Court Preliminarily Enjoins Enforcement of County Funeral Picketing Law

In Phelps-Roper v. County of St. Charles, Missouri, (ED MO, Jan. 24, 2011), a Missouri federal district court issued a preliminary injunction against a St. Charles (MO) County Ordinance that prohibits picketing within 300 feet of a funeral. In the lawsuit, filed on behalf of members of the Westboro Baptist Church, the district court concluded that 8th Circuit precedent make it likely that the law would be invalidated as not narrowly tailoered or as facially over broad. Suburban Journals reports on the decision.

Hockey Player Sues Teams and Coaches For Anti-Semitic Harassment

TSN and CNN reported yesterday that Jason Bailey, a Jewish hockey player, has filed suit in a California state court alleging an anti-Semitic work environment created by the coach and assistant coach of the Bakersfield (CA) Condors.  The suit also names as defendant the Anaheim Ducks, the Condors' parent team. The suit alleges that the coaches directed anti-Semitic remarks at him, forced him to travel apart from the team and denied him playing and practice time. At one point, the Condors forced the coaches to send letters of apology to Bailey, but Bailey says they were insincere.

Ban On Firearms In Churches Does Not Infringe Free Exercise Rights

In GeorgiaCarry.Org, Inc. v. State of Georgia, (MD GA, Jan. 24, 2011), a Georgia federal district court upheld the constitutionality of a Georgia statute that prohibits the carrying of firearms in any place of worship. The suit was brought by a firearms group, a Baptist church and its pastor. Plaintiffs alleged that the restriction infringed their free exercise of religion. They argued that their ability to attend or conduct worship services was burdened by prohibiting them from carrying a firearm for self defense while doing so. The court rejected the argument, finding that the restriction did not amount to a substantial burden on plaintiffs' religious exercise, nor does it unconstitutionally infringe on the church's ability to manage its internal affairs. The court also rejected plaintiffs' Second Amendment challenge to the law. Finally the court held that the state of Georgia (as opposed to other officials named as defendants) enjoyed sovereign immunity against the claims asserted. The Atlanta Journal Constitution reports on the decision.  Links to the pleadings and other documents in the case are available form GeorgiaCarry's website.

UPDATE: The Atlanta Journal Constitution reports that on Jan. 26  Georgia Carry filed a notice of appeal to the 11th Circuit.

India's Supreme Court Withdraws Language Criticized By Christians

According to Cath News, India's Supreme Court today withdrew on its own initiative a paragraph in an opinion it handed down last week that had created significant concern among Christian leaders and human rights groups. At issue was the court's decision reviewing the life sentence imposed on radical leader Dara Singh who was convicted of leading a mob that set fire to a station wagon in which Australian missionary Graham Staines and his two sons were sleeping, killing the three.  The prosecution has sought the rarely-imposed death penalty, but the lower court imposed life imprisonment. In upholding the sentence, the Supreme Court originally said that the killers had acted with the "intention to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur." Critics said the language would embolden Hindu radicals and that it is inconsistent with Sec. 25 of the Indian Constitution that allows individuals to profess, practice and propagate their religion.

Swiss High Court Says No To Trademark Registration of "Madonna"

International Law Office yesterday published an analysis of an interesting trademark law decision handed down in September 2010 by Switzerland's Federal Supreme Court.  The court refused to add the figurative international trademark "Madonna" to the Swiss Trademark Register on the ground that commercial use of the term-- a reference to the Virgin Mary-- would be immoral under Swiss trademark law. Commercial use of the term could hurt the religious feelings at least of Italian speaking Catholics in Switzerland. The court however said that religious terms could be registered where the public has become accustomed to their commercial use (such as the names of saints used for alcoholic beverages), or where the trademark is for goods or services with religious content.

Court Finds Priest Abuse Claim Against Diocese Is Not Time-Barred

In Wisniewski v. Diocese of Belleville, (Ill. App., Jan. 13, 2011), an Illinois appellate court in a 2-1 decision rejected a statute of limitations and repose defense raised by a Catholic diocese held responsible for sexual abuse by a priest.  In a lengthy decision, the majority found that the fraudulent concealment doctrine tolled the statute of repose in the suit in which a jury had awarded plaintiff $2.4 million in compensatory damages and $2.6 million in punitive damages. The court also upheld the legal sufficiency of plaintiff's claim on the merits, stating:

[T]he Diocese had knowledge of Kownacki's [the priest's] propensity to abuse minor children, plying them with alcohol prior to abusing them and telling them the abuse was a good thing. The Diocese placed Kownacki in the position to abuse Wisniewski in the same manner, and the Diocese facilitated and promoted Kownacki's abuse not only through silence but through affirmative acts of misrepresentation concerning Kownacki's character . Almost all the abuse ... occurred on church property that Kownacki occupied solely because of his position as a priest of the Diocese. The opportunity for abuse created by the Diocese called for the exercise of control by the Diocese. Its failure to do so is unquestionably actionable in Illinois courts.

Judge Spomer dissented, arguing that under then-applicable statute of repose, plaintiff's claims were time barred in 1991 when he reached the age of 30.

Suit Challenges School's Refusal To Install Pavers With Biblical Verses

The Desert Sands (CA) Unified School District Board in late 2009 approved a PTO fundraiser. Parents, community members and students were given the opportunity to purchase bricks and benches that would be placed permanently on the new Palm Desert High School campus. Purchasers were allowed to have brick pavers they purchased engraved with a message of their choice. However the school refused to install pavers from two donors who had Bible verses inscribed on theirs. Last Thursday the two donors filed a lawsuit challenging the refusal. The complaint (full text) in Hart v. Tomack, (CD CA, filed 1/20/2010) claims that the denial amounts to unconstitutional viewpoint-based discrimination in a designated public forum. It also alleges that the school's policy amounts to an unconstitutional prior restraint because it delegates to school officials unbridled discretion to reject religious speech by community members. It also alleges equal protection, free exercise, establishment clause and due process violations. Alliance Defense Fund issued a release announcing the filing of the lawsuit.

Supreme Court OK's Suits Under Title VII For Retaliation Against 3rd Parties

In Thompson v. North American Stainless, LP, (US Sup. Ct., Jan. 24, 2011), the U.S. Supreme Court held that Title VII of the 1964 Civil Rights Act allows suit by a third party who was the victim of retaliation because someone else-- here plaintiff's fiancee-- filed an anti-discrimination claim. While this case involved a sex discrimination claim, the holding would also apply to employer retaliation against a third-party employee based on the filing of religious discrimination charges. (CNN reports on the decision.)

ADL Has Become Leading Defender of Mosque Construction Projects

According to a report yesterday by CNN, the Anti-Defamation League over the last few months has become a leading advocate supporting mosque construction projects around the country against local opposition.  Generally it has invoked RLUIPA to support mosque zoning applications.  The role has surprised some because of the high profile, and much criticized, opposition by the ADL last July to the proposed construction of a mosque and Islamic Center near Ground Zero in New York City. (See prior posting.)  However last September the ADL launched the Interfaith Coalition on Mosques. Last week the ADL wrote a letter, supported by the Coalition, to the mayor and city council of Temecula, California supporting construction of a 25,000 square foot mosque project there that is to be voted on today. The Coalition, however, is itself controversial. Last Friday, the president of the Southern Baptist Convention's Ethics and Religious Liberty Committee, Richard Land, withdrew from the interfaith Coalition, explaining: “While many Southern Baptists share my deep commitment to religious freedom and the right of Muslims to have places of worship, they also feel that a Southern Baptist denominational leader filing suit to allow individual mosques to be built is 'a bridge too far'." The Christian Post reports further on Land's withdrawal.

Recent Articles of Interest

From SSRN:

• Christopher McCrudden, Religion and Education in Northern Ireland, (Oxford Legal Studies Research Paper No. 2/2011, Jan. 16, 2011).
• Jayeel Cornelio, Being Catholic as Reflexive Spirituality: The Case of Religiously Involved Filipino Students, (Asia Research Institute Working Paper No. 146, Jan. 20, 2011).
• Sayani Mitra, Cast System and Social Reform in India, (January 17, 2011).
• David B. Cruz, The Defense of Marriage Act and Uncategorical Federalism, (William and Mary Bill of Rights, Vol. 19, March 2011).
• Lorin C. Geitner, The ‘Next Friends’ Suit: Mary Baker Eddy and The Church of Christ Scientist, on Trial, (Sacred History Magazine, 2010).
• Lorin C. Geitner, Merry Season’s Controversy, (Orange County Lawyer, Forthcoming).
• Lorin C. Geitner, Law and Religion – the First Amendment and the Problems of Alienation, (Orange County Lawyer, Forthcoming).
  

From SmartCILP:

• Bruce Ledewitz, Seeking 'Common Ground:' A Secular Statement, 38 Hastings Constitutional Law Quarterly 49-90 (2010).

Texas County Puts Donated 10 Commandments Monument On Courthouse Square

The Oldham County Texas commission last year approved residents placing a Ten Commandments monument on Courthouse Square, so long as county funds were not spent on it. The Amarillo Globe-News yesterday reported that a 4-ton granite monument is now in place, positioned so it is surrounded by three historical markers-- honoring the senator for whom the county is named, the county's first physician and Old Tascosa. Churches and individuals in Oldham County donated $11,000 to cover the cost of the monument. An inscription on the monument reads in part: "Dedicated to our loving Lord God, our founding fathers and our great nation ... Donated by the people of Oldham County." Oldham County Judge Don Allred says of the monument: It fits our community values."

British Government Spends Large Amounts Studying Anti-Discrimination Compliance

Last year, the British Parliament passed the Equality Act 2010, replacing nine separate anti-discrimination laws that previously existed. The London Mail yesterday reported that government departments and other public bodies have spent large amounts on studies to promote and assure compliance with the new law. Among the studies highlighted by the paper's report is an impact assessment to ensure that minority groups are able to take full part in the Queen's Diamond Jubilee celebrations next summer; a government study of the impact of India's traditional caste system on discrimination in the UK; and a report on how changes in programs to help the disabled find jobs will impact issues such as religion and gender reassignment.

U.S. Catholic Bishops Support Amendment, Not Repeal, of Health Care Law; Release Other Policy Priorities

In a press release last week, the U.S. Conference of Catholic Bishops announced that it will not support total repeal of last year's health care reform bill. Instead, according to a letter it sent to members of the House of Representatives, it will seek action by Congress to amend the law to ensure access to quality, affordable, life-giving health care for all; to retain requirements that effectively protect conscience rights and that prohibit use of federal funds for elective abortion or for insurance plans that include them. Finally it will seek to protect immigrants' access to health care and to remove current barriers to access.  Last year while the health care bill was pending, the bishops urged defeat of it because of their belief that limits on abortion funding did not go far enough. (See prior posting.)

In a long letter to all members of Congress (text included in press release), the bishops also outlined their other legislative priorities for the new Congress. These include protecting the unborn; supporting traditional marriage; seeking budget, tax and entitlement policies that protect the poor and vulnerable; funding for private schools; empowering faith-based groups; assuring equal access to the Internet; immigration reform; and various international initiatives to end conflicts, protect religious freedom and provide aid.

Episcopal Church Awarded Fort Worth Diocese Property

The Episcopal Church (TEC) has successfully asserted a claim to the property of a Texas diocese that broke away to affiliate with the more conservative Anglican Province of the Southern Cone.  In The Episcopal Church v. Salazar, (TX Dist. Ct., Jan. 20, 2011), a Texas state trial court held that property of the Diocese of Fort Worth belongs to the individuals who remain loyal to the hierarchical church body. It ordered defendants to turn the property over to TEC within 60 days, along with an accounting of all Diocesan assets. The court also ordered defendants to stop holding themselves out as leaders of the Diocese, and called for the parties to submit a more detailed declaratory order within ten days. (The order issued last week, apparently drafted by plaintiffs, includes paragraphs crossed out by the court before it was signed.)  The break-away group under the leadership Bishop Jack Iker issued a statement announcing it will appeal the ruling. Episcopal News Service and the Ft. Worth Star-Telegram report on the court's decision. (See prior related posting.) [Thanks to John Chilton for the lead.]

Shi'ite Congregation Sues Georgia Town Over Zoning Refusal

Yesterday's Atlanta Journal Constitution reports on a lawsuit filed by the Dar-E-Abbas Shi'ite Muslim congregation against the city of Lilburn, Georgia in a zoning dispute.  Plaintiffs want the city to rezone four acres adjacent to its current site so it can build a 20,000 square foot mosque and a 200-car parking lot. City council has refused citing traffic and drainage problems. This follows a refusal in 2009 of a more extensive plan that included a cemetery. Plaintiffs claim they are being treated more harshly than requests from other religious groups would be.

San Antonio Archdiocese Settles Sexual Assault Claim

The Archdiocese of San Antonio (TX) announced on Friday that it has settled a lawsuit involving charges of sexual assault by a priest, Father John M. Fiala.  The case was settled for $946,000, paid by the Archdiocese's insurers. According to a report on the settlement by the San Antonio Express-News, Fiala was indicted on six counts of sexually assaulting the teen at gun point, and subsequently arrested on a charge of attempting to hire a hit man to kill him.  The lawsuit also named Fiala's religious order, the Society of Our Lady of the Most Holy Trinity; the Diocese of Corpus Christi; and the Archdiocese of Omaha. The Archdiocese of San Antonio apparently received a false letter Fiala's religious order indicating no sex abuse claims when it hired Fiala. A trial involving these remaining defendants is scheduled for August.

Recent Prisoner Free Exercise Cases

In Mauwee v. Donat, (9th Cir., Dec. 22, 2010), the 9th Circuit held that monetary damages are not available under RLUIPA against the Nevada Department of Corrections or officials acting in their official capacity. It also held that an inmate's free exercise claims are moot.

In Hatzfeld v. Eagen, 2011 U.S. Dist. LEXIS 3914 (ND NY, Jan. 14, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 139758, Dec. 10, 2010) and dismissed an atheist inmate's claim that he was denied treatment for hepatitis when he refused to participate in a religious-based substance abuse treatment program. The court found that a secular treatment program was available to plaintiff.

In Porter v. Beard, 2011 U.S. Dist. LEXIS 3966 (WD PA, Jan. 14, 2011), a Pennsylvania federal district court refused to grant a Native American inmate a preliminary injunction. Plaintiff claimed he has not been provided replacement materials for a religious medicine bag that was thrown away by a corrections officer. But the court concluded he had been but had refused it because it was being delivered by a chaplain who was not a Native American.  The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 139770, Aug. 12, 2010.

In Davis v. Flores, 2011 U.S. Dist. LEXIS 4417 (ED CA, Jan. 14, 2011), a California federal district court dismissed free exercise and RLUIPA challenges by a Muslim inmate who objected to a prison rule that limited use of prayer oils to the chapel and did not permit possession of them in cells.

In Rincon v. Wells, 2011 U.S. Dist. LEXIS 5199 (SD GA, Jan. 20, 2011), a Muslim inmate filed a habeas petition challenging loss of good conduct time imposed because he participated in a group boycott of religious meals. A Georgia federal magistrate judge recommended dismissal of plaintiff's free exercise, equal protection and related claims because they cannot be raised by way of habeas corpus, for failure to exhaust administrative remedies and because of lack of support on the merits for his equal protection claim.

In Walton v. Hixson, 2011 U.S. Dist. LEXIS 4944 (ED CA, Jan. 19, 2011), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that his free exercise rights and rights under RLUIPA were violated when a corrections officer on one occasion interrupted his prayers and another time caused him to miss his morning prayers.

In Kalwasinski v. Maxymillian, 2011 U.S. Dist. LEXIS 5226  (ND NY, Jan. 20, 2011), a New York federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 140064, Dec. 22, 2010) relating to various claims of a Muslim inmate at a psychiatric center. The court dismissed plaintiff's objections to the bowls and utensils used and his objections to the serving of fish on Fridays. Plaintiff was allowed to proceed on claims regarding the lack of Al Jumu'ah services and a Halal menu; requirements that he attend classes on Fridays and denial of sacred foods on holidays.

In Criswell v. Salisbury, 2011 U.S. Dist. LEXIS 5031 (D RI, Jan. 18, 2011), a Rhode Island federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140102, Dec. 14, 2010) and dismissed a Muslim inmate's claim that his mail was denied or delayed because of its religious content.

In Birdwell v. Martel, 2011 U.S. Dist. LEXIS 4932 (ED CA, Jan. 18, 2011), a California federal magistrate judge recommended rejecting an Asatru/Odinist inmate's habeas corpus petition, concluding that a state court had not acted unreasonably in rejecting his claim that his parole was denied because of his refusal to participate in a religious based 12-step program.

Court Rejects Establishment Clause Challenge To Forest Service's Access Plan

Fortune v. Thompson, 2011 U.S. Dist. LEXIS 5343 (D MT, Jan. 20, 2011), involves a challenge to the U.S. Forest Service's adoption of a plan that limits motorized access on a portion of the Lewis and Clark National Forest. In upholding the plan, a Montana federal district court rejected an Establishment Clause claim by opponents of the plan who argued that the purpose of the plan was to favor Native American religion. The court said:

Even if the Forest Service's consideration and decision were enacted in part to mitigate interference with the Blackfeet's religious practices, this objective alone does not signify a constitutional violation.

The court also rejected the argument that the effect of the plan was to create "a cathedral for the Blackfeet religion."

Church Loses Challenge To County Zoning Ordinances

In McGuire v. Clackamas County Counsel, 2011 U.S. Dist. LEXIS 5521 (D OR, Jan. 19, 2011), an Oregon federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140026, Nov. 10, 2010), and dismissed a free exercise challenge to the zoning laws of Clackamas County, Oregon. The county insisted that the provision of services to the homeless, such as car and home repair assistance, and allowing the homeless to split wood and sell it, qualified the Assembly Church as a business so that the Church needed to obtain a permit and comply with a zoning ordinances. Plaintiffs argued unsuccessfully that they formed the Church as a "closed church" with the intent that they would receive no benefits from the government and, in turn, would not be contacted by, or be subject to the control of, the government.

Plan For School District To Absorb Religious Special Education School Is Controversial

In Rockland County, New York, controversy surrounds a proposal for the East Ramapo Central School District to take over the now private religious Rockland Institute for Special Education ("RISE") that educates 70 bi-lingual Yiddish or Hebrew speaking special education students. Earlier this week, both The Forward and Yeshiva World News reported on the situation in the district where controversy has brewed for months over other issues  in which proponents of public schools claim that the district school board, a majority of whose members are Orthodox Jews, has favored Jewish private schools in the area. The director of RISE has written her staff saying: "The district is trying to protect the program and the staff from the anti-Semites and those who will try to prove this merger is unconstitutional. The district people assure me, they have checked everything with lawyers and it is 100% legal. But there are those who will probably fight it."  Apparently no religious subjects will be taught during the regular school day, but privately-financed religious programs before and after school are planned.Opponents say the proposal is merely a bail-out of a failed religious institution and will segregate students.  A vote originally scheduled for earlier this week has now been postponed until the Feb. 2 school board meeting.