Religion Clause

Tuesday, January 11, 2011

Arizona Moving To Pass Funeral Picketing Law In Face of Westboro Plans To Picket Massacre Victims' Funerals

The notorious Westboro Baptist Church has announced that it will picket the funerals of the six shooting victims in Tucson, Arizona. It claims God sent the shooter because of a veteran's plans last month to shoot at WBC members. The announcement also claimed that shooting a federal judge and a member of Congress occurred because WBC was placed on trial in Baltimore and because Congress' passed three laws against WBC. CNN reports that Tucson residents plan to shield mourners at the funeral of 9-year old victim Christina Green by wearing 8 x 10 foot angel wings. Meanwhile, according to TPM today, members of the Arizona state legislature are reacting by moving to quickly enact a law barring funeral protests.

UPDATE: Politico reports that on Jan. 11 the legislature passed and the governor signed SB 1101 barring protests within 300 feet of a funeral from one hour before to one hour after the ceremony.

Some Claims On Behalf of Muslim Student Over Classroom Content May Proceed

In Doe v. Cape Henlopen School District, (D DE, Jan. 7, 2011), the mother of a Muslim student sued claiming that her daughter's fourth-grade teacher created a classroom environment that promoted Christianity and excluded Muslim beliefs. The suit also alleged that the daughter was traumatized by a transfer to another classroom and her friends' reactions to her after that. The Court granted defendants' summary judgment on certain of the claims but found that as to a number of others there remained genuine issues of material fact so that the claims should proceed to trial. At issue were teacher Cindy Cunningham's class discussions of the events of 9/11 and her reading of Christmas books to her class every day between Thanksgiving and Christmas. The court concluded that the issue of whether the Christmas readings violate Art. 1, Sec. 1 of the Delaware Constitution (protecting religious freedom and barring religious preferences) and the federal equal protection clause should go to trial, but dismissed claims regarding the 9/11 textbook used and a deliberate indifference claim. The court also found that the student's transfer to another classroom may have been retaliation and ordered that claim to go to trial, and refused to find at this point that defendants had qualified immunity. [corrected]

Cert. Denied In RLUIPA Zoning Decision

The U.S. Supreme Court yesterday denied certiorari in Board of County Commissioners v. Rocky Mountain Christian Church,(Docket No. 10-521, cert. denied 1/10/2011) (Order List). In the case, the 10th Circuit held that sufficient evidence was presented at trial to justify the jury's determination that the denial of a special use application to Rocky Mountain Christian Church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The Boulder (CO) Daily Camera reported on the Supreme Court's refusal to review the case.

Catholic Bishop At Odds With Rhode Island's New Governor

Tension seems to be developing already between Providence, Rhode Island Catholic Bishop Thomas Tobin and Rhode Island's newly-inaugurated governor, Lincoln Chafee. According to the Providence Journal, last week, for the first time in at least 20 years, no Catholic bishop offered a prayer at the governor's inauguration ceremony. In a column published two days later in The Rhode Island Catholic, Bishop Tobin took issue with the reason for Chaffee's decision not to begin inauguration day with a public prayer service. Chaffee's spokesman said that the decision was made out of respect for the principle of separation of church and state. Bishop Tobin complained:

The point is this: religion has an important, indeed a unique contribution to make to the governance of our society. Can we, once and for all then, put to rest the bogus interpretations of the “separation of church and state” so often cited these days?

The Governor's spokesman later said that had misspoken. He meant to say that the governor believed individuals should pray in their own ways instead of in a prayer service organized by the governor's office. Within days, Bishop Tobin again criticized Gov. Chaffee, this time for his support for a bill to legalize same-sex marriage in Rhode Island. According to the Providence Journal, a gay-marriage bill supported by the governor was introduced in the legislature last Friday. Tobin called the bill morally wrong and divisive.

Aga Khan Wins Canadian Copyright Case Against Followers Who Published His Pronouncements

The Aga Khan, currently a resident of France, is the spiritual leader of the Shia Imani Ismaili Muslims around the world. He gives advice and guidance to his followers through issuing Farmans (recorded talks) an Talikas (written religious messages). In 2009, one of the Aga Khan's followers, Nagib Tajdin (with the assistance of others) published Farmans 1957-2009 – Golden Edition Kalam-EIman-E-Zaman, a collection of the Aga Khan's Farmans and Talikas. Ismaili authorities asked them to cease publication, but they refused, claiming that they had the consent of the Aga Khan to publish them. Tajdin claimed that a letter from the Aga Khan asking him to cease publication was a forgery. This led to the Aga Khan bringing suit in Canada's Federal Court claiming copyright infringement. In Aga Khan v. Tajdin, (Fed. Ct. Canada, Jan. 7, 2011), the court concluded that the Aga Khan had not given his consent to others to publish his pronouncements and permanently enjoined defendants from publishing or distributing the Golden Edition. It also issued a reference for the determination of damages. Vancouverite reports on the decision.

Pope Addresses Diplomatic Corps Calling For Expanded Religious Liberty

Yesterday Pope Benedict XVI delivered his annual address (full text) to the diplomatic corps accredited to the Holy See-- ambassadors from 178 countries. Zenit reports that Vatican officials characterized the Pope's remarks as opening a new chapter in the commitment to religious liberty. Here are a few excerpts:

[T]he attacks which brought death, grief and dismay among the Christians of Iraq, even to the point of inducing them to leave the land where their families have lived for centuries, has troubled us deeply. To the authorities of that country and to the Muslim religious leaders I renew my heartfelt appeal that their Christian fellow-citizens be able to live in security, continuing to contribute to the society in which they are fully members.

In Egypt too, in Alexandria, terrorism brutally struck Christians as they prayed in church. This succession of attacks is yet another sign of the urgent need for the governments of the region to adopt, in spite of difficulties and dangers, effective measures for the protection of religious minorities.....

Among the norms prejudicing the right of persons to religious freedom, particular mention must be made of the law against blasphemy in Pakistan: I once more encourage the leaders of that country to take the necessary steps to abrogate that law, all the more so because it is clear that it serves as a pretext for acts of injustice and violence against religious minorities....

Turning our gaze from East to West, we find ourselves faced with other kinds of threats to the full exercise of religious freedom. I think in the first place of countries which accord great importance to pluralism and tolerance, but where religion is increasingly being marginalized. There is a tendency to consider religion, all religion, as something insignificant, alien or even destabilizing to modern society, and to attempt by different means to prevent it from having any influence on the life of society.....

UPDATE: The Jan. 11 Wall Street Journal reports that in response to the Pope's criticism, Egypt recalled its ambassador to the Vatican. [Thanks to Pew Sitter for the lead.]

Canadian Court Rejects Exemption for Marriage Commissioners from Performing Same-Sex Unions

The Court of Appeal for Saskatchewan has held that it would be unconstitutional under Canada's Charter of Rights and Freedoms for the provincial legislature to accommodate the religious beliefs of government marriage commissioners by exempting those who object from solemnizing same-sex marriages. The decision came in Marriage Commissioner's Reference, (Ct. App. SK, Jan. 10, 2011), a request of the Saskatchewan government to pass on the validity of two possible amendments to the Marriage Act. Here is a summary of the court's holding as set out in the court's case summary:

The reasoning of the Court is grounded in section 15(1) of the Charter.. prohibit[ing] discrimination based on various characteristics including sexual orientation.... [A] law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

... [T]he Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples.... [M]arriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies.... [T]he obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship.... [A]llowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.

CTV News reports on the decision. Toronto Globe and Mail reports that Saskatchewan will not appeal the ruling.

Monday, January 10, 2011

Cert. Denied In RLUIPA Prisoner Free Exercise Case

The U.S. Supreme Court today denied certiorari in Thunderhorse v. Pierce, (Docket No. 09-1353, cert. denied 1/10/11) (Order List). In the case, the 5th Circuit rejected a RLUIPA claim by a Native American inmate, upholding prison restrictions denying him permission to grow his hair, prohibiting him from performing pipe ceremonies in his cell, and limiting vendors from whom he could buy a headband. (See prior posting.) The petition for review (via Scotus blog), focusing on the prison's grooming rule, asserts that there is a split in circuits on the question of how much deference to give to prison officials under RLUIPA in deciding whether the government has used the least restrictive means to achieve a compelling interest.

New Hampshire High Court Hears Arguments In Home Schooling Case

The New Hampshire Supreme Court last week heard oral arguments (video of full arguments) in a divorce case that has gained national attention through the publicity given to it by groups that see it as an important religious freedom test. As reported by AP, at issue is a disagreement between parents with joint custody of their 11-year old daughter over her schooling. Amanda, daughter of Brenda Voydatch and Martin Kurowski, was home schooled by her mother through the fourth grade using Christian-based material from Bob Jones University. In 2009, Amanda's parents were unable to agree on where she should continue her education. Amanda's father wanted her exposed to different points of view and more social interaction than was available through home schooling. When the parents could not agree on an alternative, a state family court judge ordered that Amanda attend public school. The mother's attorneys characterize this as punishing the mother and daughter for their religious views. However the case may turn on whether the lower court order is seen as a modification of the parenting plan, which would require the father to show that Amanda was being harmed by home schooling. [corrected]

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.]

Sunday, January 09, 2011

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.

Saturday, January 08, 2011

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.]

Friday, January 07, 2011

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.