Can Faith-Based Groups Receiving Government Funds Have Discriminatory Voting Policies?

A New York Times report on Friday raises the question of what sort of anti-discrimination rules apply to faith-based social service agencies that receive federal government funding. In Brooklyn, New York's Crown Heights-- an area populated mostly by Hasidic Jews-- the Crown Heights Jewish Community Council has received millions of dollars in government grants over the years to offer a variety of social services.  However, the Council's rules impose strict limits on who can vote for leaders of the Council.  To vote, one must be Jewish and a religiously observant residents of Crown Heights; must be married, previously married or at least 30 years old; and must be male.  Now one Crown Heights resident, Eliyahu Federman, is challenging the Council's disenfranchisement of women. The Council's executive director says that the entire Council structure, including voting policy, is under review. The next elections are in 2013.

Reform Demands In Egypt Hit Al-Azhar University

MEMRI on Friday published an extensive analysis of how the protests for reform and change in Egypt are impacting Al-Azhar University, the most important center of Sunni Muslim study. Critics are claiming that Al-Azhar is too too identified with the Mubarak regime and that it is allowing political Islam to take over the revolution in Egypt instead of providing leadership for change.

Statements Made In Church Annulment Proceedings Are Absolutely Privileged

Purdum v. Purdum, 2011 WL 1430279 (Dist. Ct. Kan., April 11, 2011) (available on Westlaw), involved a defamation claim by plaintiff against his former wife alleging that in the course of ecclesiastical annulment proceedings she submitted a written statement to the Catholic Archdiocese alleging, among other things, that plaintiff "was diagnosed bipolar." The court denied a request by the Archdiocese to intervene as a party to argue that the court lacks jurisdiction over plaintiff's claim, but the court permitted the Archdiocese to submit issues as an amicus curiae. The court rejected the Archdiocese's claim that it should dismiss the case under the "church autonomy doctrine", because that applies only when there is a challenge to action by a church that would involve courts in deciding matters of faith, doctrine or internal governance. However, the court concluded that:

Nonetheless, the Free Exercise Clause of the First Amendment does apply in this case to protect the defendant's confidential communications with her church or its representatives.... [I]n this case, the statement is absolutely privileged as made pursuant to the defendant's First Amendment right to Free Exercise of her religion..... To hold otherwise, would require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Today Religion Clause Blog Is 6 Years Old !

Religion Clause is 6 years old today. Thank you to all my readers who have been on board for many years and to the many newer visitors as well. If you continue to find Religion Clause useful, please recommend it to others who are also interested in church-states and religious liberty issues.

Sometime next month, Religion Clause will record its 1 millionth visitor. All of you have contributed to the success of the blog. Many who are professionally involved in church-state and religious liberty issues read the blog; and so do others who are online because of personal interest in the subject areas covered. The blog continues to be committed to religiously and ideologically neutral reporting of legal and public policy developments. I believe this is a unique niche in the blogosphere.

My goal is to keep the posts reasonably short, but provide extensive links, particularly to primary source material. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause. You can reach me at religionclause@gmail.com. I plan to maintain the same format for the blog in the upcoming year.  However I welcome e-mails from all of you suggesting changes or different directions you would find useful or interesting.

Recent Prisoner Free Exercise Cases

In Pelzer v. McCall, 2011 U.S. Dist. LEXIS 38349 (D SC, April 6, 2011), a South Carolina federal district court rejected a Muslim inmate's request for a preliminary injunction. The inmate claimed that the Establishment Clause was violated by the prison Chaplain's Office distributing to him a newsletter containing references to Christianity.

In Anderson v. Arizona Department of Corrections, 2011 U.S. Dist. LEXIS 39352 (D AZ, April 1, 2011), an Arizona federal district court dismissed an inmate's claim that his free exercise rights were violated because he was not allowed to possess hardcover books and he cannot find his religious books in soft cover editions.

In DeVon v. Diaz, 2011 U.S. Dist. LEXIS 39393 (ED CA, April 1, 2011), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his rights under the 1st Amendment and RLUIPA were infringed when he was denied the right to eat kosher food and was denied fellowship.

In Annabel v. Caruso, 2011 U.S. Dist. LEXIS 39790 (WD MI, April 12, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 39788, Jan. 18, 2011) and dismissed an inmate's claims that his rights under the 1st Amendment and RLUIPA were violated when prison authorities refused to provide him with a Hebrew calendar or relay to him the dates of the 2008 Fall Holy Days. However plaintiff was permitted to proceed on his claim for grape juice and unleavened bread during Passover.

In Hare v. Hayden, 2011 U.S. Dist. LEXIS 40683 (SD NY, April 14, 2011), a New York federal district court rejected an inmate's claim that her removal from the position of clerk to the prison's Catholic chaplain was retaliation for her complaints about another chaplain's removing Catholic religious items.  The court also rejected various claims regarding the suspension of certain Catholic religious programs and occassional interference with plaintiff's staying in the chapel for Mass.

In Myers v. Raemisch, 2011 U.S. Dist. LEXIS 40373 (ED WI, April 5, 2011), a Wisconsin federal district court permitted an inmate who is an initiate into the Hermetic Order of the Golden Dawn was allowed to move ahead with his suit seeking permission to obtain a particular tarot card deck that was designed exclusively for use by believers of the Golden Dawn, as well the tarot's companion book. Department of Corrections  rules permitted only a different tarot.

9th Circuit: Contract Prison Chaplains Are Not "State Actors"

In Florer v. Congregation Pidyon Shevuyim, (9^th Cir., April 15, 2011), the U.S. 9^th Circuit Court of Appeals held that a Jewish organization that contracted with the Washington State Department of Corrections to furnish Jewish chaplains for prisoners was not a “state actor” for purposes of 42 USC 1983 or RLUIPA when it denied an inmate a Torah, a Jewish calendar and a visit by a rabbi on the ground that the inmate was not Jewish. The court concluded that the organization’s policy to furnish services only to inmates that are Jewish according to its criteria is its own policy, not that of the state. Nor was the organization or its chaplain carrying out a “public function” when they denied religious materials and services to plaintiff.  The court also rejected plaintiff’s “joint action” argument. Thus the court dismissed plaintiff's lawsuit since private parties not acting on behalf of or jointly with the state are not liable under Sec. 1983 or RLUIPA.

10th Circuit Stays District Court Orders In FLDS Trust Case

Friday there was yet another development in Fundamentalist Church of Jesus Christ of Latter Day Saints v. Lindberg, this time in response to an emergency motion filed by state judge Denise Lindberg.  Attempting to defuse the battle between state and federal courts over what to do with the FLDS United Effort Plan Trust (see prior posting), the 10th Circuit Court of Appeals issued a stay of both the preliminary injunction issued by the federal district court that handed the trust back to the FLDS Church and the district court order issued to state judge Denise Lindberg to show cause why she should not be held in contempt for defying the federal court order. The 10th Circuit ordered that no action should be taken to implement or enforce either of these. (Full text of stay order). All the parties were invited to brief the issues by April 22, and the FLDS Church was instructed to cover at least the issues of laches, res judicata, judicial immunity, and the propriety of injunctive and/or declaratory relief against Judge Lindberg. The Deseret News reports on the 10th Circuit's action.

UPDATE: AP reports that on April 27, the 10th Circuit extended the stay while the appeal is pending.

Israeli Rabbi Seeks Imam's Help In Preventing Sale Of Leavened Products During Passover

With the Jewish holiday of Passover approaching-- it begins Monday night-- Israeli authorities are again faced with issues of enforcing the country's law against businesses publicly displaying leavened products (hametz) for sale or consumption. (See prior related posting.) Apparently in recent years, the northern Israeli city of Akko has become a center for non-religious Jews seeking to buy hametz.  The ban on selling hametz does not apply to Akko's mostly-Arab Old City.  YNet News today reports that Akko's chief rabbi, Yosef Yashar, has approached the influential imam of the city's al-Jazar Mosque, Sheikh Samir Asi, and asked him to attempt to to get Arab business owners to voluntarily refuse to sell hametz to Jews during Passover. The sheikh says he will ask business owners to honor the rabbi's request, but he is not certain how many will comply.

Hungary's Controversial New Constitution To Be Voted On Monday

In Hungary, civil society groups have called protests for today to express their opposition to the draft new Constitution (summary of changes) for the country. According to Reuters, the new Constitution has been a long-held goal of the Fidesz Party that last year won a majority of the seats in Hungary's National Assembly. The Party says that the new Constitution, replacing Hungary's Communist-era document, will complete the democratization process that began in 1989.  Critics of the new document, whose text was released only last month, say it reflects Christian and nationalist thinking. A European Parliament group says that while the new document prohibits discrimination on the basis of race, sex, disability, language, religion, political views, national or social origins, ownership of assets, or birth, it does not ban discrimination on the basis of sexual orientation or gender identity. Among the other controversial provisions are ones that protect the life of the fetus beginning at conception and a provision that defines marriage as the union of a man and a woman. It is expected that the National Assembly will approve the new constitution on Monday and that it will come into force on January 1, 2010. Here is the full text of the proposed Constitution in Hungarian.

School Board Reluctantly Bans Administrators From Sending Religious Messages To Employees

In Florence, South Carolina yesterday, the Florence School District 1 board unanimously but reluctantly banned administrators from sending religious messages to school employees.  According to SCNow, the interim superintendent and a school principal had been sending e-mail and memos containing religious messages, and sometimes overt proselytization, to school district employees. The e-mails included daily scriptures, bits of Christian theology and suggested hymns for times of stress. Americans United for Separation of Church and State had complained to the school board earlier this month about the situation.

Federal-State Court Judges In Utah Continue To Spar Over FLDS Trust

Tensions are growing between Utah state and federal courts over state attempts to reform the FLDS United Effort Plan Trust. As previously reported, the Utah Federal District Court held that the state had acted unconstitutionally in its five-years of proceedings and last week issued an preliminary injunction handing control of the Trust back to the FLDS Church. In response, state court Judge Denise Lindberg ordered special fiduciary Bruce Wisan to ignore the federal court order until the issues are sorted out on appeal. (See prior posting.) Now, in the latest development, the federal court yesterday issued an order (full text) requiring Judge Lindberg to appear on Monday to show cause why she should not be held in contempt for ignoring and countermanding the federal court's preliminary injunction. According to KCSG-TV News, originally the show cause hearing was scheduled for today (Friday), and when Judge Lindberg's attorney told federal judge Dee Benson that Lindberg would be in Arizona at her uncle's funeral, Benson suggested he might dispatch federal marshals to force Lindberg to appear before she left Utah.

Justice Department Joins Challenge To Jail's Policy On Religious Literature

The Justice Department announced Wednesday that it has filed a lawsuit against the Berkeley County, South Carolina sheriff's office, seeking to join a suit already filed by the ACLU challenging the mail policy at the Berkeley County Detention Center. The jail prohibits sending of any books, magazines or newspapers to inmates, except for copies of the Bible. (See prior posting.) The Justice Department alleges that the detention facility, in violation of RLUIPA, burdens inmates' practice of religion by denying them religious texts other than the Bible and violates the Establishment Clause by favoring the Bible over texts used in other religious traditions. The suit also claims more broadly that the ban on non-religious literature violates the 1st Amendment's free speech provisions.

7th Circuit: No Standing To Challenge National Day of Prayer

In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.

As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers."  The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.

Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted.  Williams wrote:

The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs..... 

In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.

11th Circuit En Banc Upholds City's Limits On Feeding Homeless In City Parks

In First Vagabonds Church of God v. City of Orlando, Florida, (11th Cir., April  12, 2011), the 11th Circuit Court of Appeals en banc upheld a municipal ordinance that limits the number of feedings of large groups that any person or political organization can sponsor in centrally located city parks in Orlando (FL). The court held that even if feeding the homeless is expressive conduct, the ordinance as applied to the organization Orlando Food Not Bombs is a reasonable time, place or manner regulation. A majority of the 3-judge panel in the case had held that feeding of the homeless here was not expressive conduct. (See prior posting.) The en banc court did not review other aspects of the 3-judge panel's decision, so the panel's rulings rejecting attacks on the ordinance under the free exercise, due process and equal protection clauses, and under the Florida Religious Freedom Restoration Act, were reinstated.

Second Lawsuit Against Georgia County Filed Over Zoning Denial For Churches

For the second time this year (see prior posting), a federal lawsuit has been filed against Coweta County, Georgia challenging its denial of a conditional use permit to a predominately African-American church. At issue in the latest suit is the county's refusal to allow Holy Is The Way Ministries to build a church on a rural tract of land it has contracted to purchase. The county Board of Commissioners denied the church's application, rejecting a recommendation of the Board of Zoning Appeals.  The complaint (full text) in Holiness Is The Way Ministries, Inc. v. Coweta County, Georgia, (ND GA, filed 4/13/2011), alleges violations of RLUIPA as well as numerous constitutional violations. Among other claims, plaintiffs charge that the provision in the county's zoning ordinance that calls for churches and other places of worship to obtain a conditional use permit to locate in areas zoned Rural Conservation is unconstitutional.  The complaint alleges that since this requires the county to analyze the content of speech and other expressive activity in order to determine whether a gathering is "a Church or other place of worship," this violates the 1st Amendment's protection of freedom of expression as well as the Establishment Clause. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Community College Board Settles Suit Challenging Prayers At School Ceremonies

A settlement has been reached between the South Orange County (CA) Community College District and plaintiffs challenging the practice of opening various official college events with prayer.  The agreement in Westphal v. Wagner, (CD CA, March 31, 2011), calls for an end to prayers at scholarship ceremonies and Chancellor's Opening Session at the community colleges involved. However commencement ceremonies will continue to feature either a non-sectarian prayer or moment of silence. Mission Viejo Patch reports on the agreement reached by the Community College District with Americans United for Separation of Church and State. Last May, the court had denied a preliminary injunction against invocations at graduation, and that ruling was being appealed to the 9th Circuit. (See prior posting.) A trial on the request for a permanent injunction was scheduled to start today, but the settlement led to its cancellation. [corrected]

Chicago Will No Longer Enforce Law Barring Church Picketing During Services

Tuesday's Chicago Sun-Times reports that the city of Chicago has stopped enforcing an ordinance (Chicago Municipal Code Sec. 8-4-010(j))  that bans demonstrations or picketing within 150 feet of a place of worship while services are being conducted and for one-half hour before and after services.  The city's law department has concluded that the ordinance is unconstitutional because it discriminates on the basis of subject matter by providing an exception for pickets involved in a labor dispute. The issue arose when, last year, the Church of Scientology, in order to prevent picketing, posted a sign at its headquarters stating that religious services are being held every day from 9:30 am to 10:00 pm. When anti-Scientology protesters were asked by police to leave, lawyer Alex Hageli refused in order to be cited and raise a challenge.  The alternative grounds relied upon by the law department avoids deciding the validity of Scientology's attempt to circumvent the law. Hageli was back last Saturday picketing the Scientology headquarters.

Kentucky Court Upholds Rejection of "In God We Trust" Specialty Plates

A Kentucky state trial court has upheld a decision by the Kentucky Transportation Cabinet  refusing to approve an "In God We Trust" specialty license plate that an anti-pornography group wanted issued to help it raise funds. XBIZ reported yesterday that the court denied the application by the group Reclaim Our Culture Kentuckiana (ROCK) for the specialty plate because the phrase 'In God We Trust' does not indicate to persons viewing the plate anything about the purpose of the plate's sponsor.  Meanwhile, the state has begun to make "In God We Trust" plates available as standard issue plates, rather than specialty plates. (See prior related posting.)

Lawsuit Alleges Retaliation For Complaint About Handling Of Accused Priest

Yesterday's Louisville Courier Journal reports on an interesting Kentucky state court lawsuit in which a former bookkeeper  for the Catholic Archdiocese of Louisville claims she was wrongfully fired from her position in retaliation for her complaining that Rev. James Schook, a priest accused of past sexual abuse ,was permitted to reside for several months without supervision at a local church where children were present.  Former bookkeeper Margie Weiter says that this violates Archdiocese policy.  The Archdiocese says it fired Weiter for budgetary reasons, and that it has the right to use discretion in preventing employees from making potentially defamatory statements about priests whose cases are still under investigation. It also seeks dismissal of the case, arguing that how it handled Schook is a matter of internal church discipline of clergy over which civil courts, under the First Amendment, have no jurisdiction.

State Department Serves Vatican With Court Papers On Behalf of Clergy Abuse Plaintiff

In a press release yesterday, plaintiffs' attorney in John Doe 16 v. Holy See, announced that the State Department had served process by diplomatic means on the Vatican in a lawsuit pending in a Wisconsin federal court charging the Pope and two high-ranking cardinals with covering up sexual abuse by a priest in the 1960's at a Catholic school for the deaf in Milwaukee, Wisconsin. (See prior posting.)  The summons and complaint was accompanied by a diplomatic note (full text) from the State Department to the Vatican. AP reports on developments. [Thanks to Religion News Service for the lead.]