Philadelphia Police Handling of Gay Pride Protesters Is Upheld

In Marcavage v. City of Philadelphia, 2011 U.S. Dist. LEXIS 34999 (ED PA, March 31, 2011), a Pennsylvania federal district court dismissed a civil rights lawsuit filed by evangelical Christian street preacher Michael Marcavage against the city of Philadelphia. The lawsuit grew out of the action of police at four separate gay pride and gay marriage events at which Marcavage and members of his Repent America organization preached against homosexuality.  Police separated Marcavage and his group from the crowd and allowed them from a new location to preach using amplified sound, leaflets and large signs. Finding these actions to be valid neutral time, place and manner regulations of speech, the court said:  "the City has a legitimate interest in preventing Marcavage — as a counter-protestor of a permitted event — from interfering with the message of the permit holder and ensuring the safety of both the participants as well as Marcavage and his group."

Maryland Appeals Court Upholds Prenup Interpretation By Bet Din

In Lang v.Levi, (MD Ct. Spec. App., April 1, 2011), a Maryland appellate court upheld a decision by a Jewish arbitration panel (Bet Din) refusing to award a wife liquidated damages under provisions of a pre-nuptial agreement.  When Julie Lang and Zion Levi were married, they agreed that if they separated, Levi would pay Lang $100 per day until he granted her a Jewish divorce document (get).  The Bet Din however decided that no damages were due to Lang because because Levi was willing to give her a get soon after the parties stopped living together and Lang initially refused. Lang claims the Bet Din exceeded its authority and that its decision was irrational. The court disagreed. It also held that the Establishment Clause barred it from inquiring whether there is a basis in Jewish law for the procedures used by the Bet Din that resulted in an initial decision being reversed.

The court also rejected Lang's argument that the procedures of the Bet Din violated the requirements of the Maryland Uniform Arbitration Act by requiring her counsel to submit questions to witnesses through Bet Din members instead of permitting direct cross examination.  The court said that so long as the proceedings conform to notions of basic fairness and the litigants have knowingly and voluntarily agreed to the procedures, an arbitration proceeding in a Bet Din is valid, even if it does not comply with the requirements of the MUAA.

Recent Articles of Interest

From SSRN:

• A. Govindjee and Jacques Malherbe, A Question of Blood: Constitutional Perspectives on Medical Decision-Making for Children of Jehovah’s Witnesses, (Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 61, 2010).
• Steven Menashi, Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government, (Seton Hall Law Review, Vol. 42, 2012).
• John D. Inazu, Between Liberalism and Theocracy, (Campbell Law Review, 2011).
• Caroline Mala Corbin, Nonbelievers and Government Religious Speech, (Iowa Law Review, Vol. 97, 2011).
• Patrick McKinley Brennan, Lawmaking, Administration, and Traces of Civic Republicanism: Thought on Jean Porter’s Ministers of the Law, (Journal of Catholic Social Thought: Symposium on Jean Porter's Ministers of the Law: Natural Law Theory of Legal Authority, Forthcoming; Villanova Law/Public Policy Research Paper No. 2010-22).
• Rev. John J. Coughlin, O.F.M., Constitutional Law and Canon Law: The Impact of Neutral Rules on Hierarchical Churches, (Contemporary Issues In Canon Law, Patricia M. Dugan, ed., Gratianus Series, Wilson and Lafleur, 2011).
• Linda Greenhouse and Reva B. Siegel, Before (and after) Roe V. Wade: New Questions About Backlash, (Yale Law Journal, Forthcoming).
• James J. Knicely and John W. Whitehead, In God We Trust: The Judicial Establishment of American Civil Religion, (John Marshall Law Review, Vol. 43, p. 869, 2010).
• Nicholas Walter, The Status of Religious Arbitration in the United States and Canada, (April 2, 2011).
• Heather Kennedy, Intolerance in the Name of Tolerance: Will the United States Supreme Court’s Circular Reasoning in its Decision of Christian Legal Society v. Martinez be the Downfall of Student Organizations as We Know Them?, (January 24, 2011).
• Dawinder S. Sidhu, Interpreting and Revising Title VII to Prohibit Workplace Segregation Premised on Religion, (March 19, 2011).

From SmartCILP:

• Louis J. Virelli III, Judging Darwin: Understanding the New Distributive Model of Evolution Instruction, 13 University of Pennsylvania Journal of Constitutional Law 81-144 (2010).

Recent Prisoner Free Exercise Cases

In Green v. Caruso, 2011 U.S. Dist. LEXIS 30520 (WD MI, March 24, 2011), a Michigan federal district court rejected a Muslim prisoner's claims that his rights were violated by prison authorities allowing his food to be contaminated with pork and their refusal to call him by his Muslim name.

In Keyes v. Krick, 2011 U.S. Dist. LEXIS 30665 (D CO, March 23, 2011), a Colorado federal district court held that while an inmate stated a free exercise claim through his allegations that he was not permitted to discuss his religious beliefs as part of his drug abuse program, the court dismissed the claim on qualified immunity grounds.

In Miller v. Fischer, 2011 U.S. Dist. LEXIS 30605 (ND NY, March 24, 2011), a New York federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 130773, Sept. 22, 2009), and dismissed plaintiff's claim that his rights were violated when prison authorities refused to allow him to possess incense and an incense burner he needed to practice his Pagan/ Wiccan religion.

In Johnson v. Smith, 2011 U.S. Dist. LEXIS 31511 (ND GA, March  25, 2011), a Georgia federal district court dismissed an inmate's complaint that jail officials took his Bible from him while he was in disciplinary isolation.

In Mincy v. DeParlos, 2011 U.S. Dist. LEXIS 31168 (MD PA, March 24, 2011), a Pennsylvania federal district court rejected a Muslim inmate's claims that prison authorities failed to accommodate his Ramadan fast, denied him access to Jum'ah services on one occasion due to the sign-up policy, had an unequal policy on distribution of religious materials and denied Muslim inmates the right to distribute Zakat from their inmate accounts.

In Martinez v. Brown, 2011 U.S. Dist. LEXIS 31247 (SD CA, March 24, 2011), a California federal district court refused to certify, for purposes of a class action asserting free exercise claims, two subclasses--  Native American prisoners in the general prison population and Native American prisoners confined to security, administrative, protective and psychiatric housing units.

In Jackson v. Thomas, 2011 U.S. Dist. LEXIS 31896 (CD CA, March 25, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 31894, March 1, 2011), and permitted plaintiff, who was housed at a state hospital as a sexually violent predator, to move ahead with his challenge to the hospital's refusal to permit him to attend church services when he had his access level reduced for 29 days.

In Riley v. Beard, 2011 U.S. Dist. LEXIS 32640 (WD PA, March 29, 2011), a Pennsylvania federal district court dismissed a Muslim inmate's 1st Amendment challenge, but permitted him to proceed with his RLUIPA claim that his free exercise of religion was substantially burdened when prison authorities insisted that he pay to obtain dates with which to break the Ramadan fast and to share in the Eid al-Fitr feast. Plaintiff alleged he was indigent and that his administrative segregation prevented him from obtaining prison employment.

In Williams v. Sibbett, 2011 U.S. Dist. LEXIS 32385 (D UT, March 25, 2011), a Utah federal district court dismissed a series of claims by an inmate charging the Utah Board of Pardons and Parole with considering religion in making parole decisions and in favoring members of the Mormon church.

In Silvagnoli v. Sister Marylou, 2011 U.S. Dist. LEXIS 32989 (WD NY, March 29, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 32983, March 4, 2011) and dismissed a Santeria prisoner's complaint that the coordinating chaplain inspected his Santeria shrine, and that he was denied access to the stove in the kitchen early in the morning to use to make coffee as a daily offering to the saints and his ancestors.

Evidence of Religious Belief As Motive For Murder Is Admissible Over Free Exercise Challenge

In State of Oregon v. Brumwell, (OR Sup. Ct. March 25, 2011), the Oregon Supreme Court, in reviewing the murder conviction and death sentence imposed on defendant, rejected defendant's argument that evidence of Satanism introduced at the penalty phase of his trial violated his free exercise rights. The evidence at the penalty phase of the trial for murder of a fellow-inmate related to the motive for an earlier murder for which defendant was in prison.  The Court held:

[D]efendant's argument assumes that the evidence was admitted only to prove that he was an adherent of a disfavored religion, and he argues that evidence admitted for that purpose infringes the free exercise of his religious beliefs. The difficulty with defendant's argument is the assumption that underlies it. As explained above, the trial court admitted the challenged evidence because it bore on defendant's motive ...without regard to the specific nature of the motive. Given the trial court's religion-neutral ruling, defendant's state constitutional argument fails.

South Dakota Law Protects Religious Orders From Native American Sex Abuse Lawsuits

A South Dakota trial court judge on Thursday dismissed a sexual abuse lawsuit that had been brought by ten Native American plaintiffs against the Catholic Diocese of Sioux Falls, Blue Cloud Abbey, the Oblate Sisters of the Blessed Sacrament and the Sisters of the Blessed Sacrament. The Rapid City (SD) Journal reports that the court dismissed negligence and breach of fiduciary duty claims against the religious entities that staffed the St. Paul's School on the Yankton Reservation prior to 1975 when it came under tribal control. The dismissal follows up on a ruling the judge made in February.  The court relied on a 2010 amendment to South Dakota's statute of limitations for damage actions stemming from childhood sexual abuse (SDCL 26-10-25).  That amendment provides that "no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse," even if the suit was brought within the statutory 3 years from the time the injury caused by the act was, or should have been, discovered. The attorney for plaintiffs charges that the 2010 law, backed by religious orders, targets the rights of Lakota and Oglala people who were students during the reservation boarding school era. He says Thursday's decision will be appealed. Nearly 70 cases have been filed by former St. Paul's students and another 17 by former students at the St. Francis Mission school on the Rosebud Reservation, charging physical, sexual and emotional abuse in the 1950's, 60's and 70's.

Preliminary Injunction Forces Bus System To Accept Ads From Anti-Jihad Group

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation ("SMART"), (ED MI, March 31, 2011), a Michigan federal district court granted a preliminary injunction preventing the bus system in four southeastern Michigan counties from rejecting anti-jihad ads that plaintiff sought to place on buses.  According to a press release from the Thomas More Law Center, the ads read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get Answers!" SMART rejected the ads under its policy that prohibited, among others, political ads or ads that are likely to hold any group up to scorn or ridicule. The court held that while it is likely that the bus advertising space  is a non-public forum, the restriction is unconstitutional because "there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion."

12 Killed At U.N. Mission In Afghanistan After Demonstration Against Florida Qur'an Burning

According to CNN, at least 12 people were killed and 24 injured in Afghanistan's Mazar e-Sharif in an attack on a United Nations assistance mission building. The attack with knives and small arms followed a demonstration protesting a reported burning of a Qur'an last month by controversial Florida pastor Terry Jones. (See prior related posting.) The dead included 8 U.N. workers and 4 Afghans.

8th Circuit: Title VII Does Not Require Saturdays Off For Postal Worker

In Harrell v. Donahue, (8th Cir., March 31, 2011), the 8th Circuit held that the U.S. Postal Service was not required to accommodate a Seventh Day Adventist letter carrier's request to have every Saturday off. The court ruled that the refusal to accommodate did not violate Title VII of the 1964 Civil Rights Act because accommodation would have required violation of the Postal Service's collective bargaining agreement, or or its seniority system. The court also rejected plaintiff's RFRA claim, holding that Title VII is the exclusive remedy for employment discrimination claims by federal workers. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

National Park Service Asked To Create Policy On Religious Displays

Public Employees for Environmental Responsibility, a national non-profit alliance of local, state and federal scientists, law enforcement officers, and land managers, yesterday issued a press release complaining that the National Park Service has failed to create a policy regarding religious displays on federal park lands.  The group points to two recent controversies that remain unresolved.  One involves a Buddhist stupa on the grounds of the Petroglyph National Monument in New Mexico. The other involves bronze plaques with biblical verses in Arizona’s Grand Canyon National Park. The stupa was on land purchased by a national park. The bronze plaques, which were removed by Park Service officials, but whose placement is being reconsidered, belong to the Evangelical Sisterhood of Mary. Yesterday's Denver Post reports on the situation.

Native American Student Sues To Challenge Dress Code Barring Long Hair

The ACLU of Louisiana announced yesterday that it has filed a federal lawsuit on behalf of a Native American junior high school student challenging the Livingston Parish (LA) Dress Code after the student was suspended for wearing long hair in accordance with the cultural and religious traditions of the United Houma Nations tribe.  The complaint (full text) in  Doe v. Livingston Parish School Board, (MD LA, filed 3/31/2011) claims that the student's free exercise and free expression rights, his rights under the Louisiana Preservation of Religious Freedom Act, and his parents due process rights to control the education and religious upbringing of their son, have all been violated. Houma Courier reports on the lawsuit.

Suit Challenges Suspension of Student For Preaching, Bringing Bible To School

A lawsuit filed last week in a California federal district court charges that the Grossmont Union High School District infringed the constitutional rights of 16-year old Kenneth Dominguez when it told him he could not bring his Bible to school or preach at school. According to a press release from the Pacific Justice Institute, eventually the student was suspended for two days when he refused to comply.  According to yesterday's San Diego Union Tribune, the school district says that Dominguez has a history of disruptive behavior and was interrupting class.

Lawsuit Challenges Denial of Demolition Permit For Mormon Chapel To Be Built

The Albany (NY) Times Union yesterday reported that the Church of Jesus Christ of Latter Day Saints is suing the city of Albany and its Planning Board in state court over their refusal to issue a permit so that the church can demolish a former Catholic school building in preparation for construction of a Mormon chapel. The suit alleges that the refusal violates RLUIPA and that the city's demolition review ordinance is unconstitutional. The Planning Board says that the now-empty Catholic school building is intertwined with the character of the neighborhood and could be renovated for use at the same cost as building a new chapel.

Plaintiff Can Move Ahead On Some Claims Growing Out of Dispute Over Driver's License Photo

Islam v. City of Bridgeton, 2011 U.S. Dist. LEXIS 32411 (D NJ, March 28, 2011), is a lawsuit growing out of a heated exchange between a Muslim woman (named Pamela Winrow Islam) and the manager of a branch office of the New Jersey Motor Vehicle Commission over the conditions under which Islam could have her drivers' license photo taken wearing a religious headscarf. The argument ended in a local police officer escorting Muslim out. The parties disagree over whether force was used to do so. Islam sued alleging violation of various of her constitutional rights, violation of New Jersey's Law Against Discrimination, as well as false arrest and malicious prosecution. The court allowed plaintiff to move ahead with various of her claims as to some of the defendants, but not as to  others.

In Disadvantaged Business Enterprise Program, Anti-Union Views Are Not Religious Beliefs

In Best Wood Judge Firewood and Tree Service v. U.S. Department of Transportation, 2011 U.S. Dist. LEXIS 32405 (ED WI, March 25, 2011), a Wisconsin federal district court rejected a claim by the owner of a land clearing business that his free exercise rights were infringed when he was denied certification that would have made him eligible for a federally-funded Disadvantaged Business Enterprise program. Owner Thomas Holzrichter claimed he was "socially disadvantaged" since he had consistently been denied subcontracts on Wisconsin Department of Transportation projects because neither he nor his employees were union members. Holzrichter claimed that he had strong moral and religious beliefs that precluded him from joining a union. However the court held:

Holzrichter admits that his Roman Catholic faith does not reject union membership. Moreover, Holzrichter is not opposed to all unions or the concept of union membership—and approves of teachers' and state workers' unions such as his wife's union—thereby reducing any inference that he holds an anti-union belief "religiously." Holzrichter is vehemently opposed to joining Local 139, and that objection may be based in his personal beliefs, ethics and morals. But in this court's opinion Holzrichter's opposition to Local 139 alone does not equate with his devotion to the divine, an ultimate being, or that which has ultimate importance. Holzrichter's opposition to Local 139 is neither required by a religious faith nor part of any personal religiousness; it is a personal preference based on personal principles.

Suit In Lebanon Attacks Politician For Criticizing Veiled Muslim Women

Lebanon's Daily Star reports on a lawsuit that has been filed in Beirut against Wiam Wahhab, leader of the Tawhid Party, by 70 Lebanese and Saudi women for remarks Wahhab made about Muslim women's veils. In a television interview earlier this month, Wahhab described Saudi women as being made to wear “black trash bags."  The lawsuit claims that Wahhab should be prosecuted for inciting religious hatred (Lebanon Penal Code Art. 317) and insulting religion (Lebanon Penal Code Art. 474). Plaintiffs also want the court to shut down the Tawhid Party.  Wahhab has apologized for his remarks, saying they were aimed a Saudi authorities for their oppressive treatment of women.

Anti-Abortion Group Challenges Library's Rules For Use of Meeting Rooms

An anti-abortion group, 40 Days for Life, filed a federal lawsuit yesterday against a Wisconsin public library that cancelled the group's scheduled showing in a library public meeting room of a film titled Blood Money.  The library claimed that the film would interfere with normal use of the library and therefore was in violation of the library's rules for use of meeting rooms.  The Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction  (full text) in 40 Days For Life of Wassau v. Illick, (WD WI, filed 3/30/2011), claims that the Marathon County (WI) library's standards for use of public meeting rooms are vague and place unlimited discretion in the hands of the library director and trustees. It also claims the rules are not viewpoint neutral. Thomas More Society yesterday issued a press release announcing the filing of the lawsuit.

UPDATE: In a letter dated March 31, counsel for Marathon County  wrote plaintiffs' counsel informing them  that  the library will now permit showing of the scheduled film. The letter says in part: "Although the library had legitimate concerns raised by Facebook postings regarding the staging of a protest at the library as a result of you client's actions, it has been determined that this matter should not be litigated." (TMS press release).

New York Syrian Jewish Community Leader Pleads Guilty To Money Laundering

The U.S. Attorney's Office in Trenton, New Jersey announced on Monday that 89-year old Rabbi Saul Kassin, a leader of New York's Syrian Jewish community pleaded guilty to an Information (full text) charging him with operating an illegal money remitting business. As summarized by JTA:

Kassin confessed to using his Magen Israel Society to launder money given to him by Solomon Dwek, a real-estate tycoon and the son of a prominent Syrian rabbi who was arrested in 2006 for a $50 million bank fraud. Under the system, Kassin and the charity kept 10 percent. Dwek later became a federal informant.

As part of his plea agreement, prosecutors will nos seek a prison sentence. However Kassin agreed to forfeit $367,500 in funds seized from the Magen Israel Society's bank account. He could also be fined up to $250,000. (See prior related posting.) Kassin was originally arrested as part of a larger public corruption and money laundering probe in 2009. (See prior posting.)

Court Agrees University Could Not Reasonably Accommodate Program Coordinator's Sabbath Needs

In Crider v. University of Tennessee, Knoxville, (ED TN, March 28, 2011), a Tennessee federal district court dismissed a case brought by a Seventh Day Adventist who claimed that the University of Tennessee failed to accommodate her religious beliefs that precluded her from performing any work from sundown Friday to sundown Saturday.  Kimberly Crider was hired as coordinator in the University's Programs Abroad Office. Among her responsibilities was the monitoring on rotating week ends of an emergency cell phone that could be called by students and faculty who are traveling abroad. Various other job responsibilities also called for week end work. The court found that the University could not reasonably accommodate Crider without incurring undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

4th Circuit Upholds West Virginia's Vaccination Requirements Over Constitutional Challenges

In Workman v. Mingo County Board of Education, (4th Cir., March 22, 2011), the U.S. 4th Circuit Court of Appeals upheld West Virginia's statute requiring vaccination for various diseases as a condition of attending school. The court rejected plaintiff's free exercise, equal protection  and substantive due process challenges to the requirement. (See prior related posting.) The Charleston Gazette reporting on the case yesterday says that plaintiff will seek review of the decision in the Supreme Court.