Religion Clause

Tuesday, October 12, 2010

First Responder Sues Ground Zero Mosque Developers For Emotional Distress; Counter Suit Filed

According to the Huffington Post yesterday, 9-11 first responder Vincent Forras has filed a state court class action against the developers of the proposed Ground Zero mosque seeking damages of $350 million for infliction of emotional distress and assault. The complaint (full text) in Forras v. Rauf (apparently filed in mid-September) alleges that for people who live, work or often visit the area around ground zero, many of whom were first responders, the mosque project is "a nuisance, a terror risk and a conscious and/or negligent desire to inflict additional psychological terrorism and emotional distress...." The complaint goes on to allege:

Defendants’ actions and decisions to erect a Mosque at or near the site of a terrorist attack where nearly 3,000 Americans lost their lives as a result of radical Islamic terrorists’ actions is careless, negligent, and unlawful in that as a result of Defendants’ ties to terrorist organizations, Defendants have increased the access of terrorists and the likelihood of attacks on Ground Zero. Defendants, given their professed role as clergy, and as professed people of faith, and as citizens of the City of New York and property owners, owe a duty of care to Lead Plaintiff and other members of the class, particularly under these unique circumstances.

Yesterday's New York Post reports that defendants are seeking to have the lawsuit dismissed on free exercise of religion grounds. UPI reported yesterday that Imam Feisal Abdul Rauf and Park51, defendants in the lawsuit, have also responded with a counter-suit claiming that the action against them is motivated by "blind bigotry." The counter suit asks for $50,000 in damages plus attorneys' fees.

Monday, October 11, 2010

Court Says Undue Hardship In Accommodating Refusal To Handle Domestic Partnerships Must Go To Jury

In Slater v. Douglas County, (D OR, Sept. 24, 2010), an Oregon federal district court refused to grant either plaintiff's or defendant's motions for summary judgment in an employment discrimination case, sending to a jury trial the question of whether accommodating a county employee's religious beliefs would have posed an undue hardship under state or federal employment discrimination laws. The suit was brought by a former employee of the Douglas County, Oregon County Clerk's Office. Plaintiff Kathy Slater was fired from her position after she objected to being involved in registering domestic partnerships under Oregon's Domestic Partnership Law. Doing so would have violated her religious belief that homosexuality is a sin. The court concluded that the county's offer to help Slater transfer to a position in another county department if one became available was an insufficient effort at accommodation of her religious beliefs. However it was unable to determine the question of undue hardship on the record before it. The court did reject the county's argument that accommodating Slater's religious beliefs would have violated the Establishment Clause because the county would have been supporting the employee's religious beliefs. [Thanks to Volokh Conspiracy via Alliance Alert for the lead.]

Suit Says County Sign Control Ordinance Is Unconstitutional

A federal court challenge to a Berkeley County, South Carolina sign control ordinance was filed last week. The complaint (full text) in Moultrie v. Berkeley County, South Carolina, (D SC, filed 10/5/2010), argues that by providing exemptions for political signs (as well as for "for sale" and "for lease" signs) but not for signs expressing religious messages, the county has violate the free expression, free exercise and equal protection rights of plaintiff who was cited after he failed to obtain permits for seven signs containing Biblical references that he placed on his own property. Plaintiff alleges that the county ordinance is a prior restraint, as well as an over-broad content-based regulation. Last week, the Rutherford Institute issued a press release announcing the filing of the lawsuit. Friday's Charleston (SC) Post and Courier reports on the case.

In Turkey, University Faculty Cannot Remove Students Who Wear Muslim Headscarves

Despite a 2008 ruling by Turkey's Constitutional Court that appears to hold that Turkey's constitution bars the wearing of Muslim head scarves at universities (see prior posting), Turkey's Higher Education Board (YOK) recently notified Istanbul University that instructors can no longer take disciplinary action against students who wear them. Instead of removing offending students from class, instructors can only report them to the dean. Reporting on YOK's ruling, Hurriyet Daily News last week called it a "don't ask don't tell solution" to a "heavily symbolic legal, political and social dilemma." An op ed today by Richard Peres in Turkey's English language daily, Today's Zaman, makes some interesting observations on the possibility of Turkish women taking a lesson from developments that led to the 1964 Civil Rights Act in the United States.

Sunday, October 10, 2010

Recent Prisoner Free Exercise Cases

In a long opinion in Smith v. Artus, 2010 U.S. Dist. LEXIS 104660 (ND NY, Sept. 30, 2010), a New York court ultimately rejected challenges by a Muslim inmate to prison policies that prevented him from engaging in demonstrative prayer in the prison recreation yard when recreation times coincided with his obligation for Salaah prayer. While the court questioned the constitutionality of the rule, it found qualified immunity for defendants from damages and found that claims for equitable relief were moot. The court also rejected a challenge to prison rules that prohibited inmates from attending congregate religious services while in the Special Housing Unit.

In Montague v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 104394 (MD TN,Sept. 30, 2010), a Tennessee federal magistrate judge recommended dismissal of an inmate' claim against a company authorized to deliver food packages to inmates. Plaintiff claimed he did not receive a Christmas gift package sent to him by his relatives.

In Reeder v. Hogan, 2010 U.S. Dist. LEXIS 105024 (ND NY, Sept. 29, 2010), a New York federal district court held that an inmate sufficiently alleged a complaint against one defendant over failure to receive proper meals during Ramadan. The magistrate's recommendations are at 2010 U.S. Dist. LEXIS 104686, Aug. 27, 2010.

In Jenkins v. Vail, 2010 U.S. Dist. LEXIS 98187 (ED WA, Sept. 17, 2010), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 103989, Aug. 4, 2010) and rejected a Muslim inmate's claims that his free exercise rights and rights under RLUIPA were infringed by rules that required him to either work or engage in educational programming in prison for a non-Islamic government.

In Johnson v. Rock, 2010 U.S. Dist. LEXIS 104685 (ND NY, Sept. 30, 2010), a New York federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 104672, March 30, 2010) and rejected a Muslim inmate's complaint that he was subjected to a restricted diet during Ramadan.

In Milstead v. Guyer, 2010 U.S. Dist. LEXIS 105044 (D ID, Sept. 29, 2010), an Idaho federal district court refused to permit a former inmate, now on parole, to withdraw from a settlement agreement he had reached on complaints about prison rules limiting the amount of religious and legal materials he could keep in his cell. The court refused to permit plaintiff to add claims regarding conditions of his parole that prevented him, as a sexual offender, from attending church services where children are present. The court encouraged plaintiff to work with his parole officer to determine what religious services were available for him to attend.

In Wiideman v. Baker, 2010 U.S. Dist. LEXIS 106301 (D NV, Sept. 20, 2010), a Nevada federal district court allowed an inmate to move ahead with his free exercise and RLUIPA claims that he is denied Asatru reading material, including the Bible of Odinism.

In Jones v. Hobbs, 2010 U.S. Dist. LEXIS 105799 (ED AK, Oct. 1, 2010), a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 106431, Sept. 13, 2010), and refused to dismiss an inmate's First Amendment individual capacity claims alleging a 16-month denial of a religiously required vegan diet. However the court dismissed plaintiff's RLUIPA claim for damages against defendants in their individual capacities.

Topeka Has Strained Relationship With Westboro Baptist Church Leaders

Today's New York Times explores the relationship between the city of Topeka, Kansas and the Phelps family, leaders of the Westboro Baptist Church that was at the center of a Supreme Court argument last week over free speech rights. (See prior posting.) Here are some excerpts from the Times account:

The city has tried and failed for decades to rid itself of the Phelpses, or at the very least to quiet them a bit. There have been counterprotests, violent attacks and endless rounds of legal efforts trying to silence them or force them out. But much to the embarrassment of the conflict-averse residents of this capital city of about 125,000, Mr. Phelps remains perhaps Topeka’s most famous resident....

But as the years of conflict have turned to decades, the city has settled into a tenuous, if mutually disdainful, co-existence with the Phelpses. The children of Mr. Phelps work white-collar jobs: 11 of the 13 are lawyers, including the three daughters who appeared before the Supreme Court on Wednesday. (Mr. Phelps was disbarred in 1979.) His 56 grandchildren and 9 great-grandchildren attend public school.

Gender Discrimination Claim By Former Pastor Dismissed Under Ministerial Exception Doctrine

In Barton v. Mikelhayes, 2010 U.S. Dist. LEXIS 107233 (ND NY, Oct. 7, 2010), a New York federal district court applied the ministerial exception doctrine to dismiss a Title VII gender discrimination complaint brought by Todd David Barton, a former minister in the United Methodist Church, whose pastoral license was withdrawn by the bishop. The Church claimed that the action was taken, pursuant to its Book of Discipline, because of patterns of behavior by Barton that undermined the ministry of his church's Lead Pastor. The court said:

[I]n order to decide the case ... the Court would be forced to question the Church's administration in order to decide whether Plaintiff's pastoral license was revoked due to his violation of the United Methodist Church's governing doctrine, as Defendant claims, or whether the Defendant's reasons for deciding that Plaintiff violated the doctrine were actually "not only erroneous, but also pretextual" as Plaintiff claims. This question cannot not be answered by the Court without impermissible entanglement with the United Methodist Church's religious doctrine.

Saturday, October 09, 2010

British Court Orders Muslim Woman To Remove Veil, But Allows Testimony From Behind Screen

In England, according to Sunday's London Express, the Leicester magistrate's court has rendered a controversial decision by requiring a Muslim woman to uncover her face to testify in court, but permitting her to testify from behind a screen where only the judges could see her. The woman, Georgiana Richards, was pregnant and brought domestic violence charges against her ex-partner, Ismail Mangera who was ultimately found guilty of punching Richards and scrawling abusive language on her front door. Richards criticized the court for requiring her to uncover her face, while Tory MP Phillip Hollobone said the court did not go far enough and should have required Richards to testify in open court with her face uncovered.

2nd Circuit Voids Vermont's "Vanity" License Plate Law That Excludes Religious References

In Byrne v. Rutledge, (2d Cir., Oct. 8, 2010), the U.S. 2nd Circuit Court of Appeals held that Vermont's statute that allows for "vanity" license plates, but does not permit the issuance of plates that refer to a religion or deity, is unconstitutional. The court concluded that by allowing residents to select combinations of letters and numbers that convey a message on a variety of topics, including statements of personal philosophy, taste, inspirational messages and affiliation with causes, but not allowing religious references, the state has engaged in viewpoint discrimination. The court also found the statute unconstitutional as applied. In this case, a resident applied for a license plate reading JN36TN. The state refused to issue it because the applicant informed them that he intended the plate to refer to a Biblical verse, John 3:16. However, had the applicant supplied a secular meaning for the numbers and letters, the state would have issued the plate. The court found that interpreted this way, the statute fails to further a legitimate governmental interest and constitutes an unreasonable restriction on expression. New York Law Journal reports on the decision.

Woman Arrested For Destroying Offensive Jesus Depiction In Museum Display

As reported by Fox News, since Sept. 11, the Loveland, Colorado Museum Gallery, a tax funded museum, has hosted a show titled "The Legend of Bud Shark & His Indelible Ink." It is a display of 82 prints by ten artists who have worked with Colorado printer Bud Shark. One of the prints is a 12-panel lithograph by Stanford University Professor Enrique Chagoya called "The Misadventures of Romantic Cannibals." Huffington Post has a photo of all the panels in its report on the show. While the show spent four months at the Museum of Contemporary Art in Denver without incident, in Loveland it has triggered protests as a Loveland City Council member and the media say that one of Chagoya' panels depicts Jesus having oral sex. However City Council voted 6-3 not to take up complaints about the exhibit. According to AP, on Wednesday, a 56-year old Montana woman, Kathleen Folden,who is a long-haul trucker, drove to Loveland and using a crowbar, broke the plexiglass case housing the panels and ripped up the offending panel. Here is a photo of the print after the attack. Police arrested Folden and charged her with felony criminal mischief. CNN reports today that Folden will plead not guilty, arguing that the print was not worth $1000, the threshold for bringing the charges as a felony. Folden's attorney said: "The real issue is the city of Loveland, which is not supposed to be endorsing or belittling religion. They specifically endorsed a piece that belittled Jesus Christ."

Friday, October 08, 2010

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.

Thursday, October 07, 2010

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."