Muslim Center's Zoning Claims Move Ahead, But Individual Capacity Claims Dismissed

In Irshad Learning Center v. County of DuPage, (ND IL, March 28, 2011), an Illinois federal district court dismissed individual capacity claims against county officials, but permitted plaintiffs to move ahead with most of their other challenges to the denial of a conditional use permit to use their property for Muslim religious purposes and educational activities. The lawsuit alleges that the county violated RLUIPA, the Illinois Religious Freedom Restoration Act and various constitutional provisions in denying the zoning request. The court held that individual members of the County Board and Zoning Board of Appeals have quasi-judicial immunity from liability for the zoning decisions they made. The court refused to dismiss plaintiffs' claims against the county charging violations of the equal terms and substantial burden provisions of RLUIPA and the Equal Protection  and Free Exercise Clauses. Yesterday's Naperville (IL) Sun reported on the decision.

Muslim Brotherhood In Egypt Invites Copts To Join Its New Political Party

Al Masyr Al Youm today reports that Egyptian Muslim Brotherhood Supreme Guide Mohamed Badie has invited Coptic Christians to join the Freedom and Justice Party-- the new political party which the Brotherhood plans to form. Badie says the new party will not preach religion. It will organize athletic and artistic activities, and support new economic institutions, hospitals and schools. The Supreme Council of Egypt's Armed Forces has approved a new law that bars the formation of political parties based on religion. (See prior posting.)

10th Circuit Upholds Bald Eagle Protection Regulations Over RFRA Challenge

In a complicated opinion yesterday, the U.S. 10th Circuit Court of Appeals upheld the current federal regulations that implement the Bald and Golden Eagle Protection Act against a claim that they infringe the religious freedom of adherents of Native American religions who are not members of federally recognized Indian tribes.  In United States v. Wilgus, (10th Cir., March 29, 2011), the court gave this background:

16 U.S.C. § 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. § 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. § 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

Faced with prosecution, Wilgus interposed as a defense the Religious Freedom Restoration Act ... which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. Wilgus argues that the government’s choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers.

In an earlier en banc decision, the 10th Circuit had held that defendant's religious exercise was substantially burdened, but that the government had two compelling interests for doing so. In yesterday's decision, the 10th Circuit dealt with the remaining issue-- whether the current regulation is the least restrictive means of furthering the government's interests in protecting the bald eagle as our national symbol and in fostering Native American  culture and religion. It held that it is.

In the course of its decision, the court refined the articulation of the government's compelling interests. It concluded that the interest was one of protecting the culture of federally-recognized Indian tribes, not protecting Native American religion more generally. It said that the broader formulation would run afoul of the Establishment Clause:

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality...." [citation omitted]. If we were to hold that the federal government has a compelling interest in fostering Native American culture generally by providing special exceptions to criminal laws for Native American religious practices, we are concerned this might run up against this principle.

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federally recognized tribes are political—rather than religious or racial—in nature.

AP reports on the decision.

Senate Subcommittee Holds Hearing On Protecting Civil Rights of American Muslims

The U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights held a hearing yesterday on Protecting the Civil Rights of American Muslims. A webcast of the entire hearing as well as transcripts of statements made by the four witnesses and two committee members are all available on the Judiciary Committee's website. A report on the hearing from Religion News Service describes the widely publicized hearing as follows:

In many ways, the hearing led by Senate Democrats on Tuesday (March 29) was the dramatic antithesis of one House Republicans held earlier this month on homegrown Islamic radicalism.

Instead of gavel-banging, decorum prevailed. Sober statistics stood in for emotional anecdotes, and laughter, not sobs, resounded in the committee room. While an audience packed the gallery, the dais was empty save for the six senators who came and went.

But the most striking change was the second hearing’s focus: Crimes committed against American Muslims, not by them.

(See prior related posting.)

Police In India Arrest 14 For Illegal Conversion To Christianity

Today's Hindustan Times reports that in the Indian state of Orissa yesterday, police arrested 14 individuals, mostly tribals, on charges that they converted illegally to Christianity.  They were charged with violating the Orissa Freedom of Religion Act 1967 which provides that no person shall "convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means". Police are also looking for the pastor behind their conversion.

UPDATE: A report in Christian Today clarifies the basis for the arrest of the 14 individuals who converted. Under the Orissa Freedom of Religion Act 1989, citizens wishing to convert must undergo a police inquiry of their reasons for converting. The conversion must be approved by police and a local magistrate. (See prior posting.)

Punitive Damage Claim Added In Chicago Priest Sexual Abuse Case Against Jesuits

In a previously filed clergy sexual abuse case against the Jesuit order in Chicago, plaintiffs yesterday filed a lengthy motion (full text) seeking to add a claim for punitive damages. Today's New York Times reports on the case which involves abuse committed by former priest Donald McGuire who is now serving a 25-year prison sentence. The motion in John Doe 117 v. Chicago Province of the Society of Jesus, (Cook Co. Cir. Ct., motion filed 3/28/2011) alleges that "the Chicago Jesuits were aware of McGuire's 'problems' with young boys since his ordination in the early 1960's, yet did nothing to stop his abuse of children ... despite many specific warnings regarding McGuire and his pedophilic tendencies."

Judge Backs Off Sentencing Defendants To Read Bible Study Workbook

In Houston, Texas, a new criminal court trial judge has run into a church-state controversy only a few months after taking office. KHOU News yesterday reported that Judge John Clinton offered defendants in his court an option to community service. They could read the book "The Heart of a Problem" and return to discuss it with him in a few months. The book is a Bible study workbook that promotes victorious Christian living. After Harris County lawyers raised questions, Clinton backed off his plan. He said: "All I was trying to do was help. I was told about the book. I received the book. I read the book. I thought, 'Hey this is a great book.' Again, me thinking based on my faith, not thinking in general." Clinton says any defendant who has already been sentenced to read the book can choose something else instead.

Former Alabama Chief Justice Roy Moore To Set Up Presidential Exploratory Committee

Former Alabama Supreme Court Chief Justice Roy Moore is planning to set up a presidential exploratory committee according to a report by CNN. The former judge was removed from office in 2003 for defying a federal court order to remove a large granite Ten Commandments monument that he had placed in Alabama's state courthouse. Moore is a conservative Christian and an active member of the tea party movement. His campaign will focus on repealing the health care reform law, lowering taxes, limiting government and eliminating progressive income taxes.

Closing Arguments Begin In Canadian Test of Polygamy Ban

In Canada, in the British Columbia Supreme Court, closing arguments began yesterday in the reference case testing the constitutionality of Canada's criminal ban on polygamy. The trial began in November. (See prior posting.) The Vancouver Sun yesterday reported that in his closing argument lawyer Craig Jones, representing the B.C. attorney general argued against "the position of the court-appointed amicus that the law is invalid because it was an attempt to force a white, Christian morality on society." He also argued that the polygamy ban applies to multi-party conjugal relationships involving gays and lesbians as well as heterosexuals. Thousands of pages of pleadings, transcripts and other documents from the trial are available online.

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.

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."

Recent Articles of Interest

From SSRN:

• Michael Heise and Gregory C. Sisk, Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, (Michigan Law Review, Vol. 110, 2012).
• Mark L. Movsesian, Foreword: Laicite in Comparative Perspective, (Journal of Catholic Legal Studies, Vol. 49, 2010).
• Alexander Volokh, Everything We Know About Faith-Based Prisons, (March 17, 2011).
• Will Shen and Rohan Bruce Edward Price, Confucianism, Employee Activism and the Case for Moral Relativism, (March 18, 2011).
• Snehashish Ghosh, The Tryst of Destiny: Political Obligation and Religion, (March 25, 2011).
• Luke Goodrich, The Health Care and Conscience Debate: Obama Strikes a Blow Against Conscience, (March 15, 2011).
• Chase D. Anderson, A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry, (Duke Law Journal, Vol. 60, No. 6, p. 1413, 2011).
• Stephen Thuku Mbaaro, Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya, (March 26, 2011).
• Mridushi Swarup, Protection of Scheduled Tribes Under the Indian Constitution: Promise and Performance, (March 20, 2011).
• James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, (Columbia Law Review, Forthcoming).

From SmartCILP:

• A Dialogue Commemorating the Fiftieth Anniversary of To Kill a Mockingbird's Publication. Article by Lance McMillian; response by Judy M. Cornett; reply by Lance McMillian, [Table of Contents], 77 Tennessee Law Review 701-802 (2010).

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.

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."