Religion Clause

Tuesday, March 22, 2011

Standing, Limited Preliminary Injunction Granted In Challenge To Santa Rosa County Consent Decree

The long-running litigation over religious practices in the Santa Rosa County, Florida schools continues. In 2009, the Santa Rosa County School Board entered into a consent decree, admitting widespread Establishment Clause violations. (See prior posting.) Then a group of teachers, staff, former students, community members and clergy filed suit challenging the consent decree, claiming that it violates and chills their First Amendment rights. (See prior posting.) In Allen v. School Board for Santa Rosa County, Florida, (ND FL, March 21, 2011), a Florida federal district court held that some of the plaintiffs have standing to challenge the consent decree, while certain others do not. Finding that the need to explore factual issues precludes ruling on the merits based merely on allegations in the pleadings, the court indicated that a hearing would be scheduled for mid-summer. In the meantime, the court issued a preliminary injunction barring the school from enforcing that part of the consent decree that restricts school district employees from participating in private religious or baccalaureate services. Liberty Counsel issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Australian Commission Releases Report on Freedom of Religion In 21st Century

Yesterday the Australian Human Rights Commission released a 92-page report titled Freedom of Religion and Belief in 21st Century Australia. Here are some excerpts from the Report's findings:

[T]here is strong support from all voices – whether religious, spiritual, secular or agnostic – for education about the religions, spiritualities and worldviews present in and affecting Australia.... The self-definition and religious character of Australia has been and remains a contentious issue, with various voices advocating Australia as a Christian nation, or as a secular nation, or as a multifaith plural nation.... Greater recognition of a wider range of spiritual communities in Australia, such as pagan and Indigenous beliefs, is needed....

Religious Australia is generally well-led by its leaders who understand the complexities of a complex civil society. There were, however, calls for comprehensive orientation training for clergy from overseas who are now serving in Australia, whose numbers are increasing....

Legislation was perhaps the biggest issue to emerge.... [D]istrust of and opposition to any legislative change was the strongest sentiment expressed[,] ... primarily to protect exemptions for religious groups from anti-discrimination legislation....

Significant distrust of Muslims and Islam was expressed by some. There were also reports of discrimination against Muslims and other religious minorities....

[C]oncern was expressed regarding the perceived growing influence of religious lobby groups in Australia, and their perceived influence in government policy-making and decisions. On the other hand, religious groups are concerned that religion is under threat from what was termed ‘aggressive secularism’, and that the role of religion and its contribution to the social and economic advancement of the community is undermined, and a lack of respect for faith and people of faith exhibited.

An important finding is that no religious group argued that it sought to make its religious law the law of Australia or of the individual states and territories. All saw their role as working within the constitutional framework of Australia.

Monday, March 21, 2011

Supreme Court Denies Review In Tax Case On Definition of "Church"

The Supreme Court today denied certiorari in Foundation of Human Understanding v. United States, (Docket No. 10-648, cert. denied 3/21/2011) (Order List). In the case, the U.S. Court of Appeals for the Federal Circuit held that the Foundation of Human Understanding, while retaining its 501(c)(3) non-profit status, did not qualify as a "church" for purposes of Sec. 170(b)(1)(A)(i) of the Internal Revenue Code. The Circuit Court held that in order to meet the definition of a church, a religious organization must show that it has a body of believers who assemble regularly for communal worship. (See prior posting.)

Amish Alternative Bankruptcy Plan Would Violate Establishment Clause

In re Beachy, (ND OH Bkrpt., March 18, 2011), involves an unusual intersection of the Establishment Clause with the federal Bankruptcy Code. Monroe L. Beachy, a member of the Amish community, filed a bankruptcy petition in federal bankruptcy court in Ohio. Beachy operated a securities firm that he ultimately turned into a Ponzi scheme, leaving investors with $33 million in claims against his $18 million in assets. Because both the debtor and the vast majority of investors are members of the Amish or Mennonite communities, a group from those communities proposed a Plain Community alternative plan to the bankruptcy proceedings. Plain Community members interpret the Bible as barring the use of civil courts to resolve financial disputes. Beachy asked the court to dismiss his bankruptcy petition and allow investors to proceed under the alternative plan. The court refused, saying:

The debtor in this case is clearly asking this court to delegate its function to a religious body. The motion to dismiss is conditioned on the court transferring estate funds to the Committee, which, according to the Committee's own filings, is a unit established by a church.... Any such delegation is forbidden by the Establishment Clause, regardless of the specific facts of a particular case.

The court rejected the argument that acceptance of the alternative plan was required by the Religious Freedom Restoration Act, saying that applying the Act in that way would violate the Establishment Clause. Moreover, in the court's view, the government has a compelling and narrowly tailored interest in an orderly and predictable bankruptcy system. The Dover- New Philadelphia (OH) Times Reporter discusses the decision. (See prior related posting.)

In Egypt, Big Win For Constitutional Amendments May Boost Muslim Brotherhood

The New York Times reported that 77.2% of Egyptian voters approved the country's proposed constitutional amendments in a referendum election held Sunday. 41% of all eligible voters turned out at the polls. Those in the more liberal wings of Egyptian politics say that the vote means early elections can be called. This favors the Muslim Brotherhood and former President Mubarak's party-- the only two parties that are well-organized at this point. Opponents that urged a "no" vote on the constitutional amendments in order to give new parties more time to organize say that religious appeals played a part in the referendum election campaign. Some say that religious organizations told their followers that a vote against the proposed amendments would threaten Article 2 of the Constitution that provides for Islam as the official state religion and Islamic law as the principal source of civil legislation. Reuters reports that many Egyptian Christians voted against the proposed amendments, fearing that rapid elections will encourage the rise to power of Islamist groups. Many Coptic Christians were disappointed that the proposed constitutional amendments do not eliminate Article 2 of the Constitution.

Ministerial Exception Does Not Bar Catholic High School Teacher's Age Discrimination Claim

In Hendricks v. Marist Catholic High School, (D OR, March 16, 2011), an Oregon federal district court refused to apply the ministerial exception to prevent a Catholic high school teacher from bringing an age discrimination claim after his teaching contract was terminated. The court said that because plaintiff was neither an actual nor potential member of the clergy, but instead a "Lay Teacher", the exception does not apply under 9th Circuit precedent. He was not the functional equivalent of a minister, even though some of his job duties involved religion. Nor did the court find a separate Establishment Clause basis for dismissing plaintiff's lawsuit. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Sunday, March 20, 2011

Canada's Supreme Court Will Decide Niqab In Court Case

Canada's Supreme Court this week granted leave to appeal in N.S. v. Her Majesty the Queen, (leave granted, March 17, 2011). In the decision below, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit a Muslim woman to testify with her face covered. (See prior posting.) Suite 101 has more background on the case.

Recent Prisoner Free Exercise Cases

In DeMoss v. Crain, (5th Cir., March 2, 2011), the 5th Circuit rejected a Muslim inmate's 1st Amendment and RLUIPA challenges to prison policies that required inmate-led religious services to be tape recorded when there is no staff member or outside volunteer present; barred inmates from carrying a pocket-sized Bible or Qur'an; required inmates to be clean-shaven; and did not permit inmates to stand for extended periods of time in prison dayrooms. A challenge to a policy that prohibited inmates confined to their cells for disciplinary infractions from attending religious services was dismissed as moot since the policy has been changed.

In Perez v. Williams, 2011 U.S. App. LEXIS 5109 (5th Cir., March 11, 2011), the 5th Circuit agreed with the district court that an inmate's free exercise claim was frivolous. Plaintiff complained that prison policy prohibits him from carrying his Bible or anything else other than his identification card on the recreation yard.

In Kates v. Micieli, 2011 U.S. Dist. LEXIS 24580 (WD LA, Feb. 23, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 24078, Feb. 7, 2011) and rejected a Muslim inmate's claim that his free exercise rights were violated when over a two day period he could not pray 5 times per day because he was placed in restraints for 18 hours.

In Johnson v. Varano, 2011 Pa. Commw. Unpub. LEXIS 194 (PA Commnw., March 9, 2011), a Pennsylvania state appellate court dismissed a Muslim inmate's free exercise claims against the Superintendent and kitchen staff growing out of a single incident in which the inmate was served pork. However the court remanded for further proceedings the question of whether the inmate had a cause of action in tort against the food services provider.

In Woodall v. Schwarzenegger, 2011 U.S. Dist. LEXIS 24395 (SD CA, March 9, 2011), a California federal district court permitted an inmate to proceed with his claim that prison officials destroyed his religious books.

In Washington-El v. Beard, 2010 U.S. Dist. LEXIS 141953 (WD PA, Dec. 16, 2010), a Pennsylvania federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was unable to attend religious services because of his placement on the Restricted Release List. A federal district judge adopted this portion of the magistrate's recommendations (2011 U.S. Dist. LEXIS 24562, March 11, 2011).

In Dove v. Broome County Corretional Facility, 2011 U.S. Dist. LEXIS 24528 (ND NY, March 10, 2011), a New York federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 25219, Feb. 17, 2011) and dismissed a Jewish inmate's complaint that he was denied kosher food for 30 days after having been observed eating a non-kosher meal when delivery of his kosher meal was delayed.

In Goodwin v. Hamilton, 2011 U.S. Dist. LEXIS 25790 (ED MI, March 14, 2011), a Michigan federal district court rejected a magistrate's recommendations (2010 U.S. Dist. LEXIS 142004, Jan. 13, 2011), and found that plaintiff had not presented sufficient evidence to support his Establishment Clause challenge to his attendance at a religiously-based substance abuse program after a parole violation. There was no evidence that plaintiff informed the staff of his objections to attending.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 25910 (ED AR, March 11, 2011), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 142011, Dec. 2, 2010) and permitted an inmate to proceed with his claims that his free exercise rights were violated when prison officials refused to provide him with nutritionally adequate meatless meals.

Church Complains About Its Cross Being Removed From State Park

Yesterday's Mobile (AL) Press-Register reports that the Orange Beach (AL) United Methodist Church is complaining that the recently appointed superintendent of Gulf State Park has removed a 10-foot tall cross made from driftwood that church members erected in 2008 with permission of the prior park superintendent. Apparently the cross has been disposed of by maintenance personnel. Since 2008, the church has held evening services on the beach near the cross every Sunday from May to August. There have also been 35 baptisms performed in front of the cross. Park superintendent Michael Guinn says he removed the cross because of concern about separation of church and state. He was unaware of the history of the cross or that it belonged to the United Methodist Church. The church's pastor, Alan McBride, says they would have taken the cross down if the park had contacted them. The park superintendent admits that he acted hastily, and plans to meet with Rev. McBride to "try to make it up to them."

Saturday, March 19, 2011

Idaho High Court Rejects Free Exercise Challenge To Marijuana Possession Conviction

In State of Idaho v. Fluewelling, (ID Sup. Ct., March 17, 2011), the Idaho Supreme Court rejected a criminal defendant's argument that his conviction for possession of marijuana violated his free exercise rights under the U.S. and Idaho constitutions.The court held that prosecution for conduct that violates a neutral statute of general applicability is not unconstitutional merely because the defendant engaged in the conduct for religious reasons. The court also rejected defendant's argument that his conviction should be reversed because a different state statute that permits peyote to be used in Native American religious ceremonies unconstitutionally grants a preference to one religious denomination.

Biblical Reference In Closing Argument Does Not Invalidate Guilty Verdict

In Powell v. State, (GA App., March 16, 2011), the Georgia Court of Appeals affirmed an appellant's conviction for aggravated assault, rejecting his claim that the trial judge allowed improper religious-based statements by the prosecution during closing argument. At issue was this statement to the jury by the prosecution:

let me call your attention to Matthew, Mark, Luke and John, four books of the Bible, first four books in the New Testament. They all have a little minor inconsistency between each of them, here and there, and that's because of perspective. But what do we call those four books of the Bible, ladies and gentlemen? We call them the gospel truth, ladies and gentlemen, the gospel truth.

The court concluded:

the biblical reference at issue here did not invite jurors to base their verdict on extraneous matters, or exhort jurors to reach a verdict on religious grounds, instead the prosecutor used the references to encourage jurors to overlook inconsistencies in the evidence.

Italy's High Court Upholds Ouster of Judge Who Refused To Preside In Court Room With Crucifix

In Italy earlier this week, the Cassation Court-- Italy's highest appellate court-- upheld last year's dismissal by the Supreme Council of Magistrates of Judge Luigi Tosti. According to Life in Italy last Monday, the Court concluded that Tosti was guilty of refusing to perform his judicial duties when, from May 2005 to January 2006 he withdrew from 15 hearings because a crucifix was displayed in the courtroom in which the hearing was scheduled. Tosti, who is Jewish, argued that the presence of the crosses was a threat to religious liberty. He says he will now take his case to the European Court of Human Rights. (See prior related posting.)

Friday, March 18, 2011

Property of Break-Away Church In Texas Belongs To Episcopal Diocese

In Masterson v. Diocese of Northwest Texas, (TX App, March 16, 2011), the Texas Court of Appeals held that the property of the Church of the Good Shepherd in San Angelo, Texas, belongs to the Episcopal Diocese of Northwest Texas and the continuing parish leaders, not to the break-away congregation that joined the more conservative Anglican Diocese of Uganda. The court held that this conclusion follows using either under the "neutral principles of law" approach or the rule of mandatory deference to determinations by hierarchical church bodies. Discussing the "neutral principles" approach, the court said:

Though the deed to the property is held in Good Shepherd's name, the parish agreed from its inception to be a part of the greater Episcopal Church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the Episcopal Church and may be subject to Good Shepherd's authority only so long as Good Shepherd remains a part of and subject to the Episcopal Church and its Constitution and Canons.

European Court's Grand Chamber Upholds Italy's Placement of Crucifixes In State Schools

Today in a 15-2 ruling, the Grand Chamber of the European Court of Human Rights held that the required display of crucifixes in state school classrooms in Italy does not violate the European Convention on Human Rights. In Case of Lautsi and Others v. Italy, (ECHR, March 18, 2011), the European Court reversed a Chamber Judgment issued by a 7-judge panel of the Court in November 2009 that had found the practice violates Article 2 of Protocol No. 1 taken together with Article 9 of the European Convention on Human Rights. (See prior posting.) In today's Grand Chamber judgment, the majority said in part:

[I]t is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.... [A] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality.... It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.... [T]he presence of crucifixes is not associated with compulsory teaching about Christianity....

Italy opens up the school environment in parallel to other religions.... [I]t was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were "often celebrated" in schools; and optional religious education could be organised in schools for "all recognised religious creeds" .... Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency.... [A]pplicant retained in full her right as a parent to enlighten and advise her children... and to guide them on a path in line with her own philosophical convictions....

Three concurring opinions were filed. In one of them, Judge Bonello wrote:

A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity.... A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

A dissenting opinion by Judge Malinverni, joined by Judge Kalaydjieva, argued in part:

[T]he presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts.... [N]egative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves. Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol.

The Court also issued a press release describing today's decision.

Malaysian Court Upholds Rule Limiting Syariah Law Practice To Muslims

In Malaysia yesterday, the High Court (Appellate and Special Powers) upheld the requirement that only Muslims can practice as Syariah lawyers. The Star reports on the decision which upholds Rule 10 of the Peguam Syarie Rules 1993. Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, challenged the requirement imposed by the Federal Territory of Kuala Lumpur's Islamic Religious Council that only Muslims can be admitted to practice before its Syariah Court. (See prior posting.) In yesterday's decision, Justice Rohana Yusuf concluded that: "The requirement (for a Syarie lawyer to be) of Muslim faith is necessary to ensure the effectiveness of legal representation." Martin's lawyers plan to appeal the decision.

Belk Settles Religious Accommodation Suit Filed By EEOC

A settlement has been reached between the EEOC and Belk, Inc. in a lawsuit brought by the EEOC charging Belk with failing to accommodate the religious beliefs of a Jehovah's Witness employee in its Raleigh, North Carolina store. (EEOC press release.) Employee Myra Jones-Abid was fired when she refused to wear a Santa hat and apron because her religious beliefs bar her from recognizing holidays. Under the settlement, Belk will pay Jones-Abid $55,000 in damages and will provide annual training on religious discrimination to managers at the store involved. It will also post a notice at the store on employees' rights and report to the EEOC on its responses to employee requests for religion accommodation.

Lawsuit Challenges Arizona Day of Prayer Declaration

The Freedom from Religion Foundations announced that it filed a lawsuit on Tuesday challenging Arizona Governor Jan Brewer's declaration of May 6, 2010 as Arizona Day of Prayer. The complaint (full text) in Freedom from Religion Foundation Inc. v. Brewer, (D AX, filed 3/15/2011) seeks a declaratory judgment that Brewer's proclamation violates the Establishment Clause as well as Art. II, Sec. 12 and Art. XX, Sec. 1 of the Arizona constitution. It also asks for an injunction barring the governor from proclaiming days of prayer in 2011 or thereafter.

Knesset Committee Hears From Chief Rabbi On Israel's Recognition of Orthodox Conversions

Haaretz reports on a special meeting of the Knesset (Israeli Parliament) Immigration Committee on Tuesday in the office of Israel's Chief Sephardi Rabbi Slomo Amar in which Amar defended a controversial policy of the Chief Rabbinate and the Interior Ministry adopted two years ago regarding recognition of conversions to Judaism performed by Orthodox rabbis abroad. The policy limits recognition of conversions to those performed by members of specific rabbinical organizations, such as the Rabbinical Council of America. The Interior Ministry's recognition is important in determining whether an immigrant is entitled to immigrate under the Law of Return. Amar told the Knesset Committee that he had received reports of some rabbis abroad performing conversions in exchange for large sums of money. In an interesting twist, the Israeli Supreme Court has previously ruled that the Interior Ministry must recognize Reform and Conservative conversions from abroad for purposes of the Law of Return. However, because the Court has not passed on the issue of Orthodox conversions abroad, the Interior Ministry retains control over which it will recognize. Government representatives are working on drafting a new policy on recognition of Orthodox conversions that will withstand legal challenge.

Thursday, March 17, 2011

Court Says Any Accommodation of Jehovah's Witness Would Impose Undue Hardship On Employer [Corrected]

In Berry v. MeadWestvaco Packaging Systems, LLC, (MD AL, March 14, 2011), an Alabama federal district court dismissed a Title VII religious discrimination claim brought by a Jehovah's Witness employee who was assigned to work at times that conflicted with his scripturally mandated Tuesday and Wednesday evening religious meetings. The company allowed Thomas Berry, a gluer operator, to swap shifts with other operators and to use his vacation time. However, he had insufficient vacation time and no other operator was willing to switch with him. The court concluded that while there is an issue of fact as to whether the company offered Berry reasonable accommodation, any available accommodation would have created "undue hardship" to the employer and therefore could not be imposed on the company. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.] (Note-- an earlier version of this posting incorrectly indicated that the case involved a Seventh Day Adventist. I apologize for the error.)