Church Sues Challenging Georgia City's Zoning Law

Last month, a church in Avondale Estates, Georgia filed a federal lawsuit challenging both on their face and as applied the city's zoning ordinance which requires churches to obtain a conditional use permit in order to locate anywhere in the city. The ordinance also requires religious institutions to be located on at least 3 acres and have 100 feet of public street frontage. The complaint (full text) in Christ Liberty Family Center v. City of Avondale Estates, Georgia (ND GA, filed July 23, 2010), alleges that the city allows other similar non-religious assembles in four of its districts-- including the central business district where the church leased property -- without requiring this type of permit or imposing the same acreage and frontage requirements. The suit alleges that the ordinance violates RLUIPA, the First and 14th Amendments and the free exercise provisions of the Georgia constitution. Plaintiff has also filed a motion for a preliminary injunction, including a memorandum in support. (Full text). Alliance Defense Fund issued a press release on the case.

Church-State Expert From Now Defunct AJCongress Hired By American Jewish Committee

JTA yesterday reported that following the suspension of activities by the American Jewish Congress, largely for financial reasons (see prior posting), its long-time general counsel and co-executive director, Marc Stern, has been hired by AJCongress' traditional rival, the American Jewish Committee. Stern, who was with AJCongress for 33 years, is known for his expertise on church-state issues as well as on the international law of warfare and other constitutional matters. American Jewish Committee yesterday issued a press release announcing the move. A spokesman said that Stern's hiring has no connection to rumored merger talks between the two groups, and that no merger talks are now going on.

Tajikistan Tries To Keep Control Over Muslim Education

Radio Free Europe today reports on efforts by the government of Tajikistan to keep control over Islamic education in the country. All teachers must be licensed by the state, and the government regularly conducts raids on mosques and private homes where they suspect unlicensed classes are being held or underground madrassahs have been created. Government officials say their actions are aimed at preventing the spread of religious extremism, but they have been widely criticized as violating religious freedom.  Apparently demand for religious classes outstrips the supply of state-approved schools. So the Education Ministry recently introduced a course in Knowledge of Islam into state schools. Religious leaders say these once-a-week classes are not enough. Many parents send their children to unofficial classes in homes of local mullahs and local mosques because they are convenient and free.The country's 20 official madrassahs charge tuition and offer a range of secular courses as well as religious ones.

Canada Orders Investigation After Veiled Women Permittted To Board Plane Without Facial Identification

Canada's Transport Minister John Baird said on Sunday (full text of statement ) that he has ordered an investigation of whether airlines are properly applying the country's Identity Screening Regulations after the media reported widely on a YouTube video showing two veiled women boarding a plane in Montreal without being asked to show their faces.  CTV News (which links to the video) reports that it was posted on YouTube under the caption: "A major Canadian airline risks your safety, pandering to Muslim sensibilities." Many viewers of the clip on YouTube wrote inflammatory comments.

3rd Circuit Says Prison Can Bar Muslim Women Employees From Wearing Khimars

In Equal Employment Opportunity Commission v. The Geo Group, Inc., (3d Cir., Aug. 2, 2010), the 3rd Circuit held, in a 2-1 decision, held that a private company which operated a prison under contract with the state did not violate Title VII of the 1964 Civil Rights Act when it refused to accommodate Muslim women employees by allowing them to wear khimars (Muslim scarfs). Geo policy permitted hats or other head coverings only if they were issued with a uniform.  The majority affirmed the grant of summary judgment for Geo, concluding that while this is a close case, the policy should be upheld.  It relied on testimony that the khimar posed a risk because it could be used to smuggle in contraband, it can be used to conceal the identity of the wearer, and it could be used against a prison employee in an attack. Judge Tashima dissented, contending that the majority "makes a shambles of our Title VII religious accommodation jurisprudence." He argued that on the basis of the record, a reasonable jury could find that GEO did not make a good faith effort to reasonably accommodate plaintiffs religious practices. AP yesterday reported on the decision.

Backing of Geert Wilders' Party Is Key To New Coalition Government Agreement In Netherlands

Bloomberg News reports that in the Netherlands, after seven weeks of deadlock, a preliminary agreement to form a government was finally been reached when Geert Wilders' anti-immigrant Freedom Party delegates agreed to back a minority government of Liberals and Christian Democrats.Wilders is known for his anti-Muslim statements and his attempts to limit the influence of Islam in the country. (See prior posting.) Wilders will not hold a ministerial position in the government, and will thus remain free to continue to promote his anti-Islamic views.

Paper Begins Series on the Catholic Church In Cuba

Yesterday's National Catholic Register carries the first in a three-part series on the Catholic Church in Cuba. The Church is the only national institution that functions independently of the government. In the 1960's, the government confiscated Church properties. However in the 1990's the government's attitude toward the Church began to change, culminating in a Papal visit by Pope John Paul.  The article summarizes the situation:  "Since 1998, the regime has alternated between allowing, even endorsing, Catholic expressions of identity and belief and brutally persecuting Christians who ask for more freedom — against the backdrop of a populace mostly concerned with financial survival."

Trial Set To Start In Long-Pending Establishment Clause Challenge To "Waldorf" Schools

Today's Sacramento Bee reports that a federal court trial is scheduled to begin Aug. 31 in a challenge to two Northern California school districts that have created "Waldorf" schools. The lawsuit, originally filed in 1998 has gone through a number of appeals. It alleges that "Waldorf "schools violate the Establishment Clause as well as church-state separation provisions of the California Constitution. Twin Ridges School District opened a Waldorf-inspired charter school in 1995; a Sacramento elementary school was converted to Waldorf Methods in 1996. According to a 1998 press release from People for Legal and Nonsectarian Schools (PLANS), the group which filed the lawsuit:

Waldorf schools were founded in 1919 in Stuttgart, Germany, by Austrian-born New-Age guru Rudolf Steiner (1861-1925). After Steiner's attempt to found a spiritually-oriented political party had failed, he turned to education as a way to carry on his work by preparing souls for reincarnation as the leaders of the next epoch of history. There are now over 500 private Waldorf schools world-wide, including about 150 in the U.S., with philosophical guidance from the international Anthroposophical Society centered in Dornach, Switzerland. In recent years Rudolf Steiner College, a teacher training seminary in Fair Oaks, CA, has led a campaign to establish Waldorf programs in public schools. The charter school movement has accelerated this process.

Parental interest in Waldorf schools is growing, and Sacramento opened a small public high school based on the system three years ago. Proponents say Waldorf is a holistic approach to education that has art infused into the curriculum.

Fired Rastafarian Prison Guards Sue Alleging Discrimination

Saturday's Philadelphia Inquirer reported on a lawsuit filed by three former prison guards who are followers of the Rastafarian faith against Community Education Centers that operates Delaware County's (PA) prison. The guards were fired after they refused for religious reasons to cut their hair, in violation of the prison's grooming policy. The guards argue that they should be allowed to put their hair up in buns, as women correctional officers are permitted to do. Their lawsuit charges religious, sexual and racial discrimination.

Recent Articles of Interest

From SSRN:

• Christina E. Wells, Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment, (University of Missouri School of Law Legal Studies Research Paper No. 2010-14, July 27, 2010).
• Jeff Redding, Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems, (Journal of Islamic State Practices in International Law, Vol. 6, No. 1, 2010).
• Robert C. Blitt, One New President, One New Patriarch and a Generous Disregard for the Constitution: A Recipe for the Continuing Decline of Secular Russia, (University of Tennessee Legal Studies Research Paper No. 107, July 27, 2010).
• Victor M. Muniz-Fraticelli, The Problem of Pluralist Authority, (July 28, 2010).
• Anita L. Allen, Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice?, (U of Penn Law School, Public Law Research Paper No. 10-25, July 27, 2010).
• Simon Butt, Islam, the State and the Constitutional Court in Indonesia, (Pacific Rim Law & Policy Journal, Vol. 19, No. 2, pp. 279-301, 2010).

From SmartCILP:

• Tim Newton, Has Evolution Disproved God?: The Fallacies in the Apparent Triumph of Soft Science, 4 Liberty University Law Review 1-95 (2009).

Israeli Government Wants Church of Holy Sepulchre To Pay Water Bills-- But Legal Complications Exist

Asia News reported Friday that in Israel, authorities in Jerusalem want the church of the Holy Sepulchre to begin paying for water that has traditionally been supplied to it without charge and, in addition, to pay for past water usage back to 1967.  Authorities threaten to cut off the church's water supply if  the bills are not paid.  Historically since at least 1917 the British Mandatory Government, the Jordanians and then the Israelis have supplied water to the church free of charge. There are also significant legal issues regarding exactly who is responsible for the bills. While government notices have been sent to "the church of the Holy Sepulchre," no such entity exists. Instead, under a complicated status quo agreement, use of the church is divided among numerous groups. As summarized by Wikipedia: "The primary custodians are the Eastern Orthodox, Armenian Apostolic, and Roman Catholic Churches, with the Greek Orthodox Church having the lion's share. In the 19th century, the Coptic Orthodox, the Ethiopian Orthodox and the Syriac Orthodox acquired lesser responsibilities, which include shrines and other structures within and around the building. Times and places of worship for each community are strictly regulated in common areas." All of this means that if the Israeli government is serious, it will have to reach agreements with the various groups about splitting the cost of water used in the common areas, and will have to install separate water meters in other parts of the building.

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.]