9th Circuit Says Substantial Burden Under RLUIPA Can Be Imposed By Neutral Zoning Law

In International Church of  the Foursquare Gospel v. City of San Leandro, (9th Cir., Feb. 15, 2011), the U.S. 9th Circuit Court of Appeals reversed the district court and held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. Evidence from a realtor and a former city manager that no other suitable sites exist in the city to house the church presented a triable issue of fact as to the extent of the burden posed by the city's zoning denial. The court added:

In spite of the Church’s allegations about its core beliefs, the district court accepted the City's contention that the Church could continue to conduct three separate Sunday services or could acquire several smaller properties throughout the City and relocate some of its operations off site. The district court's flat rejection of the Church's characterization of its core beliefs runs counter to the Supreme Court's admonition that while a court can arbiter the sincerity of an individual’s religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs.

Finally the court held that the city's need to preserve property for industrial use is not automatically as a matter of law a compelling governmental interest. (See prior related posting.) Yesterday the San Francisco Chronicle reported on the decision.

2nd Circuit Upholds Dismissal of Street Preacher's Challenge To Noise Ordinance

In Costello v. City of Burlington, (2d Cir., Feb. 14, 2011), the U.S. 2nd Circuit Court of Appeals upheld, as applied, Burlington, Vermont's noise ordinance that was invoked by a police officer to issue a written warning to plaintiff, a street preacher, who was preaching in a loud voice outside places of business on a pedestrian mall.  In an opinion by Chief Judge Jacobs, most of which was concurred in by Judge Calabresi, the court concluded that the ordinance was a content neutral time, place and manner regulation in a public forum. Judge Pooler concurred only in the result, relying instead on the doctrine of qualified immunity to affirm dismissal of plaintiff's complaint. She believed that the case was closer on the merits since prior case law relied upon by the majority all dealt with amplified sound, not the loud unamplified speech that was present in this case. She pointed out that "street preaching ... has a long history in this country."

Many of Diocese's Claims Challenging Refusal To Allow Cemetery Development Are Dismissed

In Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of Old Westbury, 2011 U.S. Dist. LEXIS 14268 (ED NY, Feb. 14, 2011), a New York federal district court dismissed many, but not all, of the claims growing out of a town's refusal to allow the Catholic Diocese to develop of a parcel of land as a cemetery. Constitutional claims and claims under RLUIPA against a private consulting firm involved with the village's decision were dismissed because the firm was not acting under color of law. A number of claims against the Village of Old Westbury were dismissed on statute of limitations grounds, but a challenge to the constitutionality of a 2001 zoning law survived under the continuing violation theory. Claims based on the State Environmental Quality Act process were dismissed as unripe. Official capacity, but not individual capacity, claims against the superintendent of buildings and public works alleging illegal searches were dismissed.

Criminal and Civil Charges Generated By Philadelphia Grand Jury Sex Abuse Report

In Philadelphia (PA) last week, a grand jury released a 128-page report (full text) on its investigation of sexual abuse by clergy and employees of the Catholic archdiocese of Philadelphia. According to an accompanying press release: "The report recommended that the Archdiocese of Philadelphia overhaul its procedures for assisting victims and for removing from ministry priests accused of molesting minors. The Grand Jury encouraged victims to report their abuse first to law enforcement." In a Presentment (full text) the grand jury recommended indictments be filed against three priests and a teacher, as well as against an archdiocese official. According to the Milwaukee Journal Sentinel a civil suit against the Archdiocese based on this grand jury report and an earlier one released in 2005 (full text) was filed on Monday.

Church Sues NY Port Authority Over Ground Zero Reconstruction Plans

According to CNN, a federal lawsuit was filed Monday in Manhattan against the Port Authority of New York and New Jersey by the Greek Orthodox Archdiocese of America and St. Nicholas Church.  The church, which was located at Ground Zero, was destroyed in the collapse of the Twin Towers on 9-11.  Apparently the parties agreed in 2008 that the Church would be rebuilt using public funds on adjacent property while construction moved ahead on a vehicle security center as part of the World Trade Center redevelopment.  The Port Authority says the church subsequently rejected an offer of $60 million for construction on the new site.  The Port Authority says that the church can still rebuild on its original site beginning in 2013 when the vehicle security center is completed. The church's lawsuit claims that the Port Authority is guilty of arrogance, bad faith and fraudulent conduct in the negotiations.

Church Sues Over Denial of Zoning Permit

A lawsuit was filed last week in a Georgia federal district court by a predominately African-American Christian church against Coweta County (GA) charging that the county's denial of a conditional use permit for the church to build a place of worship on property it purchased violated RLUIPA as well as various provisions of the 1st and 14th Amendments. The complaint (full text) in All Souls Church of God in Christ, Inc. v. Coweta County, Georgia, (ND GA, filed 2/11/2011) claims that applications by other religious and non-religious organizations that are predominately White have received more favorable treatment. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Egypt's Constitution Revision Panel Appointed; Impact On Religious Pluralism Is Uncertain

Egypt's military council yesterday selected an 8-member committee to quickly recommend revisions to the country's constitution. Chairman of the revision committee is Tareq el-Bishri, a former judge and prominent historian.  Other members are: Sobeh Saleh, a lawyer, former member of Parliament and a member of the Muslim Brotherhood; Maher Samy Youssef, a Coptic Christian judge; two other judges-- Hassan El Badrawi and Hatem Bagatou; and three law professors-- Mohamed Hassaneim Abdel Al, Mahmoud Atef El Bana and Mohamed Bahey Abou Younis.  News reports place very different interpretations on the panel's likely approach to issues of religious pluralism in Egypt. The New York Times has a rather upbeat report, calling the selections "the first significant evidence of the military's commitment to moving the country toward democratic rule." It continued:

The committee will be led by Tareq el-Bishri, a prominent former judge known for maintaining his independence of the Mubarak government. He was once thought to be left leaning but is considered be sympathetic to moderate Islamism, legal analysts said, making him a bridge figure between the main Egyptian political factions.

In contrast, London's Telegraph ran a report saying:

Tarek al-Bishry, the chairman of the constitutional panel, is a respected judge who criticised former president Hosni Mubarak and is regarded as moderate in his views. But he has been associated with Al-Wasat, an offshoot of the Brotherhood. He has selected a committee made up mainly of judges and politicians, including a judge who is a Coptic Christian, but also a former Muslim Brotherhood MP. There are no women.

Wael Abbas, the best-known human rights blogger in Egypt, who was sentenced to prison by the Mubarak regime last year, said it was a "worrying" choice. "There is no such thing as a moderate Islamist," he said. "We want a secular state that respects all religions and which belongs to all religions." ...

[T]he make-up of the new committee, and the fact it has been given just ten days to come up with a new constitution, has dashed hopes that it will remove Article 2, which makes Islam the state religion and says Shariah is the main source of law.

Christian Coalition Blocking Sunday Liquor Sales Bill In Georgia

Today's Atlanta Journal Constitution reports that religious conservatives are increasing pressure on Republicans in the state Senate to kill a bill that would allow local referenda to authorize the sale of alcoholic beverages at retail stores on Sundays. In the past, defeat of similar proposals were blamed on former Republican governor Sonny Perdue, a Christian conservative who said he would veto any Sunday liquor sale bill. New Republican governor Nathan Deal said he would sign the bill.  A Senate committee has approved the bill, but then members of the Georgia Christian Coalition began to lobby and send e-mails and letters to Republican senators. Now it is not clear that the bill has majority support in the Republican caucus. If it does not, it will not be brought to the floor.

Egypt's Muslim Brotherhood Planning Non-Religious Islam-Based Party, But No Presidential Candidate

London's Financial Times today reports that in Egypt, the Muslim Brotherhood has announced that if legal restrictions against it are lifted it will set up a political party, but will not run a candidate for president. A leader of the Brotherhood says that the proposed party will have Islam as a frame of reference, but will not be a religious party. Deputy Leader Rashad Bayoumi says:

We do not have the concept of a religious party, or of a government of religious scholars [like in Iran].  All this is very far from Islam. We say that when we differ over anything we should refer to the Koran. But if matters stray away from the principles of mercy, freedom and social justice, then this would be against religion.

The Egyptian constitution was amended in 2007 to ban political parties based on religion. (See prior posting.) The Supreme Military Council which is temporarily governing in Egypt promises to propose amendments to the constitution before elections are held. It has appointed a former member of Parliament with ties to the Muslim Brotherhood as one of the members of the committee that is drafting the proposed constitutional changes.

UPDATE: Today's Wall Street Journal carries an analysis titled 'Brothers' In Egypt Present Two Faces, reporting that while the younger, more tolerant wing of the Brotherhood were those involved in the recent protests, the conservative "old guard" that is anti-Western and more radically Islamic continues to make up the bulk of the Brotherhood leadership.  Here is an excerpt:

A different face of the Brotherhood is that of Mohamed Badi, 66-year-old veterinarian from the Brotherhood's conservative wing who has been the group's Supreme Guide since last January. He recently pledged the Brotherhood would "continue to raise the banner of jihad" against the Jews, which he called the group's "first and foremost enemies." He has railed against American imperialism, and calls for the establishment of an Islamic state.

Party Complains That Ukraine Government Is Favoring Moscow Patriarchate Over Kiev

Interfax today reports that in Ukraine, the opposition Our Ukraine Party has written President Viktor Yanukovich and Prime Minister Nikolay Azarov complaining about pressure by law enforcement personnel on Orthodox clergy to transfer their allegiance from the Kiev Patriarchate to the Moscow Patriarchate.  The opposition party complained that authorities are also favoring the Moscow Patriarchate through budget earmarks.

Michigan Bill Would Increase Penalties For Disturbing Religious Services

The Livingston County (MI) Daily Press and Argus reports on passage by the Michigan state Senate last week of Senate Bill 19 which would increase the penalties for interrupting or disturbing services at any building that is clearly identified as one used for religious purposes. It also bans obstructing anyone entering or leaving a building used for religious purposes.  The bill was sent on to the state House of Representatives for consideration. The Michigan ACLU is concerned that the bill does not define a religious disruption and fears it could be applied, for example, to someone wearing an offensive button in church. The bill calls for imprisonment of up to 93 days, a $1000 fine and 100 hours of community service work for a first offense.

Ohio Supreme Court: Church Can Get Separate Tax Exemption For Sports Fields

Ohio law provides for property tax exemptions both for houses of worship (RC 5709.07(A)(2)) and for property used for charitable purposes (RC 5709.12(B)). An Akron, Ohio church acquired 79.8 acres on which it built a church building and also softball and soccer fields and a jogging path which it viewed as part of its sports ministry.  The recreational portions of the property were used by various community groups and members of the general public who were not necessarily church members. In The Chapel v. Testa, (OH Sup. Ct., Feb. 10, 2011), the Ohio Supreme Court held that the property could be split so that the church building obtained the house of worship exemption and the recreational portions obtained the charitable exemption.  Neither church ownership nor religious motivation prevent relying on the charitable use exemption, even though that portion of the property would not have qualified for the house of worship exemption. BNA Daily Report for Executives discusses the decision.

Valentine's Day Stirs Religious Objections In Parts of the World

Today is Valentine's Day. But Voice of America reports that in parts of the world religious objections to celebrating the day continue. In southern India, members of a Hindu political party burned Valentine's Day cards,  decrying cultural exploitation and sexual greetings on cards. Saudi Arabia and Malaysia have banned celebration of the day, calling it a vice.  However Arab News reports that while in Saudi Arabia the Commission for the Promotion of Virtue and Prevention of Vice has told stores to remove items that are red, Saudi couples are finding other ways to celebrate-- having dinner in popular restaurants and exchanging gifts of jewelry, perfume and chocolates. Dubai permits celebration of the day, but this year has banned the sale of alcohol because of the proximity to tomorrow's celebration of the Prophet Muhammad's birthday. Meanwhile in Iraq, according to AFP, young people are holding a Valentine's Day rally to urge their leaders to love the country instead of robbing it of its resources.

Boehner Believes Obama Is A Christian But "Not My Job To Tell the American People What To Think"

Republican House Speaker John Boehner was a guest on NBC's Meet the Press yesterday. (Full transcript.) His interview included an exchange regarding the perceptions of some Americans regarding President Barack Obama's religious beliefs. Host David Gregory played a tape of an Iowa focus group of voters during which one woman said she believes that Obama is a Muslim.  This exchange between Gregory and Boehner followed:

MR. GREGORY: As the speaker of the House, as a leader, do you not think it's your responsibility to stand up to that kind of ignorance?

SPEAKER BOEHNER: David, it's not my job to tell the American people what to think. Our job in Washington is to listen to the American people. Having said that, the state of Hawaii has said that he was born there. That's good enough for me. The president says he's a Christian. I accept him at his word.

MR. GREGORY: But isn't that a little bit fast and loose? I mean, you are the leader in Congress and you're not standing up to obvious facts and saying, "These are facts. If you don't believe that, it's nonsense."

SPEAKER BOEHNER: I just outlined the facts as I understand them. I believe that the president is a citizen. I believe the president is a Christian. I'll take him at his word. But, but...

MR. GREGORY: But that kind of ignorance about whether he's a Muslim doesn't concern you?

SPEAKER BOEHNER: Listen, the American people have the right to think what they want to think. I can't--it's not my job to tell them.

MR. GREGORY: Why isn't it your job to stand up and say, "No, the facts are these"? ...

SPEAKER BOEHNER: I, I, I just did.... 

MR. GREGORY: You shouldn't stand up to misinformation or stereotypes?

SPEAKER BOEHNER: ...but, but, but, but, but I've made clear what I believe the facts are.

MR. GREGORY: But is, is it, is it because it weakens the president politically, it seeks to delegitimize him that you sort of want to let it stay out there?

SPEAKER BOEHNER: No. What I'm trying to do is to do my job. Our job is to focus on spending. We're spending too much money here in Washington....

Proposed New Tax Law In India Will Impact Religious Trusts

The Times of India on Saturday reported that a group of religious trusts held a news conference to oppose certain provisions in the proposed Direct Tax Code pending in India's Parliament.  Under the proposal, trusts or institutions created for the benefit of a particular caste or community would no longer qualify as non-profit organizations.  The bill would subject them to a 30% income tax and to a wealth tax of 1% on their assets over a specified minimum.  This will affect schools, orphanages, homes for the destitute and trusts that manage temples and other religious organizations.

Recent Articles of Interest

From SSRN:

• Robert Steinbuch and Brett Tolman, That Ain't Kosher, (University of Arkansas at Little Rock Law Review, Vol. 33, No. 1, 2010).
• Evelyn Tenenbaum and Sarah E. Ricks, Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA, (Current Issues in Constitutional Litigations: A Context and Practice Casebook, p. 615, Michael Hunter Schwartz, ed., Carolina Academic Press, 2011).
• Zachary R. Calo, Review of First Be Reconciled: Challenging Christians in the Courts by Richard P. Church, (The Cresset: A Review of Literature, the Arts, and Public Affairs, Vol. 74, p. 58, 2010).
• Issam A.W. Mohamed, The Impacts of Social Justice and Wealth Distribution in Sudan (In Arabic),(February 5, 2011).
• Aziz Z. Huq, The Signaling Function of Religious Speech in Domestic Counterterrorism, (Texas Law Review, Forthcoming).
• Adam J. Kolber, Alternative Burdens on Freedom of Conscience, (San Diego Law Review, Vol. 47, 2010).
• Trudy Rushforth, Religious Exercise in Prison - A Guide for Prison Officials, (February 12, 2011).
• Youngjae Lee, Deontology, Political Morality, and the State, (Ohio State Journal of Criminal Law, Vol. 8, 2011).
• Nancy M. Modesitt, Reinventing the EEOC, (Southern Methodist University Law Review, Vol. 63, No. 4, p. 1237, 2010).

From SmartCILP:

• Robert H. Knight, How the Concept of "Sexual Orientation" Threatens Religious Liberty, 4 Liberty University Law Review 503-536 (2010).
• Ran Kuttner, From Adversity to Relationality: A Buddhist-Oriented Relational View of Integrative Negotiation and Mediation, [Abstract], 25 Ohio State Journal on Dispute Resolution 931-974 (2010).
• Rena M. Lindevaldsen, The Fallacy of Neutrality From Beginning to End: The Battle Between Religious Liberties and Rights Based on Homosexual Conduct, 4 Liberty University Law Review 425-463 (2010).

Recent Prisoner Free Exercise Cases

In Orso v. Shumate, 2011 U.S. Dist. LEXIS 10706 (D LA, Feb. 3, 2011), a Louisiana federal district court held that a Native American inmate adequately alleged a substantial burden on his religious beliefs in being prevented from attending a Pow Wow and performing a mourning ceremony. However the claim for injunctive relief was dismissed as moot and damage claims were dismissed on other grounds. Equal protection claims were also rejected. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 140978 (Oct. 13, 2010).

In Harris v. Skolnik, 2011 U.S. Dist. LEXIS 10777 (D NV, Jan. 25, 2011), a Nevada federal district court dismissed several claims challenging a prison's policy of requiring verification from the Aleph Institute that an inmate is Jewish before the inmate will be provided with a kosher diet. However the court allowed plaintiff to proceed with his claim that the policy amounts to religious discriminations under the Equal Protection clause because it only applies to Jewish inmates.

In Kendrick v. Faust, 2011 U.S. Dist. LEXIS 10091 (ED AR, Feb. 1, 2011), an Arkansas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 10690, Jan. 18, 2011) and dismissed without prejudice for lack of exhaustion of administrative remedies an inmate's complaint that her Catholic Bible was confiscated. The court dismissed on the merits plaintiff's complaint that her rosary beads and religious self-help books were confiscated while she was in punitive segregation.

In Hall v. Taylor, 2011 U.S. Dist. LEXIS 11006 (SD IL, Feb. 5, 2011), an Illinois federal district court rejected an inmate's claim that his free exercise rights were violated when, during a shake down search of his cell, a religious book was confiscated.

In Muhammad v. Johnson, 2011 U.S. Dist. LEXIS 11651 (WD VA, Feb. 4, 2011), a Virginia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 11240, Jan. 13, 2011) and refused to issue a preliminary injunction. Plaintiff had complained that prison authorities refused to allow him to attend Nation of Islam services and receive The Final Call newspaper.

In Cooper v. Horning, 2011 U.S. Dist. LEXIS 11921 (D MD, Feb. 8, 2011), a Maryland federal district court rejected an inmate's complaint that there is no chaplain at his correctional institution for Islamic and Moorish Science Temple of America inmates.

In Hooper v. Juneau County Jail, 2011 U.S. Dist. LEXIS 12299 (WD WI, Feb. 7, 2011), a Wisconsin federal district court dismissed for lack of specificity an inmates broad claim that he was deprived of his religious preference.

In Tucker v. Royce, 2011 U.S. Dist. LEXIS 12680 (D MS, Feb. 8, 2011), a Mississippi federal district court upheld a prison's policy of barring sex offenders in protective custody from attending Sunday church services in the jail library because the library is not equipped to separate inmates into groups.

In Davenport v. Artus, 2011 U.S. Dist. LEXIS 12497 (ND NY, Feb. 9, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 12505, Jan. 10, 2011) and dismissed an inmate's complaint that he was not permitted to attend a religious festival and receive the religious feast that night for his evening meal (the identity of the specific festival is unclear).

In Canada v. Ray, 2011 U.S. Dist. LEXIS 12927 (WD VA, Feb. 9, 2011), a Virginia federal district court rejected a Muslim inmate's claim that requiring him to undergo tuberculosis testing violates his free exercise rights. Plaintiff claimed the injection contains alcohol, but defendants refuted that claim indicating that instead it contains phenol.

In McFaul v. Valenzuela, 2011 U.S. Dist. LEXIS 13108 (ND TX, Feb.10, 2011), a Texas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 141209, Sept. 14, 2010) and dismissed a claim by a Neo-Pagan inmate that his constitutional and statutory free exercise rights were violated when authorities refused to permit him to obtain a bone skull necklace and two pendants.

Gymnastics Competition Refuses Full Religious Accommodation for 7 Year Old

North Jersey's The Record today reports on the issues faced by a 7-year old Jewish gymnast when New Jersey gymnastic competition officials refused to accommodate her Sabbath observance. Amalya Knapp, a second grader at Yeshiva of North Jersey was, for religious reasons, unable to compete in the Saturday afternoon events.  She will compete in four events today, but her scores will not count toward any individual titles or rankings for her. If her scores are high enough they will be added to her team's overall score and could help the team win. Leslie King, a spokeswoman for USA Gymnastics nationally, said that events are scheduled at the most convenient times for athletes. She explained: "We certainly understand how these conflicts can affect an athlete's participation and do our best to provide alternate opportunities, when possible." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

6th Circuit En Banc Finds Teachers Have Municipal Taxpayer Standing In Establishment Clause Suit

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., Feb. 11, 2011), the U.S. 6th Circuit Court of Appeals, en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. Most of the court's opinion focused on the more liberal standing requirements that courts have found for municipal taxpayers, as opposed to state and federal taxpayers. The majority rejected the argument that because the school district saved money by the outsourcing that taxpayers could not complain. The court also found that the individual teachers who lost their jobs because of the outsourcing did not have standing because in that capacity they were raising Establishment Clause claims of their students which the students could raise on their own.  The court unanimously agreed on this aspect of the standing question, as they did that plaintiffs' substantive and procedural due process challenges should be dismissed. Fourteen of the judges agreed that defendants enjoyed legislative immunity as to the individual capacity claims against them. The case produced two concurring opinions and two partial dissents in addition to the main opinion.

Judge Sutton's concurring opinion questioned the validity of having more liberal standing requirements for municipal taxpayers, but concluded that any modification in the doctrine needed to come from the Supreme Court.  He argued:

If a state taxpayer ... is not "immediately in danger of sustaining some direct injury as a result" of enforcement of an allegedly unconstitutional law and "merely . . . suffers in some indefinite way in common with people generally,"...why isn't the same true for a meaningful number of city taxpayers? The gross population of the largest 37 cities (41.7 million) after all is roughly the same as the gross population of the 23 smallest States.

The 3-judge panel's decision in the case, handed down in November 2008, had held 2-1 that plaintiffs had individual standing as well as municipal taxpayer standing. (See prior posting.)

9th Circuit Hears Oral Arguments In Establishment Clause Challenge To Teacher's Comments

The U.S. 9th Circuit Court of appeals yesterday heard oral arguments (recording of full arguments) in in C.F. v. Capistrano Unified High School. In the case, the district court found that an in-class comment by high school history teacher James Corbett which characterized creationism as "superstitious nonsense" violated the Establishment Clause. However the trial court refused to find similarly as to a number of other comments. (See prior posting.)  As to the one violation, the trial court denied plaintiff any relief finding the teacher was entitled to qualified immunity as to damages and finding that injunctive and declaratory relief were inappropriate. (See prior posting.) Both sides appealed. (See prior posting.) Yesterday's Orange County Register reports on the variety of questions asked by the 3-judge panel during oral arguments.