Religion Clause

Wednesday, October 06, 2010

Court Says Confidentiality Agreements Will Not Prevent Discovery In Establishment Clause Suit

Last year a Minnesota federal district court held that the ACLU has taxpayer standing to bring an Establishment Clause challenge to state funding of a charter school-- the Tarek ibn Ziyad Academy. The suit claims that the school advances the Muslim religion and fosters entanglement between government and religion. (See prior posting.) Now in ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2010 U.S. Dist. LEXIS 104961 (D MN, Oct. 1, 2010), the district court has upheld a federal magistrate's grant of a protective order to prevent enforcement by TiZA of non-disclosure/ confidentiality provisions in its employee handbook against current and former employees in connection with disclosures the employees may make to the ACLU. The ACLU is attempting to interview employees as part of its informal discovery process, and at least one has expressed concern that talking will subject him to a civil suit by TiZA. The court concluded that these confidentiality agreements may well be contrary to public policy when invoked by a public employer such as a charter school.

More Recent Prisoner Free Exercise Cases

In Green v. Werholtz, 2010 U.S. Dist. LEXIS 102867 (D KA, Sept. 28, 2010), a Kansas federal district court rejected plaintiffs' complaints about the manner in which prison kosher meals were prepared, finding that their preparation was approved by a rabbi.

In Delgado v. Ballard, 2010 U.S. Dist. LEXIS 102552 (SD WV, Sept. 24, 2010), a West Virginia federal district court adopted most of a magistrate's recommendations (2010 U.S. Dist. LEXIS 102532, Aug. 19, 2010) and allowed an inmate who is a Taino Indian from Puerto Rico to move ahead with his claims for declaratory and injunctive relief. Plaintiff claimed that his religious rights were infringed by denial of his needs to smoke tobacco daily, grow some of his hair long, listen to certain music full time and correspond with Latino or Taino religious groups.

In Zuege v. Geffers, 2010 U.S. Dist. LEXIS 102406 (ED WI, Sept. 28, 2010), an inmate complained that in the earned release program he was singled out because of his non-religious beliefs and was told to write a report on a book titled Ethics of Religion. He alleged this violates the Establishment Clause. The ERP group leader denied the allegations. The court held that because of factual disputes, neither side was entitled to summary judgment.

In Miller v. Wilkinson, 2010 U.S. Dist. LEXIS 103364 (SD OH, Sept. 30, 2010), an Ohio federal district court rejected free exercise and RLUIPA challenges by Asatru prisoners seeking exemptions from the prison's grooming code and seeking recognition of their Asatru religious names.

In Sosa v. Lantz, 2010 U.S. Dist. LEXIS 103535 (D CT, Sept. 30, 2010), a Connecticut federal district court rejected an inmate's complaint that he was being forced to participate in a religion when he was housed with a Muslim cell mate who used the cell for prayer and religious practices. The court held that double-celling plaintiff with a Muslim cell mate did not amount to state action in violation of 1st Amendment rights.

In Johnson v. Jabe, 2010 U.S. Dist. LEXIS 103483 (WD VA, Sept. 30, 2010), a Virginia federal district judge remanded an inmate's free exercise, RLUIPA and equal protection claims to the magistrate for further fact finding on whether The Nations of Gods and Earth (sometimes called the Five Percenters) is properly classified as a Security Threat Group. Prison officials classify NGE as a gang and refuse to recognize it as a religion. The magistrate's original recommendations are at 2010 U.S. Dist. LEXIS 103486, Aug. 23, 2010.

In Abdul-Matiyn v. Allen, 2010 U.S. Dist. LEXIS 102825 (ND NY, Sept. 28, 2010), a New York federal district court adopted most of the recommendations of a magistrate (2010 U.S. Dist. LEXIS 102972, March 4, 2010) and permitted plaintiff (who was civilly committed after the expiration of his prison term based on psychological issues and sexual misconduct convictions) to move ahead with his claim that his free exercise rights were infringed when authorities prohibited him from engaging in Jum'ah prayers. However the court rejected his complaint that he was not provided with halal meals.

Irish Court Refuses To Assert Universal Jurisdiction Over Alleged Chinese Persecutor of Falun Gong

Ireland's Central Criminal Court last week held that it lacked jurisdiction to issue an arrest warrant for Li Changchun, a high ranking Chinese Communist Party official who was visiting Ireland for two days on his way to Iran. Yesterday's Epoch Times reported that a criminal complaint was filed in Ireland against Li by several Falun Gong practitioners who charged that Li, as Secretary General of the Party of Guangdong Province and the Politburo Standing Committee Propaganda and Media Officer, played a key role in the persecution of Falun Gong in China. Petitioners attempted to assert universal jurisdiction, charging that Li was linked to crimes of torture, extra-judicial killing, cruel, inhuman and degrading treatment and genocide.

PBS To Air Series On "God In America"

On Oct. 11-12-13, PBS will air a 6-hour series titled "God In America." Jointly presented by American Experience and Frontline, the series will explore the historical role of religion in American public life. Here is PBS' description of the series:

God in America examines the potent and complex interaction between religion and democracy, the origins of the American concept of religious liberty, and the controversial evolution of that ideal in the nation's courts and political arena. The series considers the role religious ideas and institutions have played in social reform movements from abolition to civil rights, examining the impact of religious faith on conflicts from the American Revolution to the Cold War, and how guarantees of religious freedom created a competitive American religious marketplace. It also explores the intersection of political struggle and spiritual experience in the lives of key American historical figures....

Boston Phoenix yesterday had an advance review of the series.

DC Circuit: Federal Employee Need Not Relitigate Religious Discrimination Victory To Appeal Retaliation Holding

In Payne v. Salazar, (DC Cir., Sept. 7, 2010), the D.C. Circuit gave a substantial victory to federal employees asserting Title VII employment discrimination claims. In the case, Department of Interior employee Cassandra Payne won her religious discrimination clam at the administrative level. An EEOC administrative judge found that the Interior Department had violated Title VII by refusing Payne's requests for weekends off so she could attend church and Bible study. However the administrative judge rejected her claim that her supervisor had retaliated against her for filing the EEO claim. Payne appealed the retaliation ruling by filing suit in federal district court. However the district court accepted the government's contention that in order to sue on the retaliation claim, Payne must also relitigate the religious discrimination claim on which she had been successful at the administrative level. The Court of Appeals reversed, rejecting the government's interpretation of the statutory language. It held that a federal employee does not have to re-prove in court a claim on which she has already been successful in order to sue on other Title VII claims which were rejected at the agency level. [Thanks to FedSmith for the lead.]

Algerian Court Dismisses Prosecution of Two Christians For Eating During Ramadan

In Algeria yesterday, a court in the town of Ain El-Hammam dismissed a prosecution that had been brought against two Christian construction workers charged with eating during daylight hours during Ramadan. Prosecutors demanded that the two be punished for insulting Islam. The defendants argued that they were not eating in a "public place", and that their prosecution violated constitutional protections and provisions of international conventions protecting freedom of religion. According to Times Live and the Christian Post, the court ruled that no law provided for bringing charges against the two non-Muslims.

Christian Wrestling Coach Settles Religious Discrimination Claim Against Dearborn, MI School

Dearborn, Michigan's Fordson High School has settled a religious discrimination lawsuit filed against it by its former wrestling coach who claimed he was fired because the school's principal, a Muslim, is weeding out Christian teachers, coaches and staff. (See prior posting.) AP reported yesterday that Dearborn Public Schools paid 65-year old wrestling coach Gerald Marszalek $24,500 to settle the religious discrimination claims. Earlier this year it paid him $500 to drop his age discrimination claims.

Tuesday, October 05, 2010

Court Refuses To Dismiss Justice Department's Title VII Case Against NYC Transit Authority

In United States v. New York City Transit Authority, 2010 U.S. Dist. LEXIS 102704 (ED NY, Sept. 24, 2010), the Department of Justice sued the New York City Transit Authority claiming that it violated Title VII of the 1964 Civil Rights Act through polices and practices that discriminate against employees whose religious beliefs require them to wear certain head coverings, such as turbans or khimars, without logos on them. The complaint alleged selective enforcement of the Transit Authority's uniform policies and failure to reasonably accommodate Sikh and Muslim employees. The court rejected three arguments for dismissal put forward by the Transit Authority. The court held that the suit can be maintained as a "pattern or practice" claim, that in such a claim the government does not have to show that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy, and that such claims are not subject to the same rules regarding shifts of burden of proof as in individual Title VII actions. The court also held that whether the Transit Authority offered reasonable accommodation of employees' beliefs could not be determined as a matter of law at the summary judgment stage.

Prosecutor's Biblical References Not A Basis For Overturning Death Sentences

Jackson v. Epps, 2010 U.S. Dist. LEXIS 102562 (ND MI, Sept. 28, 2010) is a habeas corpus action by a prisoner challenging his capital murder convictions and the resulting four death sentences imposed on him. Among other claims, petitioner asserted that the prosecutor's Biblical references during closing arguments at the sentencing phase of his trial violated the Establishment Clause and urged jurors to rely on impermissible factors in reaching their decision. The court disagreed, pointing out that the prosecutor:

asked the jury to apply the secular law given to them, and she used a familiar reference to argue that point. The reign of King Herod and his death from a painful disease, are historical fact, and her comments concerning the slaughter of children referenced a story in a book. That the comments have a religious connotation does not render the argument inherently religious....

Moreover, [the prosecutor's] reference to "God's law" was responsive to Petitioner's own arguments..... [Her] statements were not an endorsement of extrajudicial authority for imposing a sentence of death. Her statements were more akin to familiar Proverbs and parables that are used to support arguments outside of a religious context.... [T]here was no prosecutorial suggestion that personal responsibility for the sentence did not ultimately rest with the jury, and the comments did not suggest that religious principles, rather than the law, applied.

Trial of Geert Wilders For Anti-Muslim Incitement Opens In Netherlands

In Amsterdam, Netherlands yesterday, the trial of Geert Wilders, an anti-Muslim right wing member of parliament, opened. Hurriyet Daily News reports that Wilders is charged with giving religious offense to Muslims and inciting hatred and discrimination against Muslims. In his opening statement, Wilders defended freedom of speech, and then refused to answer any questions from judges. This led presiding judge Jan Moors to observe that Wilders appeared to be avoiding discussion. Wilders attorney said that this statement shows that Judge Moors is biased, and moved to have him disqualified. (See prior related posting.) Support by Wilders' Freedom Party is critical to the coalition government that will shortly take office in the Netherlands. (See prior related posting.)

Husband In Contempt For Teaching Child Christian Faith In Violation of Divorce Settlement

In Greene v. Greene, (GA Ct. App., Oct. 1, 2010), a Georgia appellate court upheld a trial court's finding that a divorced husband was in contempt for violating a Settlement Agreement that gave his former wife final decision-making authority over matters related to their daughter's religious upbringing. The wife was Jewish and the husband was Christian. The husband had agreed that the child would be raised in the Jewish faith. However, according to the court:

Husband admitted that he had taken the child to numerous Christian churches ...[;] that he told the child that she was Jewish on the outside and Christian on the inside; that he shared Christian prayers with the child; that he and his mother read the Bible to the child; that his mother taught the child the Christian faith from the Bible...; and that the child told him that she was conflicted about the two different faiths. Husband also admitted that he gave the child a children's Bible, as well as DVDs of Christian stories and movies; that he taught her Christian songs and played them while riding in the car with the child; and that he had referred to Wife's parents by numbers but denied that he was referencing the Holocaust.

The appeals court also concluded that the trial court's instructions to the Husband on how to purge himself of contempt were sufficiently clear.

Muslims Get Mixed Messages On Their Integration In Germany

Deutsche Welle reported yesterday that Muslims in Germany are getting mixed messages from top government leaders. On Sunday, Germany's President Christian Wulff, in a speech marking the 20th anniversary of German reunification, called for the integration of Muslims in Germany. In his speech, Wulff said: "Christianity doubtless belongs in Germany. Judaism belongs doubtless in Germany. That is our Judeo-Christian history. But now, Islam also belongs in Germany." A day later, German Chancellor Angela Merkel, endorsed Wulff's views but added that Muslims living in Germany must conform to "fundamental German values." She said there was no leeway on this demand. Meanwhile Norbert Geis, a member of parliament from a Bavarian party allied with Merkel's Christian Democrats said that Wulff's statement should not be interpreted to mean that Islam and Christianity have an equal footing in Germany.

Cert. Denied In Challenge To School Ban On Religious Music In Holiday Concerts

Yesterday the U.S. Supreme Court denied certiorari in Stratechuk v. Board of Education, (Docket No. 09-1184) (Order List.) In the case, the 3rd Circuit upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) The policy was challenged on Establishment Clause grounds and on the ground that the school was unconstitutionally restricting students' access to ideas. Yesterday's Newark (NJ) Star Ledger reports on the Supreme Court's refusal to grant review.

England's Charity Commission Says Druids Are A Religion

The Charity Commission for England and Wales last Saturday, for the first time, recognized Druidry as a religion. The action gives the Druid Network charitable status for tax purposes in Britain. CNN reports the Commission found that in Druidry: "There is a sufficient belief in a supreme being or entity to constitute a religion for the purposes of charity law." The Druids are generally seen as a neo-Pagan religion.

Monday, October 04, 2010

Red Mass Marks Beginning of Supreme Court's October Term

The U.S. Supreme Court opens its new term today. Yesterday, according to CNN, the traditional Red Mass was held at the Cathedral of St. Matthew the Apostle in Washington to mark the new term. Among those in attendance was Vice President Joe Biden, Chief Justice John Roberts, and Associate Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Stephen Breyer. Breyer was the only Justice attending who is not Catholic. He is Jewish. The Court now is made up of six Catholics and three Jews. The homily at the Mass was given by Archbishop J. Augustine Di Noia. During the current term, the Court will decide at least two cases involving the intersection of law and religion. Arizona School Tuition Organization v. Winn involves a church-state challenge to Arizona's tuition tax credits (background), while Snyder v. Phelps involves a challenge by members of the anti-gay Westboro Baptist Church to a damage award against them for emotional distress caused by their picketing of a veteran's funeral (background).

Lawyer in Mosque Zoning Case Argues Islam Is A Political Movement, Not A Religion

Last week, court hearings began in the Rutherford County (TN) Chancery Court in a lawsuit seeking a temporary restraining order to halt construction of a controversial Islamic center being built in Murfreesboro, Tennessee. (See prior related posting.) Normally RLUIPA gives religious institutions special protections in zoning matters. The Tennessean reported yesterday, however, that challengers argued in court that Islam should be classified as a political movement, not a religion, and that the proposed mosque is not a house of worship. In his opening statement, Smyrna (TN) attorney Joe Brandon, Jr. argued: "Shariah law is pure sedition." Local officials disagree and say the mosque should be treated like any other house of worship.

En Banc Rehearing Sought In Christian Student's Challenge To College's Policy

A petition for an en banc rehearing by the 9th Circuit in Lopez v. Candaele was filed last week. (Full text of petition.) In the case, a panel of the 9th Circuit held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy because there was never any credible threat that the policy would be used to discipline the student despite a speech professor's objections to the student's religious opposition to same-sex marriage. (See prior posting.) The rehearing request argues that the panel holding is at odds with decisions in the 3rd and 6th Circuits which permit a challenge to overbroad statutes that chill speech without a threat of enforcement. Alliance Defense Fund issued a press release announcing the filing of the rehearing request.

Sunday, October 03, 2010

Appeals Court Upholds Release of Psychiatric Files of Clergy In Sex Abuse Settlement

In Doe 1 v. Franciscan Friars of California, Inc., (CA App., Sept. 30, 2010), a California appellate court held that pursuant to a settlement in a clergy sex abuse case, various confidential files of six alleged perpetrators could be released to the public. The court found that "compelling social interests in protecting children from molestation outweigh the Individual Friars' privacy rights, and the trial court correctly ordered the public release of psychiatric and other confidential records in the possession of the Franciscans." (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Patterson v. Schriro, 2010 U.S. Dist. LEXIS 100187 (D AZ, Sept. 2), an Arizona federal district court refused to issue a preliminary injunction ordering plaintiff receive a kosher diet because plaintiff alleged no threat that his current kosher diet is likely to be discontinued or changed.

In Pugh v. Caruso, 2010 U.S. Dist. LEXIS 100683 (WD MI, Sept. 22, 2010), a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 100713, Aug. 25, 2010) and dismissed plaintiff's RLUIPA challenge to various limits on his practice of Wicca.

In Ali v. Quarterman, 2010 U.S. Dist. LEXIS 100621 (ED TX, Sept. 24, 2010), a Texas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 100707, July 20, 2010) and dismissed a Muslim inmate's objections to the prison's grooming code that prevented him from wearing a beard and to its headgear policy that allowed him to wear a kufi only in his cell and at religious services.

In Ahmad v. Thomas, 2010 U.S. Dist. LEXIS 100866 (SD TX, Sept. 23, 2010), a Texas federal district court dismissed a Muslim inmate's attempt to obtain Friday Jum'ah services at the Harris County Jail as well as the right to use his prayer carpet and kufi cap in his cell.

In Braithwaite v. Hinkle, 2010 U.S. Dist. LEXIS 100510 (ED VA, Sept. 20, 2010), a Virginia federal district court dismissed a Muslim inmate's free exercise challenge to prison grooming rules that prohibited him from wearing a beard. UPDATE: Affirmed, 2011 U.S. App. LEXIS 4115 (4th Cir., Feb. 24, 2011).

In Vinson v. Riley, 2010 U.S. Dist. LEXIS 101666 (WD MI, Sept. 27, 2010), a Michigan federal district court permitted an inmate to move ahead with certain of his claims asserting that his free exercise and RLUIPA rights were violated when he was removed from the kosher meal program. Officials said plaintiff had changed his religion by asserting that he was an active Moorish Science member. Plaintiff said that his nationality is Moorish American, but his religion is still African Hebrew Israelite.

In Jean-Pierre v. Bureau of Prisons, 2010 U.S. Dist. LEXIS 101546 (WD PA, Sept. 27, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 101614, July 30, 2010) and permitted a Rastafarian inmate to move ahead on his free exercise and equal protection claims growing out of his removal from the Certified Religious Diet Program. However the court dismissed plaintiff's official capacity claims and claims for monetary damages under RFRA.

In Hall v. Skolnik, 2010 U.S. Dist. LEXIS 102277 (D NV, Sept. 13, 2010), an inmate challenged authorities' denial of his request for kosher meals and charged that prison policies prevent black-Jewish inmates from practicing their religion to the same extent as other Jewish inmates. The court dismissed plaintiff's official capacity claims for monetary damages and claims against the Nevada Department of Corrections, his 8th Amendment claims and his claims for emotional distress. However he was permitted to proceed on other claims.

In Avery v. Ferguson, 2010 U.S. Dist. LEXIS 101947 (WD AK, Sept. 24, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 101864, Sept. 3, 2010) and rejected a number of claims of constitutional violations growing out of conditions when plaintiff was held as a pre-trial detainee. However it permitted him to proceed with his claim that his free exercise rights were violated when he was denied a vegetarian diet.