Religion Clause

Tuesday, April 26, 2011

Former SG Resigns King and Spalding To Continue To Defend DOMA For Congress

After the Obama administration announced that it would no longer defend in court the constitutionality of the federal Defense of Marriage Act (see prior posting), the U.S. House of Representatives hired former Solicitor General, Paul Clement, to defend the statute on behalf of Congress. (See prior posting.) Clement was a partner in the Atlanta firm of King and Spalding. The National Law Journal yesterday reported that King and Spalding, under pressure from the Human Rights Campaign, has withdrawn from representing House Republicans. Clement resigned in protest, saying in part: “I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” (Full text of resignation letter via Politco), Clement plans to continue to represent Congress, joining the Washington, D.C. Bancroft law firm in order to do so. Meanwhile, according to Main Justice, Attorney General Eric Holder defended Clement, saying: “In taking on representing Congress in Connection with DOMA, I think he was doing that which lawyers do when we are at our best.”

Sunday, April 24, 2011

Wives' Damage Suits In Israeli Civil Courts Growing As Means To Obtain "Get"

Haaretz today reports on the increasing use of damage actions in civil courts in Israel by Orthodox Jewish women seeking to force recalcitrant husbands to grant them a religious divorce document ("get"). After a 2004 case in Jerusalem Family Court setting the precedent for such actions, the Center for Women's Justice filed claims on behalf of more than 40 women. In half the cases, the divorce was granted within 14 months. Lawsuits threatening large damage awards are seen by women as more effective than sanctions imposed by rabbinical courts to pressure husbands. Under Jewish religious law, a woman cannot remarry if her husband has not given her a divorce document.

Obama Attends Easter Services At Church Founded By Freed Slaves

AP reports that President Barack Obama and his family attended Easter services this morning at the historic Shiloh Baptist Church in Washington D.C. The church was founded in 1863 by 21 freed slaves who were able to come to D.C. from Fredericksburg, Virginia.

Pope's Easter Message Addresses Libya, Migrants To Europe

Pope Benedict XVI's Easter message today focused on a number of areas of political conflict around the world. AP reports that he called for diplomacy to prevail in Libya and urged European countries to accept migrants from Libya and elsewhere in North Africa. Meanwhile a basilica in Rome is serving as a haven for 150 Gypsies whose trailer settlements are being dismantled by the city.

Early Voting In D.C. This Afternoon As Alternative To Passover Voting On Tuesday

The District of Columbia has a special election scheduled for Tuesday for an at-large city council member and two school board members. Tuesday is also the eighth day of Passover on which observant Jews would not be able to vote. On April 13, D.C. Rabbi Shmuel Herzfeld sued the city seeking to have the election rescheduled or polls remain open until 10:00 p.m. on Tuesday so observant Jews could vote after sundown. (Washington Post). As described separately in the Washington Post by Rabbi Herzfeld, federal district judge Emmet Sullivan denied plaintiffs' request for a preliminary injunction, but admonished the election board for not on its own seeking an order to extend polling hours. Judge Sullivan suggested an alternative that has been adopted by the election board. (Press release). Early voting at one D.C. site will be available today from 12:30 p.m. to 5:30 p.m. Rabbi Herzfeld says he did not originally ask for that alternative because he did not want to burden others' observance of Easter. Absentee ballots ere available before April 19.

China Prevents House Church From Holding Outdoor Easter Service

In China today, police blocked worshipers from attending a planned outdoor Easter service at one of Beijing's largest "house" churches. House churches are Christian churches that are not registered with the government. CNN reports that police prevented 500 people from leaving their homes, and arrested 36 who attempted to attend the service that was scheduled by the Shouwang Church. The Church has been forced to hold its services outside since November when China blocked the rental of its previous office space. Shouwang Church leaders remain under house arrest as China has increased pressure on dissidents over the last three months. Hundreds of uniformed and plain clothes police surrounded the Church site today and prevented CNN journalists from entering.

Recent Prisoner Free Exercise Cases

In Allison v. Martin, 2011 U.S. Dist. LEXIS 41648 (ED MI, April 18, 2011), a Michigan federal district court refused to permit an inmate to file an amended complaint to add a new defendant and new allegations in his challenge to the denial of his request to be placed in the Kosher meal program and the refusal to give him religious materials.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 41542 (ED LA, April 15, 20110), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 41493, March 3, 2011) and permitted an inmate to proceed with claims that he is not allowed to practice his Santeria religion, to the extent that the claims are within the statute of limitations.

In Mubashshir v. Moore, 2011 U.S. Dist. LEXIS 42130 (N OH, April 19, 2011), an Ohio federal district court dismissed Muslim inmates' complaint regarding the lack of Halal food and denial of use of the chapel for services on two occasions.

In Eichler v. Tilton, 2011 U.S. Dist. LEXIS 41789 (ED CA, April 14, 2011), a California federal magistrate judge recommended dismissing an inmate's complaint alleging that he has been denied the ability to practice his anthroposophist religious beliefs.

In Rogers v. Giurbino, 2011 U.S. Dist. LEXIS 42679 (SD CA, April 20, 2011), a California federal district court dismissed an inmate's claim that he was not allowed to attend religious services.

In Vigil v. Jones, 2011 U.S. Dist. LEXIS 42589 (D CO, March 15, 2010), a Colorado federal magistrate judge recommended allowing an inmate to proceed with his claim that the practice of his "Judeo-Christianity" was burdened by prison authorities' refusal to permit him to participate in Christian and Jewish observances-- Communion, Ta'anit Esther, and the Passover Seder.

In Gause v. Vicklund, 2011 U.S. Dist. LEXIS 42967 (D AZ, April 14, 2011), an Arizona federal district court permitted an inmate to proceed with his lawsuit seeking a kosher diet.

In Cristee v. Norris, 2011 U.S. Dist. LEXIS 42971 (ED AR, March 22, 2011), an Arkansas federal magistrate judge recommended dismissing plaintiff's claim that participation in the Therapeutic Community program as a condition to his parole violates the Establishment and Free Exercise clauses.

In United States v. White, 2011 U.S. Dist. LEXIS 43438 (D KS, April 21, 2011), a Kansas federal district court rejected a motion by a criminal defendant who asked the court to amend the order committing him to prison to reflect his Muslim name that he adopted legally on the same day the court sentenced him. At sentencing, defendant did not the court of his pending name change.

Saturday, April 23, 2011

Mentioning God While Questioning High School Student Is Not Establishment Clause Violation

In Sabol v. Walter Payton College Preparatory High School, 2011 U.S. Dist. LEXIS 40765 (ND IL, April 12, 2011), an Illinois federal district court, while largely focusing on other issues, held that the Establishment Clause was not violated when a chaperone on a school-sponsored trip to China mentioned God while questioning a student about her unauthorized use of alcohol. Nor did the questioning violate the due proxess clause or the 5th Amendment.

Texas Governor Declares This Weekend As "Days of Prayer for Rain"

On Thursday, Texas Governor Rick Perry issued a Proclamation (full text) declaring April 22 to 24 as "Days of Prayer for Rain in the State of Texas." His proclamation recites that Texas is in the midst of an exceptional drought and explains:

Whereas, throughout our history, both as a state and as individuals, Texans have been strengthened, assured and lifted up through prayer; it seems right and fitting that the people of Texas should join together in prayer to humbly seek an end to this devastating drought and these dangerous wildfires.

Update On Pastor Terry Jones' Legal Proceedings In Dearborn, Michigan

As previously reported, Florida Christian pastor Terry Jones, and his associate, Pastor Wayne Sapp-- known for advocating and eventually carrying out a burning of the Qur'an-- yesterday faced a Dearborn, Michigan jury after prosecutors filed a complaint under MCL Sec. 772.1 et. seq. seeking to force them to post a peace bond before they demonstrated in front of Dearborn's largest mosque. The Detroit Free Press and WXYZ report that after a day-long trial Friday in which the jury found that their protest would create a breach of the peace, the judge ordered each defendant to post a $1 peace bond instead of the $45,000 that prosecutors had sought. The court also ordered them to stay off the property of the Mosque of America for the next three years. Initially both defendants refused to pay the $1 bond and they were led off to jail. However, as the Detroit Free Press reports in a later article, they subsequently changed their minds, paid the nominal bond, and returned to Florida. However, according to WJBK, they say they will return to Dearborn next Friday to protest at the City Hall to call attention to the deprivation of their 1st Amendment rights. Jones is also planning to file a lawsuit against the Wayne County prosecutor's office challenging his arrest. The Dearborn Press and Guide says that the Ann Arbor-based Thomas More Law Center is likely to represent Jones.

Friday, April 22, 2011

ACLU Survives Summary Judgment In Establishment Clause Suit Against Minnesota Charter School

In ACLU of Minnesota v. Tarek ibn Ziyad Academy, (D MN, April 20, 2011), a Minnesota federal district court rejected defendants' motion for summary judgment in the ACLU's Establishment Clause challenge to a state funded charter school. The court held:

Viewing the record in the light most favorable to Plaintiff, the Court determines that a reasonable juror could conclude that TiZA’s practices establish a pervasively sectarian atmosphere for the purpose of promoting Islam. In particular, a reasonable juror could conclude that TiZA was founded specifically to create a religious school and that elements of its operation have the primary principal effect of advancing the religion of Islam. Accordingly, the Court denies TiZA Defendants’ motion for summary judgment on Plaintiff’s Establishment Clause claims.

In the course of its opinion, the court also held that the Minnesota ACLU could bring the lawsuit despite its failure to make make required corporate filings in a timely manner; and that private parties have a right to assert challenges under the Establishment Clause of the Minnesota constitution. The court rejected various other challenges by defendants to the relief sought, holding in part that plaintiff can seek a refund to the state of a portion of state aid given to the school. Finally the court dismissed certain individual capacity claims and granted cross claims for indemnification by the Minnesota Commissioner of Education and the school; sponsoring organization. The St. Paul Pioneer Press reports on the decision. (See prior related posting.)

Florida Pastor To Stand Trial On Posting Bond Before Anti-Muslim Demonstration

At a hearing yesterday in Dearborn, Michigan, a state trial court ordered Florida pastor Terry Jones to either post a bond to cover costs that his Good Friday demonstration in front of a large Dearborn mosque will create, or else stand trial on Friday at which time a jury will determine whether Jones should be required to post bond. The Detroit Free Press reported yesterday that Jones-- who has gained notoriety from his church's burning of a Qur'an-- chose to stand trial. Jones says he is concerned that the Friday trial might interfere with the planned 5:00 pm demonstration. The Michigan ACLU says that the state is depriving Jones of his free speech rights by demanding a bond. (See prior related posting.)

Cert. Petition Filed In Utah Highway Patrol Memorials Case

A petition for certiorari (full text) in Davenport v. American Atheists, Inc. has been filed with the U.S. Supreme Court, according to a press release by Utah's attorney general. In the case, the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up on public land some 13 crosses, each 12 feet high, as memorials to Patrol members who were killed in the line of duty. (See prior posting.) The 10th Circuit refused en banc review with 4 judges filing 2 dissenting opinions. (See prior posting.) The cert. petition asserts: "a three-way circuit split has developed over the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause." ABC4 News reports that former Texas Solicitor General Ted Cruz will represent Utah in the case pro bono.

Nepalese Christians Seek Burial Grounds

According to Compass Direct News earlier this week, in Nepal a Christian group has filed a petition with the country's Supreme Court in an attempt to obtain burial grounds in Nepal for Christians. Up to now, Christians were allowed to use forested land belonging to a Hindu Temple for burials. However, earlier this month the Pashupati Area Development Trust (PADT) said it would no longer allow forest lands to be used. So a Christian pastor filed a petition asking the Supreme Court to intervene, and one judge ordered the government and the PADT to stop interfering with Christian use of forest land until the courts resolve the issues. But then a Hindu activist filed a counter-suit attempting to keep Christians from using Hindu Temple property for Christian burials. Meanwhile the recently formed Christian Burial Ground Prayer and National Struggle Committee began a relay hunger strike in Kathmandu asking for Christian cemeteries in all 75 districts of Nepal. The government has appointed a committee to look into the demand and to report back in two weeks.

Thursday, April 21, 2011

County's Denial of Permit For Nativity Scene On Road Median Upheld

In Satawa v. Board of County Road Commissioners of Macomb County, 2011 U.S. Dist. LEXIS 42196 (ED MI, April 19, 2011), a Michigan federal district court upheld Macomb County, Michigan's refusal to permit plaintiff to set up a nativity display on the median of a heavily traveled road. Plaintiff's family had erected the display at this site almost every year since 1945, but in 2008 the county for the first time received a complaint about it. The court concluded that the road median is not a traditional public forum, and that even if it is, the county had a compelling safety interest in banning the display. A church, a few hundred yards away, was available as an alternative site. The court also rejected plaintiff's Establishment Clause and equal protection arguments. (See prior related posting.)

Anti-Catholic Conversations Created Hostile Work Environment

In Haley v. Kopf, (AK St. Commn. Hum Rts., April 8, 2011), the Alaska State Commission for Human Rights awarded a former employee of a general store damages of $76,853 after finding that the store's owner violated AS 18.80.220(a)(1) by creating a hostile work environment based on religion. After Paul Kopf purchased Goldstream General Store, he began talking about religion extensively and made anti-Catholic statements to Lynn Dowler, a 27-year employee who was currently the store manger. She and three other employees resigned after receiving a new set of work rules from Kopf, one of which stated: "The OWNER of this BUSINESS is a very active CHRISTIAN who by nature of personality strives with lifetime goals to the benefit of humanity. The OWNER is by nature prone to religious and philosophic conversations. Anyone who thinks they can WEAR their religion/ philosophy/ ideology/ expression of who they are and does not want to hear someone else's said state of being will be considered hypocritical and incompatible with the group...." AP reports on the decision.

Free Exercise Challenge To Kansas Medicaid Rules Argued

The Kansas City Star reports on an interesting free exercise challenge to Kansas' Medicaid rules argued in the Kansas Court of Appeals on Tuesday. Mary Stinemetz, a Jehovah's Witness, needs a liver transplant. Kansas will pay for the surgery if performed at the University of Kansas Hospital. However, Stinemetz, for religious reasons, insists on transplant surgery without any blood transfusion-- a procedure which is available in an Omaha, Nebraska hospital, but not in Kansas. State Medicaid rules pay for out-of-state treatment only when it is "medically necessary." Kansas officials say that the patient's religious objections to blood transfusions do not amount to medical necessity.

New Arizona Law Exempts Churches From Political Committee Registration

On Monday, Arizona Governor Jan Brewer signed S.B. 1282 that provides no religious assembly or institution will be required to register as a political committee, so long as it does not spend a substantial amount of time or assets influencing legislation, or any referendum, initiative or constitutional amendment. The American Independent reported Monday that the new law is aimed at assuring-- as required by 9th Circuit precedent-- that campaign finance laws do not apply to speech by churches on issues of public importance that appear on the election ballot. A 2009 case decided by the 9th Circuit invalidated application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a constitutional initiative banning same-sex marriage. (See prior posting.)

Appeals Court Defers To Church Synod In Dispute Over Church Closing

In Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Meena, (PA Commonwealth Ct., April 18, 2011), a Pennsylvania appellate court, in a 6-2 decision written by Judge Pellegrini, held that it must defer to the decision of the governing Synod to impose synodical administration on a local church and close it because of its diminished attendance and income. Judge Leavitt, joined by Judge McCullough dissented arguing that the case should be remanded for the trial court to determine, under neutral principles of Pennsylvania corporate law, whether the bylaw of the Synod that authorized it to take control of the local church is inconsistent with the Synod's Charter.