Religion Clause

Tuesday, March 29, 2011

Suit Challenges Nevada Law Limiting Marriage Officiants To Clergy Or Government Officials

Yesterday's Las Vegas Sun reports that the ACLU of Nevada has filed a lawsuit in federal court against the state of Nevada and Clark County (NV) challenging the constitutionality of the state law that limits the issuance of state certificates to perform marriages to clergy, judges and commissioners and deputy commissioners of civil marriage. The lawsuit argues that requiring private individuals to have a religious affiliation in order to perform marriage ceremonies, as is now required, violates the Establishment Clause, the Equal Protection Clause and the No-Religious Test clause of the U.S. constitution, as well as the Nevada constitution. One of the plaintiffs, Raul Martinez-- an atheist and member of the American Humanist Association-- has twice had his application for a "Permanent Certificate of Authority to Solemnize Marriages" turned down. Two other of the plaintiffs are a couple engaged to be married seeking to have a secular ceremony in a romantic location of their choosing.

UPDATE: Here is the full text of the complaint in Martinez v. Clark County, Nevada, (D NV, filed 3/27/2011), and a report on the case from Courthouse News Service.

Groups Ask EEOC To Ban Placement of Religious Employees Outside of Public View

A group of 25 religious and civil rights groups last week sent a letter (full text) to the U.S. Equal Employment Opportunity Commission complaining about federal court decisions that have permitted companies to segregate "visibly religious employees," such as Sikhs wearing turbans or Muslim women wearing hijabs, in positions where they are not seen by company customers. The letter asks the EEOC to:

Issue written guidance clarifying that religious accommodations requiring segregation from customers in the name of corporate image constitute adverse employment actions and can never be deemed "reasonable" under Title VII.

Monday, March 28, 2011

What Is At Issue In the Hosanna-Tabor Case?

Today the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (See prior posting.) The petition for certiorari describes the Question Presented as follows:

The federal courts of appeals have long recognized the "ministerial exception," a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

There are several related and overlapping rules of law in cases in which private parties are suing religious organizations. One is the constitutionally-based "ecclesiastical abstention" doctrine which holds that civil courts should not entangle themselves in disputes that involve questions of theological interpretation, church discipline, religious law, religious custom or ecclesiastical rule.

A related but separate question arises when a regulatory statute includes a specific exemption for religious organizations. Here the scope of the exemption depends upon the specific statutory language. Thus a provision in the Americans With Disabilities Act allows religious organizations and schools to give an employment preference to individuals of a particular religion, and allows religious organizations to require employees to conform to the religious tenets of the organization.

The third legal rule is the one involved in Hosanna- Tabor-- the "ministerial exception." This is a judicially created exception to the application of employment discrimination laws. The exception originated out of constitutional concerns over judges imposing themselves in decisions by congregations about who will serve them as clergy. If a congregation fires a pastor for giving uninspiring sermons, the government should not decide whether that evaluation is correct. If a synagogue refuses to employ a rabbi because he is not sufficiently traditional in his beliefs, no court should be in the business of deciding whether that is an accurate assessment. However sometimes the reasons for firing, or refusing to hire, a member of the clergy may be ones which, in other employment contexts, would be impermissible. The action may have been based on considerations such as gender, race, age or disability. Often the parties have different views of the reasons underlying an employment decision and the court is being asked to determine the true motivation. Where the ministerial exception applies, a court will not consider claims that improper motivations were involved. So the ministerial exception deprives clergy of employment protections available to all other employees and makes serving as a member of the clergy a risky occupation.

Hosanna- Tabor raises the question of how many other employees of religious organizations should be subject to the same risks of having no recourse when they have been dismissed for frivolous or perverse reasons having no relation to religious doctrine. The 6th Circuit held that whether an employee is a "minister" for purposes of this exemption depends on whether "the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." It found that Cheryl Perich's duties were not primarily religious so she could pursue a claim that she was dismissed in violation of the Americans With Disabilities Act. Some other circuits have concluded that the ministerial exception applies so long as an employee of a religious organization has some religious duties or responsibilities, even if those are not the person's primary duties. That test would have precluded Perich from suing.

Supreme Court Grants Review In "Ministerial Exception" Case

The U.S. Supreme Court today granted certiorari in a case involving the scope of the "ministerial exception" to federal anti-discrimination laws. The case is Hosanna- Tabor Church v. EEOC, (Docket No. 10-553, cert. granted 3/28/2011). (Order List.) In the case, the 6th Circuit held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act and are not "ministerial employees" who are excepted from coverage. (See prior posting.) Scotus blog has links to various documents in the case.

Court Rules On Discovery Motions In Clergy Sex Abuse Case

In Dotson v. Hartford Roman Catholic Diocesan Corp., 2011 Conn. Super. LEXIS 386 (CT Super., Feb. 17, 2011), a Connecticut trial court ruled on a number of discovery motions filed by a priest, two Catholic churches and the Hartford Diocese in a lawsuit by a victim of alleged clergy sexual abuse. Among its rulings were the following. The court agreed to "issue a protective order preventing the plaintiff from disseminating any videotaped deposition testimony, transcripts of such testimony and any other information obtained through discovery and not filed with the court in order to protect the parties' right to a fair trial." The court also ruled that it would inspect in camera the priest's personnel file to determine which documents should be released in discovery. The court rejected the diocese's argument that the 1st Amendment protected it from producing a secret archival file. The court said: "it is difficult for the court to imagine that the compelled disclosure of certain documents that are maintained pursuant to canon law would result in an entanglement of the court in church matters sufficient to result in a violation of the diocese's first amendment rights."

Indian Court Says Priest's Celibacy Vow Does Not Invalidate Marriage or Bequest

A court in New Delhi, India has upheld the will of a Christian priest who secretly converted to Islam, married and bequeathed property to his son. Today's Times of India reports that the priest's family challenged the validity of the will and the priest's marriage on the ground that the priest took a vow of celibacy. The court wrote: "To marry is a fundamental right of a person, being an integral part of right to life and personal liberty. Tenets of a religion may interdict its followers from becoming a priest (father ) but cannot invalidate a marriage, which is legal otherwise."

Sunday, March 27, 2011

Muslim Brotherhood Could Become Important Politically In Libya

CNN on Friday reported that the Muslim Brotherhood in Libya could become an important force in a post-Gadhafi Libya. Founded in the 1950's, the Libyan Brotherhood is comprised mainly of religious educated middle class Libyans and of individuals on university campuses in Tripoli and Behghazi. Dr. Abdulmonem Hresha, a prominent member of the Libyan Brotherhood who now lives in London, says if the organization forms a political party, it will embrace a multi-party democracy, but will press for legislation based on Qur'anic principles such as the continued ban on the sale of alcohol. CNN speculates that the Brotherhood could siphon off support that might otherwise go to al Qaeda or other Islamist groups.

Recent Prisoner Free Exercise Cases

In Sayed v. Profitt, (10th Cir., March 18, 2011), the 10th Circuit rejected the contentions of a Muslim prisoner that he was entitled to a complete shower before the Jum'ah service. Contrary to the inmate's contention, the court found he could perform partial ablution at the sink in his cell and thereby comply with Muslim beliefs.

In LaPine v. Caruso, 2011 U.S. Dist. LEXIS 27987 (WD MI, March 18, 2011), a Michigan federal district court allowed an inmate to proceed against two defendants on his equal protection claim that alleges defendants limited Native American services to 3-5 minutes and did not permit the Prisoner Benefit Fund to be spent on herbs for Native American religious ceremonies.

In Bowers v. Burnett, 2011 U.S. Dist. LEXIS 27929 (WD MI, March 18, 2011), a Michigan federal district court adopted a magistrate's conclusion (2009 U.S. Dist. LEXIS 130756, July 27, 2009) that rejected a Buddhist inmate's claims growing out of the denial to him of a vegan diet. The court held: "Plaintiff's claims for declaratory and injunctive relief are moot. Plaintiff's claims against Defendants in their official capacity are barred by the Eleventh Amendment. The RLUIPA does not authorize Plaintiff's claims against Defendants in their individual capacities. Alternatively, Defendants are entitled to qualified immunity on all of Plaintiff's claims against them in their individual capacities."

In Smittle v. Nevada Department of Corrections, 2011 U.S. Dist. LEXIS 28520 (D NV, March 8, 2011), a Nevada federal district court rejected without prejudice defendants' motion to dismiss for lack of exhaustion a Native American inmate's complaint regarding relocation of the prison's sweat lodge.

In Spencer v. Whorton, 2011 U.S. Dist. LEXIS 28922 (D NV, March 7, 2011), a Nevada federal district court largely accepted the recommendation of a magistrate (2010 U.S. Dist. LEXIS 142160, Nov. 18, 2010) and dismissed, partly on mootness grounds, an inmate's complaints regarding interference with Asatru/Odinist religious practices.

In Mueller v. Jabe, 2011 U.S. Dist. LEXIS 28891 (WD VA, March 18, 2011), a Virginia federal district court concluded that a former inmate's rights under the 1st and 14th Amendments and RLUIPA were not violated when the Department of Corrections failed to permit him to observe Catholic Holy Days of Obligation b y refraining from work.

In Colliton v. Gonzalez, 2011 U.S. Dist. LEXIS 29954 (SD NY, March 23, 2011), a New York federal district court denied an inmate's motion for reconsideration of his claim that his rights were violated when he was prevented from attending Catholic Mass while housed in the close custody housing unit at Rikers Island.

In Jones v. Oconee County Jail, 2011 U.S. Dist. LEXIS 29365 (MD GA, March 22, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29387, Jan. 25, 2011) and permitted an inmate to move ahead with his claim that jail authorities permitted Christian worship services but not Islamic ones, and that he was denied kosher meals that conform to his religious needs as a Muslim.

In Rivera v. Hartley, 2011 U.S. Dist. LEXIS 30005 (ED CA, March 22, 2011), a California federal magistrate judge recommend rejection of an inmate's Establishment Clause challenge to a finding that he was not suitable for parole. Plaintiff claimed the denial stemmed from his refusal to attend religion-based AA or NA programs. However the court concluded that the parole decision was based on his non-participation in any self-help programs concerning anger management or substance abuse.

In Hill v. Sisto, 2011 U.S. Dist. LEXIS 29415 (CD CA, March 223, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29424, Jan. 26, 2011), concluding that an inmate's claim that his rights under the Establishment Clause were violated in his parole hearing is not an issue that a federal court can consider in a habeas corpus proceeding. Plaintiff claimed his rights were violated when he was required to participate in a religion-based AA or NA program without some evidence of drug or alcohol use in prison.

Saturday, March 26, 2011

Muslims Claim Bad Treatment At U.S. Border Upon Entry From Canada

The Michigan Chapter of the Council on American Islamic Relations this week said that it is receiving dozens of complaints about inappropriate questions and treatment of Muslims crossing into the United States from Canada through border check points in Detroit and Port Huron, Michigan. Yesterday's Detroit News says the complaints range from those of a dozen Somali women who say they were searched in invasive and humiliating ways, to that of an Imam who was handcuffed, searched and questioned for over three hours at Detroit Metropolitan Airport. Muslims say they are often questioned by border guards about their religious practices.

Army Training Its Chaplains For Repeal of "Don't Ask, Don't Tell"

CNN reported yesterday that the Army Chaplain Corps for the last month has been training its 2900 members on what repeal of the "Don't Ask, Don't Tell" policy will mean for chaplains.Chaplains who are unable to reconcile themselves to the policy will be allowed to apply for a voluntary separation from the military. So far, no religious group that endorses chaplains has said that it will withdraw its endorsements to prevent their chaplains from serving. Indeed, so far no individual chaplain has asked for a voluntary separation. A chaplain corps spokesman said: "There's no change for the chaplain corps. We'll continue representing our endorsing groups and balance that with our role as officers and soldiers serving all."

Northwestern States Jesuit Order Reaches $166M Settlement Of Sexual Abuse Claims

The largest settlement ever in a clergy sexual abuse case has been reached between the Oregon Province of the Society of Jesus and 470 victims, most of whom were abused at Native American mission schools by Jesuit priests from the 1940's to the 1990's. CNN reported yesterday that the Province (comprised of Jesuits in five Western states), which is now in bankruptcy (see prior posting), has settled the claims for $166.1 million. Of that, $118 million will be paid by the Province's insurers. In 2007, before filing for bankruptcy, the religious order agreed to pay $50 million to to dozens of Alaska Natives who claimed sexual abuse by Jesuit priests over a 30-year period. (See prior posting.)

Federal Court Refuses To Dismiss Challenge To Zoning Denial For Bible Camp

in Eagle Cove Camp and Conference Center, Inc. v. Town of Woodboro, Wisconsin, (WD WI, March 24, 2011), a Wisconsin federal district court rejected ripeness and jurisdictional defenses put forward by a Wisconsin town in a challenge to its denial of zoning approval for a year-round Bible camp. Plaintiffs claimed the denial violated RLUIPA, the 14th Amendment's equal protection clause, the 1st Amendment's free exercise clause, freedom of worship protections of the state constitution, the federal ADA and the Rehabilitation Act. (See prior related posting.) [Thanks to Art Jaros for the lead.]

Friday, March 25, 2011

Montreal Cabbie Can Keep Some Religious Objects In Taxi Under Settlement Agreement

In Canada, Montreal cabbie Arieh Perecowicz has reached an out-of-court settlement with the Montreal taxi bureau and has agreed to drop his appeal of four tickets he received for violating a Bureau du taxi rule that bars drivers from having items or inscriptions in their cab that are not necessary for the cab to be in service. Some of the items for which Perecowicz was cited were ones reflecting his Jewish faith. (See prior posting.) According to today's Toronto Globe and Mail, under the settlement city officials will permit Perecowicz to keep two mezuzahs (small parchment scrolls) and a photo of former Lubavitch leader Rabbi Menachem Schneerson in his cab. The city will also withdraw four outstanding citations issued to Perecowicz, but the cab driver will still have to pay the four original tickets, along with fines of over $1000, which are the subject of his current appeal. In addition, the Bureau du taxi has issued a new directive to its inspectors encouraging them to show tolerance toward religious objects in cabs and not issue citations unless the religious objects pose a danger to passenger safety or are used for proselytizing.

Times Says Muslim Brotherhood Is Has Growing Political Power In Egypt

In a front page analysis of developments in Egypt, the New York Times today says:

In post-revolutionary Egypt, where hope and confusion collide in the daily struggle to build a new nation, religion has emerged as a powerful political force, following an uprising that was based on secular ideals. The Muslim Brotherhood, an Islamist group once banned by the state, is at the forefront, transformed into a tacit partner with the military government that many fear will thwart fundamental changes.

It is also clear that the young, educated secular activists who initially propelled the nonideological revolution are no longer the driving political force — at least not at the moment

Arizona Legislature Passes Bill Protecting Religious Expression and Religious Groups At Colleges

The East Valley Tribune reported yesterday that the Arizona Senate has passed HB 2565 that will bar colleges and universities from discriminating against students because of their religious beliefs or religious expression and will permit religious and political student groups to exclude members who do not share their beliefs. The bill was passed by the House earlier this month.

The bill provides that when a classroom assignment or discussion requests students' viewpoints, a student may not be rewarded or punished based on the religious content of that viewpoint. It provides that a university may not discipline a student in a counseling, social work or psychology program because the student refuses to counsel a client about goals that conflict with the student's sincerely held religious belief so long as the student consults with the instructor to determine the proper course of action to avoid harm to the client. The bill goes on to provide that universities may not refuse to recognize student groups because of the religious, political or philosophical content of the group's speech, including worship. It provides that political and religious student groups may select leaders and members, resolve disputes and order the group's internal affairs according to their political or religious mission. Finally the bill assures that students have the right to speak, carry sign and distribute flyers in public forums unless the university has a compelling interest to regulate the speech.

UN Human Rights Council Adopts Resolution on Freedom of Belief That Drops "Defamation of Religion" Concept

In a major policy shift, the 47-member United Nations Human Rights Council yesterday unanimously adopted a Resolution on Freedom of Religion or Belief (full text) which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief. Reuters and the Washington Post both quote the U.S.-based Human Rights First campaign that called the resolution "a huge achievement because...it focuses on the protection of individuals rather than religions." For many years, the Organization of the Islamic Conference had pressed to create a concept of "defamation of religion" that has been widely criticized in the United States and by a number of other Western countries. (See prior posting.) Muslim countries set aside that 12-year campaign and joined in approving yesterday's resolution.

The U.S. Commission on International Religious Freedom issued a statement applauding the Human Rights Council's action. USCIRF said in part that it welcomes the Council's "significant step away from the pernicious 'defamation of religions' concept." It explained:

The defamation concept undermines individual rights to freedom of religion and expression; exacerbates religious intolerance, discrimination, and violence; and provides international support for domestic blasphemy laws that often have led to gross human rights abuses. The Organization of the Islamic Conference (OIC) has promoted this flawed concept at the United Nations for more than a decade.

USCIRF and others, including the State Department, members of Congress, and NGOs, have worked hard against the defamation of religions concept for years. USCIRF specifically applauds Secretary Clinton and her team for today’s result. We also thank Representatives Eliot Engel (D-NY), Christopher Smith (R-NJ), Shelley Berkley (D-NV), and Frank Wolf (R-VA), for their leadership roles on this issue....

Egypt Adopts New Law On Political Parties Barring Parties Based On Religion

M and C reports that Egypt's interim cabinet on Wednesday approved a new law that creates a framework for creating political parties. Reuters has summarized the provisions of the new law:

* The parties' principles, programmes, activities and selection of leaders and members must not be based on religion, geography or race. There should be no discrimination on the basis of sex, language, ethnicity or religion.
* Parties must not establish military or paramilitary wings, must not be part of any foreign political organisation and must declare their principles, goals and financial means.
* Parties must provide written notification of their intention to begin work to a parties committee made up of judges.... The notification must be signed by 1,000 founder members....
* Parties will enjoy legal status and can start work 30 days after providing their paperwork to the parties committee, as long as the committee does not object....

Al Masry Al Youm says that Coptic Christians welcome the new law. A member of the Muslim Brotherhood says he is preparing to create a party that will not be religious based. The Muslim Brotherhood itself will apparently be able to continue to exist since it is a political group, not a political party.

Company's Faith-Based Sales Training Challenged By Former Employee

Yesterday's Pittsburgh (PA) Tribune-Review reports on a lawsuit filed against a Beaver County (PA) bathroom remodeling company by a woman who alleges she was forced out of her job with the company by the company's insistence that she attend faith-based training sessions to increase her trust in God. Jo A. Yochum says that when she was hired by Bath Fitter of Pittsburgh, she agreed to have $90,000 withheld from the commissions on her first $3 million in sales to pay for a specialized sales training course. She says the course turned out to be little more than religious proselytizing and indoctrination. The company says that Yochum had an opportunity to review the training program before she accepted it, and that she previously endorsed the training program.

Suit Challenges New York City's Disclosure Requirements For Crisis Pregnancy Centers

A federal lawsuit was filed yesterday on behalf of a number of crisis pregnancy centers challenging on 1st Amendment grounds New York City's recently-enacted ordinance that requires pregnancy services centers to make various disclosures about the services they do and do not offer. The law requires centers to disclose (in Spanish and English) on a sign in their waiting room, on their website, in any ads and orally to clients whether they provide referrals for abortion or contraceptive services or prenatal care . They must also disclose whether they have a medical provider on staff. (See prior posting.) The complaint (full text) in Evergreen Association, Inc. v. City of New York, (SD NY, filed 3/24/2011), alleges that the ordinance violates state and federally protected freedoms of speech, association, assembly and the press and that it is unconstitutionally vague in defining the centers and the kinds of ads that are covered. American Center for Law and Justice which filed the lawsuit issued a press release emphasizing their claim that the law "unconstitutionally compels Plaintiffs to speak messages that they have not chosen for themselves, with which they do not agree, and that distract from and detract from the messages they have chosen to speak."