created a 15-member committee to prepare a draft amended Constitution to comply with the Court's order. DNA India reports however that Parliament is unlikely to ban ban religious parties or drop the Islamic verse "Bismillahir Rahmani Rahim" from the preamble of the constitution (See prior related posting.)

Settlement Reached In High Schooler's Suit Against Science Teacher Who Taught Religion In Class

Today's Columbus (OH) Dispatch reports on the settlement of a federal lawsuit brought by the family of a high school student against Mount Vernon, Ohio high school teacher John Freshwater. The lawsuit alleged violations of the Establishment Clause. Copies of the Ten Commandments were posted in Freshwater's classroom. He kept his personal Bible on his desk, and a box of Bibles were stored in the back of the classroom for use by the school's Fellowship of Christian Athletes for which Freshwater served as faculty advisor. The student also alleged a battery growing out of an experiment with a Tesla coil which allegedly left a mark on his arm in the shape of a Christian cross. (See prior posting.) Attorneys for the insurance carrier for the school and teacher have not released details of the settlement, which must still receive court approval. Currently Freshwater is on administrative leave, fighting attempts of the school board to fire him for teaching religion in his science class.

New Zealand Jewish Community Preparing To Sue Over Ban On Kosher Slaughter

JTA today reports that the Jewish community in New Zealand is preparing to file a lawsuit challenging the government's recent decision refusing to exempt kosher slaughter from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed. (See prior posting.) Attempts to convince the Agriculture Minister to reverse the ban have not succeeded. The lawsuit will likely claim that the ban violates religious freedom protected by New Zealand's Bill of Rights Act . The Animal Welfare Act of 1999, Sec. 73, provides that in proposing a Code under the Act, the National Animal Welfare Advisory Committee is to consider, among other things, the requirements of religious and cultural practices.

Atheist School Proposal Welcome Under Britain's New Education Policy

Yesterday's London Telegraph reports that Britain's Education Secretary Michael Grove says he would be interested in looking at proposals by individuals such as atheist Prof. Ricard Dawkins for the creation of a "free thinking" school. Around one-third of the government funded schools in Britain are faith schools. The government has published a plan to give parents' groups, teachers and charities powers to open their own schools at taxpayers' expense. Saying that an atheist school would not be his personal preference, he emphasized that nevertheless it is consistent with the new policy of providing the greatest degree of choice to parents.

Most of University's Speaker Policy Survives Facial Challenge By Christian Preacher

In Sonnier v. Crain, (5th Cir., July 27, 2010), the 5th Circuit Court of Appeals , in a 2-1 decision, rejected a facial challenge to most parts of Louisiana State University's speaker policy, applying the test that a facial challenge will succeed only if there is no set of circumstances under which the policy would be valid. In a suit brought by an itinerant Christian preacher who wanted to deliver a religious message to students, the court upheld the denial of a preliminary injunction to prevent enforcement of (1) the school's seven-day advance notice requirement for a permit; (2) a two-hour, once-per week limitation for each speaker or organization; (3) the collection of personal information before issuing a permit; and (4) the limitation of speech to three specific campus locations. However it enjoined enforcement of the school's requirement that speakers pay a security fee at the discretion of the University.

Judge Dennis dissented arguing that at the preliminary injunction stage, the court should have considered the speech policy as applied as well as the facial challenge to it.  He concluded that all portions of the policy were unconstitutional as applied to plaintiff.  He also argued that the majority used the wrong test in determining facial validity. Finally he concluded that the University's restrictions are not narrowly tailored to serve a significant governmental interest.

77' Cross Goes Up In Texas Subdivision Prayer Garden

Following a settlement last March of a lawsuit attempting to prevent The Coming King Foundation (TCKF) from placing a 77-foot tall cross in a Kerrville, Texas subdivision (see prior posting), on Tuesday the $2 million, 70-ton sculpture was erected overlooking Texas I-10, half way between the Atlantic and Pacific Oceans. A press release from TCKF says the sculpture called The Empty Cross, which is part of a 23-acre sculpture prayer garden, will be admission free. However, over $2 million still needs to be raised in order to build a parking lot entrance and interior roads that will allow the park to be opened to the public. In the meantime, guided tours are available, as is live streaming video of the Cross.

Court Upholds Dismissal of Counseling Student Who Would Not Counsel Gays

In Ward v. Wilbanks, (ED MI, July 26 2010), a Michigan federal district court upheld Eastern Michigan University's dismissal of a student from its graduate program in counseling because of her objections to counseling clients on their same-sex relationships, in violation of professional counseling standards. Julea Ward's Christian beliefs precluded her from affirming relationships which she believed were inconsistent with Biblical teachings. The court concluded that the university's policy is not a speech code, but is an integral part of the curriculum. It held that in a university setting, restricting or compelling speech that occurs in a classroom as part of the curriculum will be upheld so long as it serves a rational pedagogical purpose. According to the court:

The University had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program. Furthermore, the University had a rational basis for requiring its students to counsel clients without imposing their personal values. In the case of Ms. Ward, the University determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs - including homosexual relationships. The University offered Ms. Ward the opportunity for a remediation plan, which she rejected. Her refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.

Additionally, the court rejected Ward's free exercise and Establishment Clause claims:

Plaintiff was not required to change her views or religious beliefs; she was required to set them aside in the counselor-client relationship – a neutral, generally applicable expectation of all counselors-to-be under the ACA standard.

It concluded that the program requirements were secular in purpose and effect and did not involve excessive entanglement. It went on:

Although plaintiff’s complaint that defendants demonstrated hostility, arrogance, and offensiveness during the formal and informal reviews is well taken, the court finds that neither this behavior nor the curriculum requirements satisfy the level of hostility required to establish a religion of secularism....

Finally the court rejected plaintiff's equal protection claim:

Both sides’ positions eventually hardened due to the confrontational atmosphere, culminating in the “theological bout” during the formal hearing. Nevertheless, the court does not perceive any maliciousness in defendants’ behavior amounting to a constitutional violation.

Alliance Defense Fund which represented the student said in a release yesterday that it would appeal the decision. (See prior related posting.) Today's Inside Higher Ed reports on the decision.

ACLU FOIA Request Seeks To Uncover FBI "Muslim Mapping"

In a press release yesterday, the ACLU announced coordinated Freedom of Information Act requests in 29  states and the District of Columbia asking the FBI  to release records on its collection and use of information on ethnic-oriented businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations. According to the Los Angeles Daily News, an ACLU staff attorney said that it fears the FBI engaging in "Muslim mapping," the "singling out individuals for investigation, surveillance, and data-gathering based solely on their religion or ethnicity."

9th Circuit Says Ghanaian Baptist Preacher Entitled To Asylum

In Afriyie v. Holder, (9th Cir., July 26, 2010), the 9th Circuit held that a citizen of Ghana should have been granted asylum in the United States based on his persecution in Ghana by private parties who objected to his proselytizing as a Baptist preacher in predominately Muslim areas of the country. Persecution by private parties is a basis for asylum if the government is unable or unwilling to control the persecution. The court concluded that reporting persecution to the government is not essential to demonstrating that the government is unable or unwilling to protect a person from private actors. It is enough to show a lack of police resources that result in the police being unable to provide protection. The court also remanded for further findings appellant's claim for relief under the Convention Against Torture. Courthouse News Service reports on the decision.