Referee Concludes That Ohio Science Teacher Repeatedly Violated Establishment Clause

In Mount Vernon, Ohio on Friday, a referee appointed pursuant to an Ohio Revised Code 3319.16 has recommended that middle school science teacher John Freshwater's contract be terminated because of Freshwater's repeated violations of the Establishment Clause. (Full text of referee's findings.) The Mount Vernon City School Board voted unanimously in 2008 to fire Freshwater after an investigation of complaints that he taught creationism or intelligent design in class, told his class that anyone who is gay is a sinner, improperly used an electrostatic device to put a cross on the arm of a student, was excessively involved in the school's Fellowship of Christian Athletes and was insubordinate in failing to remove religious materials when ordered to do so by his principal. (See prior posting.)

In Friday's report, the referee, appointed after Freshwater demanded a hearing, concluded that while Freshwater was a successful and well-liked science teacher, he insisted on inserting his personal religious beliefs into his instruction.  The referee concluded that Freshwater:

persisted in his attempts to make eighth grade science what he thought it should be – an examination of accepted scientific curriculum with the discerning eye of Christian doctrine. John Freshwater ignored the concept of in loco parentis and, instead, used his classroom as a means of sowing the seeds of doubt and confusion in the minds of impressionable students as they searched for meaning in the subject of science. John Freshwater purposely used his classroom to advance his Christian religious views knowing full well or ignoring the fact that those views might conflict with the private beliefs of his students. John Freshwater refused and/or failed to employ objectivity in his instruction of a variety of science subjects and, in so doing, endorsed a particular religious doctrine.

Yesterday's Columbus Dispatch, reporting on these developments, points out that the board of education, whose composition now differs somewhat from that of the board that initially voted to fire Freshwater, is not bound to accept the referee's conclusions. Freshwater's hearing, that went on sporadically for nearly two years, cost taxpayers $700,000. Freshwater's activities have generated a number of lawsuits, all of which now have been concluded in one fashion or another. (See prior related posting.)

UPDATE: The Jan. 11 Mount Vernon (OH) News reports that the Mount Vernon City Schools Board of Education voted 4-1 to accept the referee's report and to fire Freshwater. Freshwater can still appeal this decision to a state common pleas court.

Suit Challenges Zoning Restrictions On New Jersey Synagogue

A long-simmering zoning dispute between an Orthodox Jewish congregation and officials in Teaneck, New Jersey (see prior posting) last month matured into a lawsuit.  The complaint (full text) in 554 Queen Anne Road, Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., filed 12/17/2010) alleges that restrictions placed on use of a property for religious worship by zoning authorities are vague, largely have no relation to land use objectives and are more onerous than restrictions placed on comparable secular and religious institutions. The dispute began as one over whether a house, used as a home by the rabbi of Etz Chaim of Teaneck, had been turned into a house of worship that needed zoning approval when religious services were moved from the living room to the family room. The synagogue agreed to apply for Board of Adjustment approval of use of the family room addition as a house of worship. However  the Board placed conditions on its use that the synagogue found unacceptable. Plaintiffs argue that the conditions imposed by the Board of Adjustment on Etz Chaim Synagogue violate the U.S. and New Jersey's constitutions, RLUIPA and New Jersey zoning laws. [Thanks to Thomas Rockland for the lead.]

Recent Articles and Books of Interest

From SSRN:
      U.S. Law:

• Ira C. Lupu and Robert W. Tuttle, The Forms and Limits of Religious Accommodation: The Case of RLUIPA, Cardozo Law Review, Vol. 32, 2011).
• Lloyd H. Mayer, Charities and Lobbying: Institutional Rights in the Wake of Citizens United, Notre Dame Legal Studies Paper No. 10-39, Jan. 4, 2011).

       Same-Sex Marriage:

• Mark Strasser, On Same-Sex Marriage and Matters of Conscience, (William and Mary Journal of Women and the Law, Vol. 17, pp. 1-36, 2010).
• Mark Strasser, Tribal Marriages, Same-Sex Unions, and an Interstate Recognition Conundrum, (Boston College Third World Law Journal, Vol. 30, pp. 207-37, 2010).
• Mark Strasser, Interstate Marriage Recognition and the Right to Travel, (Wisconsin Journal of Law, Gender and Society, Vol. 25, No. 1, pp. 1-34, Spring 2010).
• William E. Thro, The Heart of the Constitutional Enterprise: Affirming Equality and Freedom in Public Education, (Brigham Young University Education and Law Journal, 2011).

      Non-U.S. Law:

• Tanya Kateri Hernandez, Hate Speech and The Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models, (University of Pennsylvania Journal of International Law, Forthcoming).
• Avishalom Westreich, The Right to Divorce in Jewish Law: Between Politics and Ideology, (International Journal of the Jurisprudence of the Family, 2011).
• Prakash Shah, A Reflection on the Shari'a Debate in Britain, (Studia z Prawa Wyznaniowego (Studies of Ecclesiastical Law), Vol. 13, pp. 71-98, 2010).
• Germano Schwartz, The Representation of the Sacred and the Insufficient Functional Differentiation of the Legal System in Brazil, (January 3, 2011).

      Jurisprudential Concerns:

• Barbara P. Billauer, Optimal Justice: Education, Rehabilitation, Forgiveness - Or How Joseph Ends Sibling Rivalry and Becomes a Saint, (November 2, 2010).
• Ian C. Bartrum, Nonpublic Reasons and Political Paradigm Change, (St. John's Law Review, Forthcoming).
• Robert T. Miller, Review of Permutations of Order: Religion and Law as Contested Sovereignties, (Journal of Contemporary Religion, Vol. 25, No. 3, p. 471, 2010).
• Howard Lesnick, Can Liberal Religion Ground Moral Imperatives?, (U of Penn Law School, Public Law Research Paper No. 11-1, Dec. 22, 2010).

New Books:

• Brian T. Kaylor, Presidential Campaign Rhetoric in an Age of Confessional Politics, (Lexington Books, Dec. 2010).
• George C. Rable, God's Almost Chosen Peoples: A Religious History of the American Civil War, (Univ. of North Carolina Press, Nov. 2010), reviewed at Physorg.
• Paul Horwitz, The Agnostic Age: Law, Religion and the Constitution, (Oxford Univ. Press, Jan. 2011), text of Introduction at SSRN.

EEOC Religious Accommodation Suit Settled

The EEOC announced last week that an educational testing company, Measurement Inc., has settled a lawsuit filed against it by the EEOC charging it with religious discrimination.  The suit was brought on behalf of employee Jacqueline Dukes who was a member of the Christian denomination Children of Yisrael. Her religious beliefs preclude her from working on her Sabbath, from sundown Friday to sundown Saturday. Her employer fired her for refusing to work on her Sabbath instead of accommodating her religious beliefs.  In the settlement, Measurement Inc. has agreed to pay compensatory damages plus $110,000 in back pay.  The three-year consent decree also requires the company to avoid further religious discrimination, institute anti-discrimination training, post a notice about the lawsuit and report on its handling of other religious accommodation requests. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Daker v. Warren, 2011 U.S. Dist. LEXIS 99 (ND GA, Jan. 3, 2011), a Georgia federal district court permitted plaintiff to proceed with his claim that his free exercise rights and his rights under RLUIPA were violated by Detention Center policies that deny Muslim inmates Friday Jum'ah sevices and that bar inmates from receiving hard cover books. Plaintiff claims he is required to seek knowledge about Islam in part from books that are available only in hard cover.

In Salvatierra v. Connolly, 2011 U.S. Dist. LEXIS 10 (SD NY, Jan. 3, 2011), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 137731, Sept. 1, 2010), and, while dismissing a number of claims, permitted an inmate to proceed with his claim that a corrections officer hit him in the face with his kosher meal bag while making a derogatory remark about it. This caused him to stop eating kosher meals to prevent problems with the officer.

In Kennedy v. Hayes, 2010 U.S. Dist. LEXIS 138296 (ED CA, Dec. 28, 2010), a California federal magistrate judge rejected an inmate's challenge to disciplinary action taken against him for threatening a doctor by telling the doctor that "God will take care of you." The court rejected plaintiff's argument that this was merely an expression of plaintiff's religious beliefs.

In Parks v. Brooks, 2010 U.S. Dist. LEXIS 138135 (D NV, Dec. 15, 2010), a Nevada federal district court dismissed an inmate's RLUIPA claims growing out of alleged denial of kosher meals to him. The court held that plaintiff's claim for an injunction is moot and that under RLUIPA monetary damages are not recoverable against defendants in in either their official or individual capacities.

In Simmons v. Robinson, 2011 U.S. Dist. LEXIS 337 (SD NY, Jan. 4, 2011), a New York federal district court rejected plaintiff's objections and accepted a magistrate's recommendation (2010 U.S. Dist. LEXIS 138332, Jan. 28, 2010), to dismiss claims by a Muslim prisoner at Sing Sing that prison officials inadequately protected his food on the religious alternative menu from pork contamination.

In Rinehart v. Beck, 2011 U.S. Dist. LEXIS 1037 (ED NC, Jan. 4, 2010), a North Carolina federal district court rejected an inmate's free exercise challenge to the prison's policy barring inmates from possessing disposable razors. Plaintiff had argued that he fears the health consequences of shaves by prison barbers using electric razors, so his only alternative is to convert to Islam to take advantage of the limited exception allowing Muslim inmates to use disposable razors to shave certain areas of the body as a part of their religious hygiene.

Lutheran University Entitled To Title VII Exemption For Religious Hiring; Exemption Cannot Be Waived

In Ginsburg v. Concordia University, (D NE, Jan. 5, 2011), a Nebraska federal district court held that that a Lutheran university sued under title VII of the 1964 Civil Rights Act is entitled to the exemptions provided by the statute for religious-based hiring by religious educational institutions (42 USC 2000e-1) and by religious colleges (42 USC 2000e-2). The lawsuit was brought by a woman's softball coach who claimed he was dismissed because he was Catholic, not Lutheran. The court rejected plaintiff's argument that the school waived its exemption when it hired him knowing he was not Lutheran. The court held that an institution cannot waive its right to assert the statutory exemptions, and that the exemption covers those employed in any of the institution's activities, not just in activities overtly religious in nature. The case is covered in yesterday's BNA Daily Labor Report (subscription required).   [Thanks to Steven H. Sholk for the lead.]

Class Action Charges Anti-Semitism in New York Town's Schools

Today's Lower Hudson Journal News reports on a class action lawsuit filed last month in a New York federal district court charging the Mahopac (NY) Central School District with anti-Semitism. The complaint alleges that Jewish students in Mahopc face a strong anti-Semitic environment. It claims that Jewish children in the Mahopac schools "are subjected to the widespread use of racial and religious epithets and slurs, including being subjected to depictions of swastikas and other symbols and references to Nazism and the Holocaust ... not only by students but also by school officials themselves." School system lawyers say that the school system denies the allegations.

UPDATE: Here is the full text of the complaint in N.B. v. Mahopac Central School District, (SD NY, filed 12/8/2010). [Thanks to Peter D. Hoffman.]

New Trial Granted In Patent Case Because of Lawyer's Remarks Appealing To Religious Prejudice

In Commil USA, LLC v. Cisco Systems, Inc., (ED TX, Dec. 29, 2010), a Texas federal district court judge has granted plaintiff a new trial in a patent infringement case because of remarks made during trial by defendant's counsel appealing to possible anti-Jewish prejudices of jurors.  The jury awarded plaintiff $3.7 million on its direct infringement claims. The new trial was awarded on the issues of indirect infringement and damages. As recounted by the court:

Jonathan David, one of the owners of Commil ... is Jewish. While cross-examining Mr. David, Cisco's counsel inquired whether Mr. David had met with Nitzan Arazi, one of the inventors .... Mr. David responded affirmatively, explaining that they had had dinner at a barbeque restaurant, to which Cisco's counsel inexplicably responded: "I bet not pork."

When the court asked Cisco’s counsel to explain the relevance of his comment, Cisco's counsel admitted that it had no relevance to any issue in the case.... Thereafter, Cisco's counsel apologized to the witness, and the court gave a curative instruction.

Although Cisco's counsel acknowledged that his pork comment was inappropriate, he nevertheless proceeded to make further remarks regarding religious practices. Cisco's counsel’s closing argument began:

Ladies and Gentlemen of the Jury, you are, in this case, truth-seekers.... You remember the most important trial in history, which we all read about as kids, in the Bible had that very question from the judge. What is truth?

Cisco's counsel was referring to the trial of Jesus, which was presided over by Pontius Pilate. This argument, when read in context with Cisco's counsel's comment regarding Mr. David and Mr. Arazi's religious heritage, impliedly aligns Cisco’s counsel’s religious preference with that of the jurors and employs an "us v. them" mentality – i.e., "we are Christian and they are Jewish."

American Lawyer yesterday reported on the decision.

Conservatives Urge Republicans In New Congress To Remember Social Issues

Freedom Federation announced today that leaders of 30 conservative groups have sent a letter (full text) to Republican leaders of the House and Senate in the 112th Congress urging them not to forget social issues as they pursue economic and national defense issues as well. The letter says in part:

 A stool with only one or two legs is unstable.... When considering America’s fiscal and national defense policies, which are critically important, we believe that social issues, including, but not limited to, the sanctity of human life and the preservation of marriage as the union of one man and one woman, are indispensible.

Sen. Grassley Releases Staff Memo On Tax Issues Involving Tele-Evangelists

Iowa Senator Chuck Grassley, ranking member of the Finance Committee, yesterday released a staff review of the activities of media-based ministries, focusing on the financial accountability of tax-exempt religious organizations. The 61-page Staff Memo sets out a number of recommendations and issues for further study. These include a recommendation that the IRS sponsor an Advisory Committee made up of representatives of churches and other organizations. The staff also suggested examination of possible changes in the tax code provisions on parsonage allowances, a filing requirement for new entities planning to claim church status, and possible changes in the church tax inquiry provisions of the Internal Revenue Code. The staff also identified other areas of concern that apply more broadly to qualification of non-profits for special tax treatment. These include issues of governance and self dealing; tax treatment of excess benefit transactions; tax treatment of so-called "love offerings"; and repeal or reform of the electioneering prohibition. The press release also contains links to correspondence and several other staff overviews of six tele-evangelists who have been the focus of investigation by Grassley. (See prior posting.)

In a related announcement yesterday, the Evangelical Council for Financial Accountability reports that, at Senator Grassley's request, it has formed an independent national commission to study accountability and policy issues affecting churches and religious organizations. [Thanks to Suzanne Sataline for the leads.]

Religious Makeup of 112th Congress Reported

Pew Forum this week published data on the religious composition of the 112th Congress which has just convened. The new Congress is 57% Protestant; 29% Catholic; 7% Jewish; 3% Mormon; 1% Orthodox; 0.6% Buddhist; and 0.4% Muslim. The Protestant denominations that claim the most Congressional members are the Baptists, Methodists, Presbyterians, Episcopalians and Lutherans.

Israel's High Court Allows Voluntary Sex-Segregated Buses

Haaretz and YNet News both report on a decision handed down yesterday by Israel's High Court of Justice that allows sex-segregated public buses that serve strictly Orthodox communities to continue on a voluntary basis.  The so-called "Mehadrin" (extra-Kosher) bus routes-- about 50 in all-- were created to satisfy strictly Orthodox Jews whose religious traditions require separation of men and women. However a lawsuit challenging the practice was filed by a group of women and the Israel Religious Action Center in 2007 after women who refused to sit in the back of buses complained about being harassed. (See prior posting.)

Israel's High Court essentially accepted recommendations of the Transportation Ministry that the routes continue, but that no woman can be coerced into complying with the voluntary sex segregation. In its opinion, however, the Court found mandatory sex-segregation illegal. Justice Elyakim Rubenstein, invoking analogies from U.S. law, wrote:

A public transportation operator, like any other person, does not have the right to order, request or tell women where they may sit simply because they are women. They must sit wherever they like. As I now read over these lines emphasizing this, I am astounded that there was even a need to write them in the year 2010. Have the days of Rosa Parks, the African-American woman who collapsed the racist segregation on an Alabama bus in 1955, returned?

The Court ordered the Transportation Ministry to place signs in all the Mehadrin buses stating that any passenger is free to sit anywhere, and that harassing a passenger on the issue may constitute a criminal offense. During a 30 day trial period, the Ministry must conduct both open and covert inspections to see that the plan is working and must create a complaint center to receive complaints from women who believe they have been treated improperly in this regard. A broader report titled Excluded, for God's Sake: Gender Segregation in Public Space in Israel was published last November by the Israel Religious Action Center.

Court Rejects Church's Objection To Historical Designation

In Roman Catholic Bishop of Springfield v. City of Springfield, 2011 U.S. Dist. LEXIS 345 (D MA, Jan. 4, 2011), a Massachusetts federal district court rejected a number of constitutional challenges as well as a challenge under RLUIPA to action declaring a closed Springfield, Massachusetts Catholic church to be a local historic district. The action subjects the church to oversight by the Historical Commission in altering physical aspects of the church building, possibly including religious iconography. The diocese argued that the process of deconsecrating the church might be impeded by this requirement. The court found that the only issue before it was whether the requirement to file an application before attempting to alter or demolish the building imposed unconstitutional or illegal conditions. The court found that it did not. If a plan is formulated and the Historical Commission rejects it, then, according to the court, further judicial consideration could be in order.

Iran Arrests Christian Missionaries

According to AFP, Iran's state news agency announced on Tuesday that a number of Christian missionaries have been arrested in Tehran province. Provincial governor Morteza Tamaddon has promised to detain more, saying:

Just like the Taliban... who have inserted themselves into Islam like a parasite, they have crafted a movement with Britain's backing in the name of Christianity. But their conspiracy was unveiled quickly and the first blows were delivered to them.

Elam reports the number initially arrested in early morning raids the day after Christmas was 25, but that eleven of those have been released. The remaining 14 are still in prison. Unconfirmed reports indicate additional arrests.

New Mexico's Attorney General Says Out-of-State Gay Marriages Are Valid In State

New Mexico's Attorney General, in Opinion No. 11-01 (Jan. 4, 2011), has ruled that same-sex marriages which are valid under the law of the state or country where the marriage was consummated are likewise valid in New Mexico. Attorney General Gary King reasoned that while the federal Defense of Marriage Act permits states to prohibit recognition of out-of-state same-sex marriages, New Mexico has not enacted a prohibition on their recognition. Therefore principles of comity codified in New Mexico law, that call for recognition of marriages validly performed elsewhere, control. Even though same-sex marriages cannot be performed in New Mexico, that is not enough to bring them within the exception to the comity principle that applies when a marriage is contrary to the state's public policy. Yesterday's Santa Fe New Mexican reports on the Opinion. [Thanks to Alliance Alert for the lead.]

Suit Challenges Zoning Refusal For Christian School

On Tuesday, a Christian school in Upper Arlington, Ohio filed suit in federal court claiming violations of RLUIPA, of the 1st and 14th Amendments and of Ohio's constitution.  The case stems from the city's rejection of the school's attempt to apply for zoning approval of a new site on which the school planned to consolidate its four separate campuses. The complaint (full text) in Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (SD OH, filed 1/4/2011), argues that other similar or identical uses-- such as child day care centers and hotels-- are allowed by the city's zoning rules. In its press release announcing the filing of the lawsuit, Alliance Defense Fund said: "A city’s zoning code cannot give preferential treatment to non-religious institutions that function similarly to a Christian school...."

Delaware Diocese To File Modified Bankruptcy Reorganization Plan

The Wilmington (DE) News Journal yesterday reported that next week the Roman Catholic Diocese of Wilmington, Delaware, currently in bankruptcy court (see prior posting), will file a new reorganization plan that will offer higher settlements to some 150 clergy abuse victims who have sued.  The increased amounts are possible because under the new plan individual parishes and religious orders will contribute to the settlement pool. Further complications could arise, however, as on Tuesday a group of non-ordained church employees filed suit in bankruptcy court seeking to prevent $4.4 million of its pension funds from being included in the pool used to compensate abuse victims.

Alleged Assassin of Pakistani Governor Has Supporters

As previously reported, in Pakistan on Tuesday Salman Taseer, governor of Punjab province, was assassinated by one of his own security guards who was angered by Taseer's support for a pardon for Aasia Bibi, the Christian woman recently sentenced to death for blasphemy. While police charged the shooting suspect, Malik Mumtaz Hussain Qadri, with murder, terrorism and violence, Qadri also has supporters. AP reported yesterday on Qadri's first appearance in court:

A rowdy crowd slapped Malik Mumtaz Hussain Qadri on the back and kissed his cheek as he was escorted inside the court today. Lawyers not involved in his case tossed rose petals, while hundreds of sympathisers chanted slogans in his favour and one gave him a flower necklace.

According to a report from 660 News Radio,  a group of influential clerics and scholars from the anti-Taliban Barelvi sect praised Taseer's assassination. A statement from their organization, Jamaat Ahle Sunnat, said: "The supporter is as equally guilty as one who committed blasphemy," and warned that a lesson should have been learned from Taseer's "exemplary death."

Articles Suggest Religious Liberty Trends For Next Decade

Associated Baptist Press yesterday carried three interesting pieces projecting future trends in religious liberty and church-state matters.  In answers to questions about religious freedom trends for 2011 and for the next decade, George Washington University law professor Ira "Chip" Lupu focused on issues that included more-assertive atheism, gay rights and anti-Muslim cultural attitudes in Europe. A similar interview with church-state expert Melissa Rogers included items such as the growing number of individuals who claim no religious affiliation, the debate over conscience clauses issues in health care matters, and possible debates about Mormonism if Mitt Romney runs for president in 2012. Both experts had much more to say, so that a full read of their responses is worthwhile. Finally ABP carried an article by ABP managing editor Robert Marus setting out further analysis of some of the trends suggested by Lupu and Rogers.

Army's "Spiritual Fitness" Assessment Is Criticized As Church-State Violation

Over the last week or so, criticism of the U.S. Army's Comprehensive Soldier Fitness assessment program has been growing from supporters of church-state separation. According to an Army website:

Beginning at accession, each recruit will be confidentially assessed using the Global Assessment Tool, a survey that determines the psychological strength of the individual. Soldiers will be re-assessed throughout their career, helping them monitor and control personal growth. Based on the assessment, CSF will offer a menu of appropriate self-development opportunities to Soldiers.

The assessment includes questions on "spiritual fitness." According to a Dec. 29 letter from the Freedom from Religion Foundation to the Secretary of the Army questioning the constitutionality of the evaluation, soldiers are asked to indicate how they identify with statements such as "I am a spiritual person." FFRF says that soldiers scoring low on spiritual fitness are furnished training modules that contain explicit and implicit religious references. On Dec. 30, the Military Religious Freedom Foundation also sent a letter to the Pentagon arguing that the program violates the Establishment Clause and demanding that it be ended. Yesterday, Truthout ran a long article by reporter Jason Leopold critical of the program. A Jan. 3 post at God and Country blog defends the program, saying in part:

The "scandal" over the Army’s SFT would be a tempest in a teapot — if it was a tempest at all. Instead, its an imagined (or contrived) offense..... The Army is fighting an uphill battle in stemming suicides, and helping Soldiers understand the value of their own lives — their meaning, purpose, and connection — is a reasonable, noble, and secular effort to that end.