Recent Prisoner Free Exercise Cases

In Reiss v. Stansel, 2011 U.S. Dist. LEXIS 33280 (D AZ, March 28, 2011), an Arizona federal district court dismissed claims brought against Immigration and Customs Enforcement officials who were charged by plaintiff with failing to report to higher officials the failure of employees of a private prison facility to accommodate his request for accommodation of his Jewish religious practices.

Marcusse v. United States, 2011 U.S. Dist. LEXIS 33786 (WD MI, March 30, 2011) is a suit by a prisoner to set aside her fraud sentence on various grounds. The court rejected her argument that her church had been targeted and that her due process rights were violated by the government's use of terms such as "checkbook church." It reserved judgment on the inmate's argument that jury instructions failed to address her good faith belief about her church's tax exemption.

In Williams v. Beard, 2011 U.S. Dist. LEXIS 34310 (MD PA, March 30, 2011), a Pennsylvania federal district court rejected a Muslim inmate's complaint regarding Christmas decorations in the prison's multi-faith chapel.

In Banks v. Almazar, 2011 U.S. Dist. LEXIS 33739 (ND IL, March 30, 2011), two Muslim men who were involuntarily committed to a mental health treatment center claim they were denied access to Jum'ah services, and one of the plaintiffs claims he was denied an adequate diet that met his religious needs.  As to most claims, an Illinois federal district court held that there were still factual issues to be determined-- many relating to which defendants were involved-- so that summary judgment was not appropriate. However it did award one plaintiff summary judgment on his claim that his free exercise rights were violated in being denied access to religious services.

In Lowery v. Edmondson, 2011 U.S. Dist. LEXIS 33795 (ED OK, March 29, 2011), inmates who are members of the Moorish Science Temple of America complain that the prison's headgear policy discriminates against them by requiring all religious headgear to lay flat on the head, and also complain that they are not permitted to keep their fezzes in their cells. An Oklahoma federal district court dismissed a number of the claims for failure to exhaust administrative remedies, but permitted one plaintiff to move ahead with his claim regarding keeping his fez in his cell and wearing it for religious services.

In Roberts v. Klein, 2011 U.S. Dist. LEXIS 34053 (D NV, March 22, 2011), a Nevada federal district court permitted a "Black Inmate of Jewish Tenet and Faith" to proceed with his challenge to denying him kosher meals because his Jewish faith was not verified by an outside entity. Plaintiff also claimed that white inmates were not required to have such verification. He was also permitted to move ahead on his claim that black inmates, but not white inmates, of Jewish faith have their work assignments terminated for attending Jewish services.

Church Has No Vested Right Under Prior Zoning Ordinance

In Christian Assembly Rios De Agua Viva v. City of Burbank, (IL App., March 31, 2011), an Illinois appellate court refused to grant a congregation a preliminary injunction to permit it to operate a church on property it has contracted to purchase.  The city recently amended its zoning ordinance precludes churches on the property in question. The church argued it had a vested right under the pre-amended ordinance to operate on the property. The court disagreed, since the church's argument was based merely on its belief that the pre-amendment ordinance violated state and federal law and the requirement that churches obtain a special use permit could be successfully challenged. The court went on to uphold the amended ordinance that excluded from commercial districts any uses that did not produce taxable income.

Chabad Seeks Civil Contempt Sanctions Against Russian Government In Expropriated Library Case

In an unusual legal move Monday, Chabad-Lubavitch filed a motion (full text) with the U.S. District Court for the District of Columbia asking it to impose civil contempt sanctions on the Russian government for Russia's failure to comply with a default judgment ordering it to return two valuable expropriated collections of Jewish books to Chabad. (See prior posting.) The motion filed in Agudas Chasidei Chabad of the United States v. Russian Federation suggests sanctions of at least $25,000 per day. Reporting on the filing of the motion, Blog of Legal Times quotes Chabad's attorney Nathan Lewin who said that a recent D.C. Circuit case imposing civil contempt sanctions on the Democratic Republic of Congo set the state for Chabad's motion.

Trial Court Invalidates Illinois Pharmacy Board Rule On Dispensing Plan B

An Illinois state trial court judge yesterday in Morr-Fitz, Inc. v. Blagojevich, held that an Illinois State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception violates Illinois' Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act (RFRA), and the 1st Amendment's free exercise clause. Life News reports that the court countered the government's contention that it had a compelling interest in assuring timely access to drugs by indicating that there was no evidence that anyone was ever unable to obtain emergency contraception because of a religious objection. According to the Chicago Sun Times, the state plans to appeal the decision. (See prior related posting.)

Arizona Legislature Passes Broad Protection For Religious Beliefs In Occupational Licensing

After passage by the state Senate last month, on Monday the Arizona House of Representatives passed and sent to the governor for her signature SB 1288, a broad bill protecting against basing denial of occupational licenses or positions on public bodies based on a person's exercise of religion. The bill provides:

A. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person's exercise of religion.

B. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person's refusal to affirm a statement that is contrary to the person's sincerely held moral or religious beliefs, regardless of whether those beliefs are specifically espoused by a recognized church or religious body.

C. A person's exercise of religion is not unprofessional conduct.

D. Government shall not deny a person a position on a board, commission, committee or public body based on the person's religious beliefs or exercise of religion.

E. This section does not authorize any person to engage in sexual misconduct or any criminal conduct.

F. For purposes of this section ... "sexual misconduct" means any sexual conduct proscribed by the person's licensing board or agency. Sexual misconduct does not include religious expression or beliefs.

Yesterday's Verde Independent sets out examples given by legislators of situations at which the bill is directed.  In 2008, the State Bar of Arizona proposed adding "sexual orientation" to an oath taken by lawyers that they will not permit "considerations of gender, race, age, nationality, disability or social standing to influence my duty of care."  In Minnesota, license issues were raised when Muslim cab drivers refused to transport. passengers carrying alcohol.

Utah University President Speaks On Challenges To Religious Freedom

University of Utah president Michael K. Young, formerly a member of the U.S. Commission on International Religious Freedom and an advisor on religious freedom to the Church of Jesus Christ of Latter Day Saints, addressed the LDS International Society on Monday on the challenges to religious freedom. KSL News reports on the speech in which Young elaborated on three arguments he says that critics are using to limit freedom of religion in the U.S.: (1) Religion is not special; (2) Religion is good, but a private affair; and (3) Religion has a negative impact.  In the Q and A, Young, expanding on his contention that Mormons should be among the most passionate civil libertarians in the world, said: "we all ought to be members of the ACLU."

In France, Controversial Debate On Secularism Is Held

At a hotel in Paris yesterday, some members of France's governing party, the Union for a Popular Movement, held a controversial debate on the nature of secularism in France. 600 religious leaders, legislators and journalists attended.  The New York Times reports that the three-hour debate was initiated by President Nicolas Sarkozy and organized by the leader of his party, but some, including Prime Minister Francois Fillon, refused to take part out of concern the debate would stigmatize Muslims and push the party too far to the right. Leaders of six major religions issued a joint statement expressing concern about the debate. Those who organized the event are trying to support a Westernized version of Islam that accepts gender equality and the French cultural norm that religious beliefs are a private matter.

Meanwhile RFI reports on a successful one-year government-sponsored diploma at the Catholic Institute of Paris that teaches Muslim religious and cultural leaders about France's secular tradition. However fewer students are enrolling in reaction to France's ban on the full face veil and this week's debate on secularism, which they see as scapegoating of Muslims.

Civil Courts May Not Decide Questions of How Church Presents Financial Records To Members

In Nelson v. Baker, (KY App., April 1, 2011), the Kentucky Court of Appeal dismissed a lawsuit brought by members of a Baptist church complaining, among other things, that defendants were not reporting to members on the church's financial affairs. the Court of Appeals held that, based on the First Amendment, it lacked jurisdiction over the complaint because: "The Church’s financial records and method of presentation to the congregation are clearly matters of internal governance and organization, and are, therefore, not subject to interference by the court."

US Female Troops In Afghanistan Often Wear Head Scarves While Interacting With Local Population

American military officials are defending Department of Defense policy that encourages female service members in Afghanistan to wear head scarves, similar to traditional Afghan hijabs, when interacting with local civilians. CNN reported yesterday that American women are not being ordered to wear the head scarves, but many do as a sign of courtesy and respect toward the local population. Since Afghan culture bars women from interacting with men who are not members of their family, female troops are the ones to interact with local women.

Suit Challenges Prayer Mural In High School

The ACLU of Rhode Island yesterday announced that it has filed a federal lawsuit on behalf of a high school student challenging an 8-foot high prayer mural that has been displayed on the wall in the auditorium of Cranston (RI) High School West and of a Cranston middle school for nearly 50 years. The complaint (full text) in Ahlquist v. City of Cranston, (D RI, filed 4/4/2011) says that the prayer was adopted as the official school prayer of Cranston West around 1960.  It begins by asking "Our Heavenly Father" to grant students the desire to do their best, to help them grow, be kind, be good sports, and the like.  The suit alleges that display of the prayer violates plaintiff's 1st and 14th Amendment rights.

UPDATE: Here is plaintiff's Trial Memorandum of Law, filed 9/9/2011.

Supreme Court Holds Taxpayers Lack Standing To Challenge Tax Credits For Tuition Contributions

In a 5-4 opinion today in Arizona Christian School Tuition Organization v. Winn, (Sup. Ct., April 4, 2011), the U.S. Supreme Court held that taxpayers lacked standing to bring an Establishment Clause challenge to Arizona's program that provides tax credits for contributions to school tuition organizations that in turn provide scholarships to students in private schools-- many of them religious schools.  Kennedy's opinion (joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito) rejected plaintiffs' argument that the standing rule announced in Flast v. Cohen applies, saying:

In their view the tax credit is, for Flast purposes, best understood as a governmental expenditure. That is incorrect. It is easy to see that tax credits and governmental expenditures can have similar economic  consequences, at least for beneficiaries whose tax liability is sufficiently large to take full advantage of the credit. Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience.... In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connection would exist even if the conscientious dissenter’s tax liability were unaffected or reduced...... When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative.... And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.

Justice Scalia also wrote a concurrence, joined by Justice Thomas, urging that Flast be overruled.

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, arguing that the majority's "arbitrary distinction" between expenditures and tax credits:

threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely becauseappropriations and tax breaks can achieve identical objec-tives, the government can easily substitute one for the other. Today’s opinion thus enables the government toend-run Flast’s guarantee of access to the Judiciary.

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.]