Suit Seeks To Enforce FOIA Request For FBI Records on Surveillance of Muslims

The ACLU of Northern California, the Asian Law Caucus and the San Francisco Bay Guardian yesterday filed a lawsuit against the FBI seeking to enforce Freedom of Information Act requests filed in July asking for records relating to the surveillance of Muslim communities in California. (See prior posting.) The complaint (full text) in ACLU of Northern California v. FBI, (ND CA, filed 8/24/2010), argues that the government surveillance at issue impacts fundamental First Amendment rights of free exercise of religion, freedom of association and freedom of expression. The ACLU announced the filing of the lawsuit in a press release. Illume yesterday reported on the lawsuit.

9th Circuit Reinstates Evangelist's Defamation Claim Against ABC's 20/20

In Price v. Stossel, (9th Cir., Aug. 24, 2010), the U.S. 9th Circuit Court of Appeals reversed a California district court's early-stage dismissal under California's anti-SLAPP statute of a defamation claim by a prosperity gospel evangelist. Dr. Frederick Price brought an action against ABC television correspondent John Stossel and others involved in producing the show 20/20.  On the show, Stossel showed a clip of a sermon by Price in which Price describes a person with substanital wealth. Out of context the show suggested Price was talking about himself when, in fact, the quote was about a hypothetical wealthy person who was spiritally unfulfilled. The 9th Circuit held that for purposes of an anti-SLAPP motion, the court should determine whether the clip as broadcast materially altered the meaning conveyed by the speaker. The district court had erroneously relied on the conclusion that the statement's meaning, while distorted by ABC, was still substantially true. In remanding to the district court, the 9th Circuit said it was expressing no opinion on whether plaintiff could show the other required elements of a defamation claim. OC Weekly yesterday reported on the opinion.

Bonfire Permit Denied To Group Seeking To Burn Qurans As 9/11 Protest

As previously reported, the Dove Outreach Center in Gainesville, Florida has created a furor by announcing its plans to host an International Burn A Quran Day on Sept. 11. The Gainesville Sun reported last week that the city has refused to grant Dove Outreach a permit to have an open bonfire. Under the city's fire code, outdoor burning is prohibited without a permit. This includes burning newspaper, corrugated cardboard, container board or office paper. The church says it will go ahead with the protest without a permit.

Preliminary Injunction Bars Application of Obama Administration Stem Cell Research Guidelines

Yesterday in Sherley v. Sebelius, (D DC, Aug. 23, 2010), the U.S. District Court for the District of Columbia issued a preliminary injunction preventing the Obama administration from applying it Guidelines for Human Stem Cell Research. Those Guidelines expanded federally funded research involving embryonic stem cells. The court concluded that plaintiff's had shown a likelihood of success on the merits on their argument that the Guidelines violate the Dickey-Wicker Amendment that prohibits the use of federal funds for research in which human embryos are destroyed.  The court rejected the government's attempt to distinguish between deriving stem cells from an embryo and conducting research on those stem cells.  The New York Times reports that there is confusion over whether the preliminary injunction impacts research projects already funded. (See prior related posting.)

Compromise Near To Drop Charges Against Westboro Funeral Protester

Sarpy County, Nebraska is close to reaching an agreement with Westboro Baptist Church leader Shirley Phelps-Roper that will lead to dismissing charges of negligent child abuse and disturbing the peace that have been brought against her.  The charges grew out of a 2007 protest at the visitation before the funeral of Iraq war veteran Randy Chaney. Westboro members picket veterans' funerals with signs protesting U.S. tolerance of homosexuality and other activities they consider sinful.  At the protest, Phelps-Roper's ten year old son was standing on an American flag. According to yesterday's Omaha World-Herald and a report from AP, charges of flag mutilation and contributing to the delinquency of a minor have already been dropped because a federal court declared the state's flag mutilation statute unconstitutional. Under the compromise being negotiated, Phelps-Roper will drop the lawsuit she has filed against three Sarpy County Attorneys who are prosecuting her seeking damages for violating her First Amendment rights. She will also drop Sarpy County from a pending federal lawsuit challenging the constituitonality of the state's funeral protest law. Phelps-Roper said: "The deal is 'You stop prosecuting us for our religion, and we'll stop suing you for prosecuting us for our religion'." The family of veteran Randy Chaney is unhappy with the county's decision to drop charges.

Bangladesh Court Says College May Not Require Religious Attire

According to yesterday's Jakarta Globe, Bangladesh's High Court has ordered the government to take action against the administrator of Rani Bhabani Women's College for requiring women to wear the burqa, and barring women from playing school sports and attending cultural activities.  The court held that no religious attire of any kind, including skull caps for men, can be required. This follows a decision by the High Court in April that women employed in public educational institutions may not be required to wear the veil, or hijab, against their will. (See prior posting.)

9th Circuit: World Vision Exempt From Title VII Religious Discrimination Ban

The 9th Circuit yesterday, in a 2-1 decision that spawned three lengthy opinions, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

In Spencer v. World Vision Inc., (9th Cir., Aug. 23, 2010), Judge O'Scannlain, writing the opinion for the court, formulated the test for the exemption as follows:

a nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.

Judge Kleinfeld concurring formulated the test somewhat differently:

To determine whether an entity is a “religious corporation, association, or society,” determine whether it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

Judge Berzon, dissenting, wrote:

Section 2000e-1(a) reflects Congress’s recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.

My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.

[Thanks to Ted Olsen via Religionlaw for the lead.]

Church Not Entitled To Tax Exemption When House It Owns Is Vacant

The LaCrosse (WI) Tribune reports that a federal district court has rejected a claim by Asbury Methodist Church in LaCrosse that its due process and free exercise rights were infringed when it was denied a tax exemption in 2008 while its property was being converted from a tax exempt parsonage to a tax exempt hospitality house.  Tax officials said that the house was vacant on Jan. 1, 2008 and so was not exempt for that year.  At issue were $4000 in property taxes.

UPDATE: Here is the full text of the opinion on LEXIS: Asbury United Methodist Church v. City of La Crosse, 2010 U.S. Dist. LEXIS 86744 (WD WI, Aug. 23, 2010).

Court Refuses Preliminary Injunction Against Georgia's Ban On Guns In Churches

On June 4 this year, Georgia's governor signed S.B. 308 that was enacted to clarify Georgia's gun laws. Among other things, the new law prohibits the carrying of guns in any house of worship. In July, GeorgiaCarry.org. along with Baptist Tabernacle of Thomaston, Georgia, its pastor and one of its members, filed a lawsuit in state court challenging that portion of the law. (See prior posting.) Along with the complaint, plaintiffs filed a motion for a preliminary injunction. Earlier this month, defendants removed the case to federal court. According to the Atlanta Constitution, the federal court yesterday refused to issue a preliminary injunction against enforcement of the ban. Plaintiffs say that worshipers want to arm themselves for protection, and the church agrees that they should be able to do so. Another argument being pressed by plaintiffs is that under the statute, the church's pastor is barred from bringing a weapon for protection when he is working alone or when he is in the pulpit. The suit raises both free exercise and Second Amendment challenges, and is probably the first suit filed after the U.S. Supreme Court in June in McDonald v. City of Chicago extended Second Amendment to state and local laws.

Debate on RFRA: Hamilton vs. Friedman

PublicSquare.net has posted a 4-part debate between Marci Hamilton and me on the Religious Freedom Restoration Act.  Actually the essays comprising the debate were written a number of months ago-- there was substantial delay in the exchange actually getting posted. So while a few of the references are dated, the basic thrust of the exchange is still relevant.

Kazakhstan Plans Offering of Shariah-Compliant Bonds

UAE's The National reported yesterday that the nation of Kazakhstan, planning its first issuance of government bonds in ten years, will issue Shariah-compliant bonds (Sukuk securities) instead of Euro bonds.  Kazakhstan is trying to become a regional Islamic finance center by 2020.

Suit Claims Religious Discrimination In Barring of Faith-Based Substance Abuse Program From County Jail

Yesterday's Santa Rosa (FL) Press Gazette reports that a federal religious discrimination lawsuit was filed Friday by Milton, Florida's First Apostolic Church seeking to prohibit Santa Rosa County Sheriff Wendell Hall from excluding the church's faith-based Alcohol and Chemical Treatment Series program from the Santa Rosa County Jail. The lawsuit alleges that the decision to remove the Church's volunteers from the jail was taken by the Santa Rosa County Inter Faith Board, and involves a "doctrinal dispute" over proper baptism rites.

Recent Articles of Interest

From SSRN:

• Peter G. Danchin, Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred, (Duke Forum for Law & Social Change, Vol. 2, pp. 5-38, 2010).
• Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits after Summum, (William & Mary Bill of Rights, Vol. 19, 2010).
• Geoffrey P. Miller, Consent of the Governed in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-56, Aug. 20, 2010).
• Patrick Macklem, Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe, (August 17, 2010).

From SmartCILP:

• Edward Rubin, Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause, 63 Vanderbilt Law Review 763-811 (2010).
• Glenn A. Trager, Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal Order [Abstract], 35 Law & Social Inquiry 339-367 (2010).

West Reacts Strongly To Stoning Sentences Under Islamic Law

In its Behind the News section, today's New York Times carries an article exploring the particularly strong reaction in Western countries to two recent cases of execution by stoning under Islamic law. In Afghanistan last week, the Taliban stoned a young couple to death for trying to elope.  Last month international protest arose over the stoning sentence imposed in Iran on a woman accused of adultery. Brazil offered the woman, Sakineh Mohammadi Ashtiani, asylum. Iranian authorities then redefined Ashtiani's crime as murder. Stoning is a legal punishment in Iran, Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria. However it is rarely imposed. Islamic law allows stoning only when four male eyewitnesses testify to the same conduct. Some non-Muslim societies, such as the Kurdish Yazidi, have also imposed the punishment.

Recent Prisoner Free Exercise Cases

In Vazquez v. Ragonese, (3d Cir., Aug. 18, 2010), the 3rd Circuit remanded to the district court for consideration under RLUIPA of a prisoner's claims that prior institutions have failed to forward certain religious items (including oil, soaps, tarot cards and a multi-colored beaded necklace) to him after he was transferred to another institution. The court also remanded for consideration of plaintiff's claim that he is not allowed to purchase or acquire materials he needs for his religious practices.

In Lightner v. Ausmus, 2010 U.S. Dist. LEXIS 85348 (D ID, Aug. 17, 2010), an Idaho federal district court held that the statute of limitations barred a civil rights action by a paroled sex offender who charged that his parole officer would not agree that he could attend a Baptist church, but only gave him permission to attend an LDS church.


In Maxwell v. Hobbs, 2010 U.S. Dist. LEXIS 84931 (ED AR, July 23, 2010), an Arkansas federal magistrate judge recommended dismissal of an inmate's complaint that his free exercise rights were violated when prison officials disapproved the Five Percenter Newspaper he was receiving concluding that it contained gang-related content.
 
In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 83006 (D CO, Aug. 12, 2010), a Colorado federal district court rejected a prisoner's claim that he was arbitrarily removed from the Common Fare diet and was not offered a comparable alternative to meet his Christian religious needs. The court concluded that plaintiff's adoption of a whole foods diet was for health reasons, rather than for religious reasons. To the extent there were later religious reasons, plaintiff failed to show that this imposed a substantial burden on his free exercise of religion. Beyond this, the claim was barred by the statute of limitations. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 83693, June 22, 2010. The prisoner who filed the case was Oklahoma City bomber Terry Nichols. (AP report).
 
In Marksberry v. Strode, 2010 U.S. Dist. LEXIS 82482 (WD KY, Aug. 2, 2010), a Kentucky federal district court held that an inmate's 1st Amendment rights were not violated when when a prison official referred to his Rastafarian religious head covering as a "clown hat." In a second case involving a claim by the same prisoner, 2010 U.S. Dist. LEXIS 82481 (WD KY, Aug. 3, 2010), the same judge held that plaintiff's 1st Amendment rights were not violated by a 5-day delay in furnishing him a vegetarian diet and permitting him to wear his "crown" head covering. It also held that the claim is time barred.

Westboro Leader In Interview Justifies Picketing Of Soldiers' Funerals

The Huffington Post on Friday carried an interview by investigative reporter Joshua Kors of Pastor Fred Phelps of the Westboro Baptist Church in which Phelps justifies his group's confrontational picketing of veterans' funerals and other venues. Here are a few excerpts:

Phelps: The mission of the church is to preach to a doomed world, to let them know about the second coming of Jesus. It's not going to be pretty. Look at the world of Noah. In his day there were 12 to 16 billion people on Earth, and only eight got out of that flood alive. The world is going to be devoured by fire. ...

The message we have is simple: the sodomites have taken over the country, and this country has given itself over to immorality. We want to warn the nation, let them know that God is not going to let this country get by with that kind of degeneracy. So what's the right forum to preach that message?

Kors: People would say funerals are not the right forum. And why soldiers' funerals?

Phelps: Soldiers' funerals are the right place. The Lord has killed him. The soldier shouldn't be there dead. But this is the God that delivered ten different plagues -- and nothing worked. So here we are....

Kors: What happens to homosexuals when they die?

Phelps: These fags are going to hell. And I'm supposed to be quiet about that? I'm supposed to get lockjaw? The Bible's just full of hell, the wrath of God.

Kors: On TV, in movies, hell is always portrayed as full of flames and snakes.

Phelps: That's right. Hell is the place where the worm eats on fags, and the fire is never quenched. Indescribable pain. The Lord Jesus said that. And he knows because he's had a front row seat since the creation of Adam. What you need to do is get a Bible and look up Luke, Chapter 16. These fags are going to hell, and instead of squawking like crybabies, they ought to be so thankful that at no expense to them, we've dedicated time and resources to preach to them. People say we're "disturbing the peace." Don't you understand: we've done 40,000 of these pickets, and we'd be in jail if we were disturbing the peace.

Court Enforces Restrictive Covenant To Bar Construction of Chabad Center

In Criscenzo v. Chabad-Lubavitch of  the Shoreline, Inc., (CT Super. Ct., Aug. 13, 2010), a Connecticut trial court judge enforced a restrictive covenant in a deed to bar Chabad Lubavitch from building a Chabad center to be used as a synagogue, school and activity center on residential property in the town of Guilford.  The Guilford Planning and Zoning Commission had granted a special permit for the construction. The court rejected challenges to plaintiffs' ability to bring the challenge as well as a claim of change of circumstances. The New Haven Register reported on the decision yesterday.

Magistrate Rejects Challenge To North Dakota Ten Commandments Monument

In Red River Freethinkers v. City of Fargo, (D ND, Aug. 16, 2010), a North Dakota federal magistrate judge recommended that a lawsuit seeking removal of a Ten Commandments monument from the civic plaza, land owned by the city of Fargo, be dismissed. In 2005, the court rejected an Establishment Clause challenge to the monument by the same plaintiffs. Then the Freethinkers proposed donating a companion monument with language rejecting the notion that the U.S. is a Christian nation, but agreed that their monument offer would be withdrawn if the city moved the Ten Commandments to private property. The City Commission agreed to this, but changed its mind when 5200 signatures were collected for an initiated ordinance to keep the monument on city land. Council adopted an ordinance to keep the Ten Commandments and this lawsuit followed.

According to the court, plaintiff contends that "the City acted with an 'overt religious purpose' in reversing its decision to move the Ten Commandments monument to private property and has 'transformed' the previously constitutional display of a mixed secular and religious expression to one with an unconstitutional, religious purpose by adopting the initiated ordinance." However the court disagreed, concluding:

Freethinkers’ amended complaint asserts that, by adopting the initiated ordinance, the City adopted the alleged religious motivations of the petition promoters. This conclusory assumption is not supported by any allegations of fact.

The court also concluded that even if it did invalidate the ordinance, that would not necessarily lead to removal of the Ten Commandments monument. The city would still be free to leave the monument in place. The Crookston (ND) Daily Times reports on the decision.

UPDATE: The court adopted the magistrate's recommendations at Red River Freethinkers v. City of Fargo, 2010 U.S. Dist. LEXIS 93819 (D ND, Sept. 8, 2010).

EEOC Lawsuit Charges Failure To Accommodate Employee's Sabbath

The EEOC announced in an Aug. 12 press release that it has filed suit in a North Carolina federal district court against Measurement, Inc., an educational company, charging that it fired an employee rather than accommodate her religious needs to avoid work on Saturdays.  Jacqueline Dukes is a member of the Christian denomination Children of Yisrael which observes the Sabbath from sundown Friday to sundown on Saturday.  In Sept. 2008 Dukes was told that she would have to work on Saturdays on a new project. The EEOC complaint charges that Measurement could have accommodate Dukes by permitting her to switch shifts with other employees.

Preliminary Injunction Denied In Suit By Counseling Student Objecting To Remediation Plan

In Keeton v. Anderson-Wiley, (SD GA, Aug. 20, 2010), a Georgia federal district court refused to issue a preliminary injunction in a suit by a graduate student in counseling at Augusta State University who was required to complete a Remediation Plan regarding counseling of homosexual clients in order to remain in the program. The action was taken after the faculty expressed concern that student Jennifer Keeton might not be able to separate her personal, religious-based views on homosexuality from her professional counseling duties. Keeton alleged that the school's action violated her free speech, free exercise, equal protection and due process rights. (See prior posting.)

Judge Hall, emphasizing that "despite any suggestion to the contrary, this is not a case pitting Christianity against homosexuality" said that he "will not, especially at this early stage of the litigation, serve as an 'ersatz dean'."  The court continued:

the Remediation Plan was imposed upon Plaintiff not because of mere disagreement with her viewpoints, but because of Plaintiff's inability to resist imposing her moral viewpoint on counselees, a position contrary to the ethical rules incorporated into the ASU counseling program's curriculum....  [I]ncorporation of the ACA [American Counseling Association] Ethical Code into the ASU counseling program's curriculum, and requiring students to adhere to the Code as a curricular requirement, appears at this time to be "reasonably related to legitimate pedagogical concerns"....

To the extent that Defendants compel Plaintiff to speak at all by requiring that she "affirm" GLBTQ conduct in a counseling setting, they demand nothing more than Plaintiff's adherence to the ACA Code of Ethics....

Yesterday's Augusta Chronicle reports on the decision.