Church Official In Malta Says Lawyers and Judges Should Not Take Part In Divorce Cases If Law Is Changed

Malta is the only European Union country where divorce is banned. In July, a member of Parliament in Malta introduced a bill to permit divorce in the country. Malta's prime minister says the issue should be the subject of a referendum or at least of an election debate. (Times of Malta; PressEurop). Now, according to today's Times of Malta, a high-ranking Catholic Church official in the country says that if the law is passed, any judge who applies it would be committing a grave sin. Judicial Vicar Arthur Said Pullicino, head of the Church tribunals that examine religious petitions for annulments, said in a homily at the beginning of the judicial year, that members of the judiciary and lawyers should refuse to take part in divorce proceedings. He explained: "A lawyer who takes up the case of somebody who files for divorce, the guilty partner, cannot do it. He would be going against God’s law. On the other hand, the lawyer who takes up the case of the innocent party is doing nothing wrong."

Suit Challenges Kentucky's Rejection of In God We Trust License Plates

Fox News and Fox 41 this week reported on a lawsuit that has been filed in state court in Kentucky by an anti-pornography group known as ROCK ("Reclaim Our Culture Kentuckiana") challenging a 2008 denial by the state's Transportation Cabinet of ROCK's application for issuance of an "In God We Trust" specialty license plate. The state cited three reasons for refusing the request: the plate would not readily identify the motor vehicle operator as a member or supporter of ROCK; the legislature had previously considered, but not passed, legislation to authorize a similar plate; and the relevant Kentucky statute (KRS Sec. 186.164(9)) bars creating specialty plates for any group that has as its primary purpose the promotion of any specific faith, religion, or non-religion.  Last week, in its memorandum (full text) supporting its motion for summary judgment, ROCK argued that while it promotes Judeo-Christian principles, it does not promote any specific religion. It also argues that the statute's exclusion of religious groups violates the Equal Protection clause. (See prior related posting.)

FLDS Asks Federal Court To Enjoin State Court Trust Reformation

On Wednesday, the Fundamentalist Church of Jesus of Jesus Christ of Latter Day Saints renewed their federal court motion for a temporary restraining order or preliminary injunction to stay all proceeding in the Utah state court case that is implementing reform of the United Effort Plan Trust that holds FLDS property. The motion also seeks to enjoin the further transfer of any property from the trust, including the proposed sale of the Berry Knoll Farm that is a sacred temple site for FLDS members. (Full text of motion.) The federal court case was originally filed in 2008 to contest the state's actions in taking over administration of the property of the polygamous FLDS church in twin towns in Utah and Arizona. (See prior posting.)  This week's federal court motion comes after the Utah Supreme Court in August rejected a similar FLDS challenge on the ground of laches. (See prior posting.) In its 45-page memo (full text) accompanying this week's federal court motion, FLDS contends that the state court's reformation of the UEP trust violates the Establishment Clause, arguing:

No reading of the Religion Clauses justifies the State’s involvement in the FLDS Church and the UEP Trust. The State violates that clause when it takes over an institution of religion and then, by stripping the religion from the institution, claims to be able to minister to the needs of its members by applying rules of secular neutrality.

Yesterday's Salt Lake Tribune reports on the federal court proceedings. For those following the case, an extensive collection of primary source documents in the state court proceedings are available at a UEP website.

9th Circuit: Immunity Protects Several Defendants In Lease and Sale of Homeless Shelter To Religious Group

In Community House, Inc. v. City of Boise, (9th Cir., Oct. 6, 2010), the 9th Circuit Court of Appeals held that the mayor and individual members of city council of Boise, Idaho enjoyed absolute legislative immunity in a suit charging that their approval of a lease and eventual sale of of a homeless shelter to the Boise Rescue Mission violated the Establishment Clause and the federal Fair Housing Act.  They may not be sued individually for either damages on injunctive relief. The court went on to hold that two city development officials enjoyed qualified immunity from a claim for damages in their individual capacities because at the time of the lease and sale a reasonable official would not have known that the actions violated the Establishment Clause or the FHA. The majority wrote:

Faced with a dearth of binding case law on the subject of non-profit leases to religious organizations — and a Fourth Circuit case holding that “rent discrimination” based on religion was unconstitutional — a reasonable official would not have known that the BRM lease violated the Establishment Clause.... Given that no other non-profit organizations were willing or able to keep the doors of the shelter open, the decision to lease the building to the BRM was reasonable....

With respect to the option to purchase, case law before 2005 suggested that, generally, a sale of public property to a religious organization for less than market value would likely violate the Establishment Clause.... But no case in the Ninth Circuit or elsewhere had held that a below-market sale would be unconstitutional where the organization also executed an important city policy and saved the city money...

Thus plaintiffs are limited to suing the city and city council and the development officials in their official capacity. Chief Judge Kozinski filed a concurring opinion.

French Constitutional Council Upholds Ban on Burqa

CNN reported yesterday that in France, the Constitutional Council has upheld the Parliament's recently enacted ban on wearing the burqa or niqab-- garments including a full face veil-- anywhere in public. (See prior posting.) This was the last step necessary for approval of the new law that will take effect in the spring. The Constitutional Council held that the new law does not impose disproportionate punishments and does not prevent the free exercise of religion in a place of worship and thus "conforms to the Constitution."  Under the new law, a woman wearing a niqab or burqa will be fined 150 Euros ($190 US) and required to take a citizenship course.  The law classifies forcing a woman to wear a niqab or burqa as a much more serious offense, punishable by a sentence of one year in prison or a fine of 15,000 Euros ($19,000 US). The government called this type of coercion a new form of enslavement that cannot be accepted on French soil.

Suit Filed Over School's Refusal To Allow Nose Stud Worn for Religious Reasons

ACLU of North Carolina announced Wednesday that it had filed a lawsuit in a North Carolina federal district court on behalf of 14-year old high school freshman Ariana Iacono and her mother challenging Clayton (NC) High School's refusal to grant Ariana an exemption from its dress code so she can wear a small nose stud for religious reasons.  The complaint (full text) in Iacono v. Croom, (ED NC, filed 10/6/2010), asserts that the Iacono's are members of the Church of Body Modification. Ariana joined in August, while her mother had been a member for a year prior to that.  The complaint alleges free exercise, equal protection and other violations stemming from the school's suspending of Ariana and sending her to an alternative school for violating the school dress code. (See prior related posting.)

UPDATE:  Two days after the lawsuit was filed, a federal district judge issued a temporary restraining order permitting Ariana Iacono to return to classes at Clayton High School. (Apex (NC) Herald). A hearing on a preliminary injunction to permit Ariana to continue in classes is pending is scheduled for Nov. 2. (WRAL News). Here is the full text of the judge's order granting the TRO. The court concluded that plaintiff had shown a likelihood of success on the merits of her free exercise claim.

Anti-SLAPP Law Applied To Dismiss Claims In Suit Growing Out of Condo Mezuzah Dispute

In Shoreline Towers Condominium Association v. Gassman, (IL App., Sept. 30, 2010), an Illinois appellate court agreed with the trial court that portions of a lawsuit by a condominium association against a former resident should be dismissed under Illinois' anti-SLAPP law. What began as a dispute between former resident Debra Gassman over condo rules that prevented her from placing a mezuzah on her door escalated into several confrontations between Glassman on the one hand and the Association and its president on the other.  This suit by the Association and its president seeking an injunction and alleging defamation and malicious prosecution, among other charges, followed. In upholding dismissal of claims brought by the Association (while allowing claims by its president to proceed), the court said that the anti-SLAPP law: "does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action." The court also upheld retroactive application of the anti-SLAPP law and the award of attorneys' fees.

Appeal To 6th Circuit Filed In Recess Bible Reading Case

On Tuesday, a Notice of Appeal (full text) to the 6th Circuit was filed in L.W. v. Knox County Board of Education.  In the case, a federal district court jury in Knoxville, Tennessee found in favor of the Knox County Schools in a lawsuit over the right of elementary school students to read the Bible during recess. (See prior posting.) The jury accepted the school's contention that the school's refusal was merely the result of a misunderstanding about what the children were requesting. In a decision last month (full text), the district court rejected plaintiff's motion for judgment as a matter of law despite the jury verdict, and also rejected plaintiff's motion for a new trial. Alliance Defense Fund issued a press release announcing the filing of the appeal.

Christian Groups File Consultation Paper With United Nations On Interpretation of ICCPR

Last week, a group of Christian organizations submitted a 35-page consultation paper (full text) to the United Nations Office of the High Commissioner for Human Rights. The paper responds to a call by the High Commissioner for papers addressing the interplay of two section of the International Covenant on Civil and Political Rights. At issue is the relationship of Article 19 which guarantees freedom of expression with Article 20 that prohibits advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility of violence. The paper calls on the High Commissioner to also consider the impact of Article 18 that guarantees freedom of thought, conscience and religion.  The paper takes strong issue with language in the High Commissioner's concept paper that rephrases Article 20.  The consultation paper argues that the change in wording may favor hate speech codes or bans on defamation of religion "that will result in restrictions upon legitimate freedom of expression and upon the ability of minority groups to challenge reigning religious and political orthodoxies."  A press release issued on Tuesday by Alliance Defense Fund announcing the filing of the consultation paper says: "What’s at stake here is the ability of Christians to be able to share freely their belief that Jesus Christ is the only way to salvation without fear of reprisal by any government that has signed on to this covenant."

City Council Opts To End Exploration of Opening Sessions With Prayer

The Canandaigua, New York City Council's Planning Committee yesterday rejected a proposal by one Council member to explore opening of Council meetings with a prayer.  According to the Canandaigua Messenger Post, Councilwoman Trudy White-Hamilton proposed the idea last month, saying that "prayer would benefit our community."  However Mayor Ellen Polimeni said that instituting a prayer policy would invite a lawsuit, and Councilman Matt Smythe complained that using city staff to investigate the issues involved would divert them from addressing other matters. A motion to continue research on the issue of legislative prayer was defeated by the Committee by a vote of 2-1.

Suit Challenges Jail's Policy Allowing Inmates To Receive Bibles But No Other Publications

The ACLU announced yesterday that it has filed a federal lawsuit in South Carolina challenging the policy at the Berkeley County (SC) Detention Center which bars sending of any books, magazines or newspapers to inmates, except for copies of the Bible.  The complaint (full text) in Prison Legal News v. Berkeley County Sheriff H. Wayne Dewitt, (D SC, filed 10/6/2010), alleges that the censorship policy, which includes barring letters sent by magazine publishers, infringes the right of the publisher of a  monthly journal on prison law to communicate with detainees. The suit also claims that the policy violates the Establishment Clause because allowing Bibles, but no other books, to be sent discriminates on the basis of religion. AP reports on the lawsuit.

Supreme Court Hears Oral Arguments In Funeral Picketing Case

The U.S. Supreme Court this morning heard oral arguments in Snyder v. Phelps. In the case, the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder and a related Internet posting violated their free speech rights. (See prior posting.)  The full transcript of today's oral arguments is available from the Supreme Court's website. Scotus blog has extensive links to briefs in the case and material relating to the oral arguments. The New York Times describes today's arguments as "featur[ing] disputes about the facts and a parade of hypothetical alternative scenarios."  Interestingly, oral arguments for Westboro Baptist Church were made by Margie J. Phelps, a daughter of Westboro's pastor, Fred W. Phelps, Jr. Before the arguments, another of Phelps daughters picketed outside the Supreme Court carrying a sign reading "America Is Doomed."

UPDATE: An audio recording of the full oral arguments is now also available from the Supreme Court's website.

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.

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.