Religion Clause

Monday, April 11, 2011

Science Teacher's Appeal of Firing Remanded To State Court

In January, the Mount Vernon, Ohio Board of Education fired middle school science teacher John Freshwater on the basis of a referee's report that concluded Freshwater used his classroom to advance his Christian religious views. (See prior posting.) Pursuant to Ohio Rev. Code 3319.16, Freshwater appealed his dismissal to a state common pleas court. The school board, invoking 28 USC 1441, sought to remove the case to federal court based on the court's federal question jurisdiction. Last week in Freshwater v. Mount Vernon City School District Board of Education, (SD OH, April 5, 2011), an Ohio federal district court invoked the Younger abstention doctrine and remanded the case to state court. Today's Columbus Dispatch reports on the decision.

Demonstrators Against France's Ban On Muslim Veils Are Arrested

In Paris on Saturday, French police arrested 59 people who attempted to demonstrate at Place de la Nation to protest the taking effect today of France's ban on Muslim women wearing the niqab or burqa-- which involve full face veils-- in public. (See prior posting.) AP reports that all but 6 of those arrested have been released. Police were also ordered to arrest two others traveling to France from Britain and Belgium. Paris police banned Saturday's rally on the grounds that it threatened public order. The demonstration was called by the group Unicite Tawhib, which is associated with websites that call for Islam to dominate France and the world. Police say Jewish groups and others had planned counter protests.

UPDATE: Global News reports that as the ban on the full-face veil took effect on Monday, several women wearing veils appeared in front of Paris' Notre Dame Cathedral. Two of the women were arrested for taking part in an unauthorized protest. Women can be fined up to $215 (US) or required to attend special citizenship classes. Police have been instructed not to forcibly remove veils from women.

Sunday, April 10, 2011

Another Rabbi Pleads Guilty To Money Laundering In New Jersey Court

On Friday, Orthodox Rabbi Mordchai Fish plead guilty to using purported charitable organizations to launder some $900,000 in 15 separate transactions with developer Solomon Dwek, who became a cooperating witness for the government. According to a release by the U.S. Attorney's Office, Fish received approximately 10% of the funds for his efforts. The Information filed in the case also seeks forfeiture of $90,000 of funds from Fish. Fish has agreed to the forfeiture. Fish's arrest was part of a large sting operation conducted in 2009 that led to charges against 44 public officials and rabbis. (See prior posting.) Last month, another rabbi arrested in the sting operation plead guilty as well. (See prior posting.) Yesterday's Newark Star-Ledger, reporting on Fish's plea, describes the efforts Fish made to hide his participation-- changing cell phones, speaking in a combination of English, Yiddish and Hebrew, and referring to laundered money as "gemoras" in order not to use the term "cash". Sentencing is scheduled for July 28 where Fish is likely to receive a sentence between 33 months and 5 years.

Town Reverses Itself On Roadside Bible Verse Sign

In reaction to a lawsuit filed against it last month (see prior posting), the town of Chichester, New Hampshire's Planning Board has reversed itself and by a vote of 5-2 has agreed to permit an electronic roadside sign that displays a different Bible verse every day to be put up on property along Route 4. A press release by Alliance Defense Fund says that opponents originally argued that the sign might display "objectionable" Bible verses and might distract drivers more than commercial signs.

Suit Challenges High School's Refusal To Recognize Pro-Life Student Club

A federal court lawsuit was filed last week in Minnesota challenging a public high school's refusal to recognize a pro-life student group, the ALIV (All Life Is Valuable) Club, as an official student organization. The complaint (full text) in ALIV Club v. Independent School District #885, (D MN, filed 4/7/2011), alleges that the school refused recognition because the club "does not support the student body as a whole." The suit was filed by the club and a Christian student who is a member and leader of the group. It alleges that the school district has violated the Equal Access Act, the freedom of expression and religion provisions of the 1st Amendment, as well as the equal protection and due process clauses of the 14th Amendment. Friday's Minnesota Independent reported on the case.

Recent Prisoner Free Exercise Cases

In Sareini v. Burnett, 2011 U.S. Dist. LEXIS 34525 (ED MI, March 31, 2011), a Michigan federal district court permitted a Muslim plaintiff to move ahead with his complaint that prison authorities cross-contaminate the vegetarian meal option offered to inmates. However it rejected his claim that his rights were violated when he was denied a halal diet and not permitted to possess certain religious items. The court also rejected a claim that prisoner banquet restrictions prevented accommodation of Muslim religious holidays. The magistrate's recommendation is at 2010 U.S. Dist. LEXIS 142414, Dec. 23, 2010.

In Hennis v. Tedrow, 2011 U.S. Dist. LEXIS 34705 (WD PA, March 31, 2011), a Pennsylvania federal district court rejected claims by a practitioner of "orthodox Nazarite vow Rastafarianism" that his rights were violated when he was told to cut his dreadlocks, and was denied vegetarian meals during a lock down. The court dismissed without prejudice for failure to exhaust administrative remedies his claim that he was deprived of his religious headgear.

In Inzunza v. Moore, 2011 U.S. Dist. LEXIS 34610 (ND TX, March 31, 2011), a Texas federal magistrate judge rejected an inmate's complaint that House of Yahweh members are not permitted to worship together as a separate religious group. There is no outside volunteer presently available to lead the services.

In Brown v. Graham, 2011 U.S. Dist. LEXIS 34345 (ND NY, March 31, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 34383, March 30, 2011), and dismissed an inmate's complaint that his rights were violated when on one occasion he was deprived of a kosher meal.

In Hemphill v. Jones, 2011 U.S. Dist. LEXIS 35040 (ED OK, March 31, 2011), an Oklahoma federal district court rejected a claims by an adherent of nations of Gods and Earths that his rights were violated when on one occasion his vegetarian/ non-pork food tray was cross contaminated, and when a package containing religious items-- vials of oil and home made soap-- was diverted for inspection and never delivered to him.

In Corouthers v. Flowers, 2011 U.S. Dist. LEXIS 35004 (ND FL, March 16, 2011), a Florida federal magistrate judge recommended dismissing a Muslim inmate's claim for $30,000 in damages and mandatory injunctive relief. Plaintiff objected to Muslim prison chaplains calculating the dates of Ramadan using a calendar rather than the actual sighting of the moon.

In Hartmann v. California Department of Corrections and Rehabilitation, 2011 U.S. Dist. LEXIS 36409 (ED CA, March 24, 2011), a California federal district court dismissed a claim against the Secretary of the California Corrections Department complaining that prisons do not employ Wiccan chaplains. The complaint lacked allegations that connected the Secretary to the challenged policy.

In Kirksey v. Frank, 2011 U.S. Dist. LEXIS 36297 (D HI, March 31, 2011), an Hawaii federal district court rejected a Muslim inmate's claim that he was denied a diet consistent with his religious belief and was denied access to religious items.

In Brady v. Marsh, 2011 U.S. Dist. LEXIS 36685 (ED CA, March 28, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that while in the Solano County jail he was not provided with a kosher diet or a Torah.

In Cacciaguidi v. State, (ID App., April 5, 2011), an Idaho appeals court rejected an inmate's claim that her free exercise rights were violated when the staff of a drug rehabilitation program did not permit her to say "God" in therapeutic community proceedings. It also rejected her claim that her free exercise rights were violated by not being able to defend herself against false charges from other participants in the therapeutic community.

In Sisneroz v. Whitman, 2011 U.S. Dist. LEXIS 37240 (ED CA, April 5, 2011), a California federal district court rejected claims by a civil detainee that his free exercise rights were violated when he was not permitted to participate in religious services while being held in jail.

In Maxwell v. Golden, 2011 U.S. Dist. LEXIS 33944 (ED AR, March 29, 2011), an Arkansas federal district court accepted most of a magistrate's recommendations (2011 U.S. Dist. LEXIS 37587, Feb. 7, 2011), and held that an inmate's free exercise rights were not violated by denying him the right to correspond with a female inmate to whom he claimed to be married. Plaintiff claims they were married pursuant to their G-Doffeeist religion. The court permitted plaintiff to proceed with his free expression challenge to the inmate correspondence policy that required him to produce a marriage license or court documentation of his marriage to correspond with his wife.

Saturday, April 09, 2011

Dutch Parliament Will Vote On Banning Kosher and Halal Slaughter

Netherlands Parliament is expected to vote later this month on a bill that, if passed, will outlaw kosher and halal slaughtering of animals. AP reports that the bill would eliminate the exemption that now allows slaughter according to Jewish and Muslim religious requirements without animals first being stunned. The bill may pass because it is supported by an alliance of the Party of the Animals, an animal rights party, and the far right Freedom Party (which is particularly hostile to Dutch Muslims). Centrist parties say the bill is a distraction from the much more serious problem of abuses at regular slaughterhouses. Netherlands' Christian Democratic Party opposes the bill because it will tarnish the country's image as a haven of tolerance for religious minorities. Netherlands was one of the first European countries to allow Jews to practice their religion openly. (Background.)

Ambassador Responds To IG's Critical Report On His Religious Writing And Speeches

U.S. Ambassador to Malta, Douglas Kmiec, an important Catholic supporter of President Obama, reacted yesterday to a report that the State Department Inspector General's Office had released earlier this week criticizing him for spending too much time on writing and speaking on subjects outside his core mission. These writings and speeches have focused on issues such as his religious beliefs and abortion. (See prior posting.) According to AP, Kmiec said in part:

I must say that I am troubled and saddened that a handful of individuals within my department in Washington seem to manifest a hostility to expressions of faith and efforts to promote better interfaith understanding. Our constitution proudly protects the free exercise of religion - even for ambassadors.

State Department Releases 2010 Country Reports On Human Rights Practices

Secretary of State Hillary Clinton yesterday released the State Department's 2010 Country Reports on Human Rights Practices. The reports cover in detail human rights conditions in over 190 countries. The introduction has the following to say about religious freedom around the world:

In Saudi Arabia in 2010, the government restricted access to the Internet.... The official Communications and Information Technology Commission (CITC) ... blocked sites, including pages about Hinduism, Judaism, Christianity, and certain forms of Islam deemed incompatible with Sharia law and national regulations....

In Pakistan, religious freedom violations and violence and discrimination against religious minorities continued. The blasphemy laws were used to harass religious minorities as well as vulnerable Muslims or Muslims with minority views. (In the first two months of 2011, two senior government officials who publicly challenged these laws were brutally killed.) In Saudi Arabia, there were severe restrictions on religious freedom and discrimination on the basis of religion was common. In China, the government continued to demonize the Dalai Lama and harshly repress Uighur Muslims in Xinjiang and Tibetan Buddhists. There were reports of increases in anti-Semitic acts around the world, including the desecration of cemeteries, graffiti, and blood-libel rhetoric, as well as Holocaust denial, revisionism, and glorification. There have also been spikes in expressions of anti-Semitism during events in the Middle East.

Secretary Clinton also announced the creation of a new website, humanrights.gov that offers "one-stop shopping for information about global human rights from across the United States Government."

Friday, April 08, 2011

Control of United Effort Plan Trust Given Back To FLDS Church

Following up on his January decision holding unconstitutional the five years of Utah state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust, federal district judge Dee Benson on Thursday signed a temporary order handing control of the Trust back to FLDS Church leaders. Deseret News reports on the court's action. The court's January decision is already under appeal to the 10th Circuit.

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.

Thursday, April 07, 2011

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.