Arrest of Mardi Gras Demonstrator For Disorderly Conduct Upheld

In Bethel v. City of Mobile, 2011 U.S. Dist. LEXIS 36972 (SD AL, April 5, 2011), an Alabama federal district court found that police officers had probable cause to arrest a Mardi Gras demonstrator for disorderly conduct. Plaintiff Orlando Bethel, along with his wife and three children, attended the Mobile (AL) Mardi Gras parade in order to evangelize their religious beliefs. They carried signs with messages such as: "God hates you wicked baby killing whores repent." A woman attending the parade complained to police officers that Bethel had  shouted at her 13-year old daughter (who was sitting on her boyfriend's lap), calling her a whore and a prostitute. Police took Bethel and his family into custody and seized their signs. The court concluded that the language used by Bethel arguably were fighting words justifying the arrest. It rejected his argument that his arrest violated his 1st Amendment and equal protection rights, and that seizure of his signs violated the 4th Amendment.

Wal-Mart Need Not Accommodate Religious Belief In Admonishing Gay Fellow-Employees

In Matthews v. Wal-Mart Stores, Inc., (7th Cir., March 31, 2011), the U.S. 7th Circuit Court of Appeals upheld Wal-Mart's firing of an employee for violating the company's anti-harassment policy.  Stock clerk Tanisha Matthews was fired after she screamed at a gay employee that God does not accept gays and they will go to hell. Matthews sued Wal-Mart for religious discrimination under Title VII of the 1964 Civil Rights Act, claiming that the belief that gays will go to hell is part of her Apostolic Christian faith. The court said:

[I]f Matthews is arguing that Wal-Mart must permit her to admonish gays at work to accommodate her religion, the claim fails....  In this case, such an accommodation could place Wal-Mart on the "razor’s edge" of liability by exposing it to claims of permitting workplace harassment.

Chicago's Edge on Tuesday reported on the decision.

State Department Says Ambassador Spends Too Much Time On Religious Writing

AP reports that yesterday the State Department's inspector general released a report (full text) critical of U.S. ambassador to Malta, Douglas Kmiec. The report says that Kmeic spends too much time writing and speaking on extraneous subjects.  AP says these have included writing and speaking on his religious beliefs and issues such as abortion. This detracts from  his attention to core mission goals such as maritime security and promoting American business.  While Kmiec is widely respected in Malta, apparently embassy staff is unhappy about the amount of time they have to spend reviewing his writing. Kmiec says he has a special mandate to promote President Obama's interfaith initiatives. Before being confirmed as ambassador, Kmiec was on the faculty of Pepperdine University Law School. From 2001-03 he was dean at Catholic University's law school. [Revised]

Church Denied Preliminary Injunction In Zoning Dispute

In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, 2011 U.S. Dist. LEXIS 36090 (D NH, March 31. 2011), a New Hampshire federal district court agreed with the conclusion previously reached by a magistrate judge (see prior posting) that a Jehovah's Witness congregation was not entitled to a preliminary injunction to override a zoning denial by the Merrimack (NH) Zoning Board of Adjustment. The congregation, which wished to build a Kingdom Hall in an area zoned residential, argued that the zoning ordinance as applied to churches is an unconstitutional prior restraint. The court disagreed, holding in part that "the location of a church, absent other expressive issues, does not implicate the right to free expression." It also concluded that the zoning restriction does not burden the free exercise of religion.

Malaysian Official Says Non-Muslims Quoting Qur'an To Question Islam Can Be Prosecuted

A Malaysian government minister says that non-Muslims who quote verses from the Qur'an for ulterior motives or to question Islamic practices may be prosecuted under the country's Penal Code (Sec. 295 - 298A) for insulting the Qur'an.  Today's edition of The Star reports that Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom says there is no law prohibiting non-Muslims from reciting verses from the Qur'an if it is done to understand Islam. However a National Fatwa Council edict issued last December concludes that non-Muslims who quote or interpreted Quranic verses freely on their own understanding and without sincerity are to be seen as insulting the Qur'an.

British Localism Proposal Raises Religious Discrimination Questions

In Britain last December, the government proposed a new Localism Bill, designed to shift power away from central government to local communities and local organizations. (Background.) A part of the proposal is a "community right to challenge" that gives local voluntary and community groups the right to express an interest in taking over the offering of a local service.  It also includes a "community right to bid" provision.  This calls for local communities to give private community organizations the right to bid on local facilities that are important to community life when the community decides to sell or close them. In a press release today, the British Humanist Association raises the question of whether community services will be offered on a discriminatory basis if religious organizations take them over under these provisions. The government says that these groups will be subject to the provisions of the Equality Act 2010, but it is also seeking ways to prevent extremist groups from taking over local services. A British Humanist Association spokesperson says this is not sufficient, fearing that religious groups will be allowed to discriminate, in part because of exceptions currently in the Equality Act.

Conservative Christian College Prof May Have Free Speech Claim In Denial of Promotion

In Adams v. Trustees of the University of North Carolina- Wilmington, (4th Cir., April 6, 2011), a conservative Christian college faculty member alleged discrimination in the university's refusal to promote him to full professor. He expressed his views largely as a columnist and on radio and television rather than in traditional research. He was also an activist advisor to Christian student groups. The court rejected his Title VII claim, finding he had not proven religious discrimination. However it held that he may have a First Amendment claim based on the right of public employees to be free of retaliation for their speech as a citizen on matters of public concern:

Adams' speech was clearly that of a citizen speaking on a matter of public concern. Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality.

At issue, however, was how to interpret the Supreme Court's 2006 decision in Garcetti v. Ceballos which held that "when a public employee makes a statement pursuant to his 'official duties,' he does not ‘speak as a citizen'."  The 4th Circuit concluded:

Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams’ speech "pursuant to [his] official duties" as intended by Garcetti.

The court remanded the case to the district court for it to determine whether the other elements of a First Amendment claim were present-- whether the employee's interest in speaking on the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and whether the employee's speech was a substantial factor in the adverse employment decision. AP reports on the decision.

Released Time Program With Academic Credit Is Upheld

A South Carolina federal district court on Tuesday upheld the constitutionality of the "released time" program of a Spartanburg (SC) high school.  In Moss v. Spartanburg County School District No. 7, (D SC, April 5, 2011), the court concluded that religious instruction offered under the South Carolina Released Time Credit Act which allows academic credit to be given for a "released time" class is consistent with the Establishment Clause. Under the school's program, a grade in the religion course was awarded by an accredited Christian high school, and that credit is then accepted by the public school system.  Applying the Lemon test, the court said:

[T]he School District’s released time policy is facially neutral, favoring no particular religion or denomination. Further, the policy’s plain language and the School District’s implementation of the released time policy evidence an intent to passively accommodate religion and to insulate itself from pervasive monitoring and oversight of the overtly religious instruction.

Reporting on the decision, GoUpstate explains:

The elective course in question has been offered to Spartanburg High School students since 2007 and is held next door to the high school at St. Christopher's Episcopal Church. Spartanburg County Bible Education in School Time teaches the course, and credit is transferred to Spartanburg High from Oakbrook Preparatory School, a private school in Spartanburg.

Court Rejects Suit Against Catholic Order By Adult Children of Priest

In Latty v. St. Joseph's Society of the Sacred Heart, (MD Ct. Spec. App., April 4, 2011), a Maryland appellate court dismissed a lawsuit for damages brought against the Josephite Fathers by a woman over 50 years old and a man over 60 years old, both of whom recently discovered that their biological father was likely a Catholic priest-- Father Francis E. Ryan-- who was a member of the Josephites. In the 1940's and '50's, Ryan became romantically involved with a woman who was an organist at his church.  She subsequently gave birth to plaintiffs.  Plaintiffs claim that the Josephite Fathers covered up Ryan's affair and concealed the fact that he was plaintiffs' father. The court said it did not have to decide whether the First Amendment barred the lawsuit because the court could dispose of it on other grounds.  It rejected on the merits plaintiffs' claims of concealment; intentional infliction of emotional distress; negligent hiring, supervision and retention; and breach of fiduciary duty.

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.