Court Denies TRO In Establishment Clause Challenge To Tennessee School System Practices

In ACLU-TN v. Sumner County Board of Education, 2011 U.S. Dist. LEXIS 47977 (MD TN, May 3, 2011), a Tennessee federal district court rejected the ACLU's emergency motion for a temporary restraining order in a case alleging that the Sumner County schools violate the Establishment Clause by a series of practices that promote and endorse religion. (See prior posting.) The court found that the only imminent activity posing an issue is a day-long Teens Against Alcohol and Tobacco Use program for 6th graders scheduled to be held in a Baptist church. The court concluded that this program has a secular purpose and that there are no religious symbols or imagery in the room of the church that will be used for this particular program.

Recent Articles and Book Of Interest

From SSRN:

• Mark Koyama, The Political Economy of Expulsion: The Regulation of Jewish Moneylending in Medieval England, (Constitutional Political Economy, Vol. 21, No. 4, pp. 374-406, 2010).
• Christopher J. Eberle and Capt. Rick Rubel, Religious Conviction in the Profession of Arms, (June 15, 2010).
• Muhammad Munir, Compatibility between Anti-Terrorism Legislation and Shari‛a, (May 1, 2011).
• Sahir F. Aziz, Caught in a Preventive Dragnet 10 Years Later: Selective Counterterrorism Against Muslims, Arabs, and South Asians, (The Journal of Race/Ethnicity: Multidisciplinary Global Contexts, Forthcoming).
• Clark B. Lombardi, Can Islamizing a Legal System Ever Help Promote Liberal Democracy?: A View from Pakistan, (University of St. Thomas Law Journal, Vol. 7, No. 3, 2010).
• Steven D., Jamar Religious Use of Copyrighted Works after Smith, RFRA, and Eldred, (Cardozo Law Review, Vol. 32, No. 5).
• Linda C. McClain, Religious and Political Virtues and Values in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society, (Cardozo Law Review, Vol. 32, No. 5, pp. 1959-2007, 2011).

From SmartCILP and Alliance Alert:

• Kenneth B. Orenbach, The Religiously Distinct Director: Infusing Judeo-Christian Business Ethics into Corporate Governance, 2 Charlotte Law Review 369-443 (2010).
• Jessica L. Thornhill, Clear As Mud: Pleasant Grove City V. Summum And Riding The Undefined Line Between Government Speech And Private Speech In A Public Forum, 30 Mississippi College Law Review 121 (2011).

Recent Book:

• Douglas Laycock, Religious Liberty, Volume Two: The Free Exercise Clause, (Eerdmans, April 15, 2011), described in press release.

Jesuit Priest To Be Next House Chaplain

According to AP and a Roll Call reports last Friday, House Speaker John Boehner will nominate a Catholic priest who teaches at a Jesuit high school in Portland, Oregon to be the next Chaplain of the House of Representatives.  The choice was made in consultation with House Minority Leader Nancy Pelosi.  Rev. Patrick J. Conroy wll become the second Catholic priest to serve as House chaplain, succeeding Fr. Daniel Coughlin who retired last month. The full House of Representatives will vote on the nomination later this month.  Conroy previously served as chaplain at Georgetown University. [Thanks to Alliance Alert for the lead.]

Britain's Religion or Belief Regulations Extended To Belief In Higher Purpose of Public Service Broadcasting

Britain's Employment Equality (Religion or Belief) Regulations 2003 (Sec. 2) include "philosophical belief" in the definition of religion or belief. Employment Tribunals continue to expand the meaning of philosophical belief.  Previous cases have invoked the provision to bar discrimination on the basis of an employee's anti-hunting views, or an employee's belief in man-made climate change. Now, according to today's London Mail, a Birmingham employment tribunal has held that a BBC employee's belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion is also a philosophical belief protected by the Equality Regulations.

Attorney General Tells Immigration Appeals Board To Reconsider Deportation of Partner In Civil Union

In Matter of Paul Wilson Dorman, (Atty. Gen., April 26, 2011), Attorney General Eric Holder vacated a decision of the Board of Immigration Appeal that had upheld the deportation of a man who had entered a same-sex civil union in New Jersey with a U.S. citizen. Holder, implementing the Administration's previously announced conclusion that the Defense of Marriage Act is unconstitutional (see prior posting), ordered the BIA to:

determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act....

AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Excercise Cases

In Jihad v. Fabian, 2011 U.S. Dist. LEXIS 47007 (D MN, May 2, 2011), a Minnesota federal district court dismissed a Muslim inmate's complaints that he was not permitted to pray outside of his cell, that religious groups are permitted only one special holiday meal per year, that he could wear only state-issued headwear rather than his kufi outside his cell and the chapel, that an outside volunteer must be present at all religious services and that religious services are cancelled on public holidays. The court held, however, that sufficient factual issues remain for plaintiff to move ahead on his challenge to the refusal to provide him with halal meals. The magistrate's recommendations in the case are at 2011 U.S. Dist. LEXIS 46930, February 17, 2011.

In Blount v. Wright, 2011 U.S. Dist. LEXIS 46543 (WD VA April 28, 2011), a Virginia federal district court rejected a free exercise and RLUIPA claim by an inmate who alleged that he was forced to eat non-kosher diet loafs for a week after he was falsely charged with disobeying a direct order regarding return of his lunch tray.

In Porter v. Wegman, 2011 U.S. Dist. LEXIS 46660 (ED CA, April 22, 2011), a California federal magistrate judge dismissed, with leave to amend, claims by a member of the House of Yaweh that authorities failed to respond to their request for meals to observe Passover and Feast of Unleavened Bread. He also complained he was placed on the vegetarian, rather than kosher, diet.

In E.W. v. New Jersey Department of Corrections, 2011 N.J. Super. Unpub. LEXIS 1104 (NJ App., May 3, 2011), a New Jersey state appellate court concluded that Department of Corrections programs are now wholly secular.  The Department had removed a satellite dish that had been given to it by Jehovah's Witnessses and had removed religious content from its treatment materials.

In Blaylock v. Guarini, 2011 U.S. Dist. LEXIS 47576 (ED PA, May 4, 2011), a Pennsylvania federal district court dismissed a Muslim inmate's claims challenging the amount of food served to break the Ramadan fast, threats to cancel Ramadan services because inmates were not attending, shortening of Jum'ah services and the serving to Muslim inmates of cereal bars that contained pork products at the prison where he was formerly incarcerated.

In Bodie v. Tipten, 2011 U.S. Dist. LEXIS 47466 (D AZ, April 27, 2011), an Arizona federal district court permitted a Navajo inmate to proceed with his complaint that his rights under the 1st Amendment and RLUIPA were violated when officials interfered with his attempt to keep his hair that falls out to send to his niece for it to be burned with medicinal herbs according to Navajo religious traditions.

In Budge v. Arpaio, 2011 U.S. Dist. LEXIS 47470 (D AZ, April 26, 2011), an Arizona federal district court dismissed an inmate's claim that he was denied religious services on several occassions and was denied doctor-approved religious meals.

190 Face Military Trials In Egypt After Deadly Muslim-Coptic Violence

In Egypt, 190 people have been detained and will face military trials in Egypt's Supreme Military Court after Muslim-Christian violence in Cairo killed 10 and wounded 186. BBC News reports that the violence began after several hundred Salafist Muslims gathered outside the Coptic Christian Saint Mena Church to protest a rumor that a Christian woman was being held there against her will because she had married a Muslim man and wanted to convert. After a repelled attempt earlier in the day to storm the church, Saint Mena's and another church along with some homes were set on fire. Gunfire was also heard.  A statement by Egypt's Supreme Military Council said that a committee will assess the damage and restore the damaged property.  The Council, in a statement published on its Facebook page, warned of severe dangers facing the country during the current transition period.

DHS Investigating Border Agents' Treatment of Muslims

In response to complaints filed in March with the Department of Justice and Department of Homeland Security, the DHS office of Civil Rights and Civil Liberties is conducting an investigation into the conduct of federal agents at several at several US-Canada border crossings in Michagan.  According to the Detroit Free Press on Saturday, allegations cover mistreatment of Muslims because of their background or appearance. Complaints include "repeated handcuffing, brandishing of weapons, prolonged detentions, invasive and humiliating body searches at the border, and inappropriate questioning that pertains to religion and religious practices."

Men In Muslim Dress Pulled From Flight; Delayed In Reaching Conference On Anti-Islam Bias

Two men wearing traditional Muslim clothing were pulled off an Atlantic Southeast Airlines flight from Memphis (TN) to Charlotte (NC) on Friday for re-screening after the pilot was uncomfortable with their being on board. The Christian Science Monitor reports that the two-- an adjunct professor of Arabic at the University of Memphis and an imam at the Islamic Association of Greater Memphis-- ironically were on their way to a conference on Islamophobia and anti-Muslim bias. They were ultimately delayed nine hours after their plane, which had already left the gate, returned and the men were refused reboarding even after their second screening.

Florida Legislature Submits Repeal of Blaine Amendment To Voters

On Friday, the Florida state Senate passed HJR 1471-- a joint resolution previously passed by the state House of Representatives that will submit to voters next year a proposal to repeal the state constitution's Blaine Amendment. The Blaine Amendment currently bars state financial support of any religious denomination or institution.  The proposed amendment will remove the current language from Florida's Constitution and will add the following:

Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any individual or entity the benefits of any program, funding, or other support on the basis of religious identity or belief.

HJR 1471 (full text) includes 3 pages of "Whereas" clauses that, among other things, trace the original Blaine Amendment to anti-Catholic bigotry and lament the restictions now imposed on state funds going to religiously affiliated hospitals, schools and adoption agencies. The Miami Herald reports on the legislature's action. [Thanks to David L. Barkey for the lead.]

Group Opposes USAID's Proposed Expansion of Funding For Religious Structures

As Monday's deadline for comments approaches, the Anti-Defamation League announced that yesterday it had submitted a letter (full text) in opposition to a little-noticed proposal issued by by the U.S. Agency for International Development in March.  The proposal on Participation by Religious Organizations in USAID Programs would expand the extent to which US AID funds could be used for the acquisition, construction or rehabilitation of buildings that are devoted to inherently religious activities.  The existing rule, among other things, bars use of AID funds for sanctuaries or chapels that a recipient organization uses as its principal place of worship.  The proposed amendment provides that:

USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities so long as the program ... has a secular purpose, is made generally available to a wide range of organizations and beneficiaries which are defined without reference to religion, has the effect of furthering a development objective, the criteria upon which structures are selected ... are religiously neutral, and the selection criteria are amenable to neutral application. Examples ... include ... rehabilitation or reconstruction programs ... following a natural or manmade disaster; rehabilitation or reconstruction programs for schools; rehabilitation or reconstruction of structures that are architectural, artistic, cultural, or historical landmarks for cultural or historical preservation; and rehabilitation or reconstruction programs to promote tourism or other related economic activities.

The ADL comments raised concerns that the proposed rule could lead to extensive federal funds being used to build houses of worship. [Thanks to Michael Lieberman for the lead.]

Neutral Principles Approach Allows Court To Hear Various Claims Against Methodist Annual Conference

In Beach v. Budd, (MN App., May 3, 2011), Samantha Beach, a  parishioner at a Minnesota Methodist church, sued Donald Budd, the church's pastor, and the Minnesota Annual Conference that controls the church and employed Budd. Plaintiff's claims grew out of sexual contact that Budd had with Beach at the same time he was counseling her. This opinion involved an interlocutory appeal by the Conference challenging the court's jurisdiction on 1st Amendment grounds, alleging that the court would become excessively entangled with religious matters. The court held first that:

The Establishment Clause’s prohibition against government entanglement with religion does not deprive the district court of subject-matter jurisdiction over Beach’s negligent-retention, negligent-supervision and sexual-exploitation claims because such claims can be resolved according to neutral principles of law.

The court, however, held that Beach's negligent investigation claim should be dismissed because the Conference "owed no duty to protect Beach or to investigate her complaint apart from its obligations as Budd's employer."

Settlement Leads To Dropping of Trespass Charges Against 2009 Pro-Life Notre Dame Demonstrators

In a press release yesterday, the Thomas More Society reported that an agreement has been reached between Notre Dame University and the so called "ND88"-- pro-life protesters who were arrested in 2009 for demonstrating on campus against the University's presenting an honorary degree to President Obama.  Pursuant to the agreement, the St. Joseph, Indiana county prosecutor has dropped criminal trespassing charges against almost all those who had been charged in the incident. (See prior related posting.) The release says, in part: "both parties have pledged not to rehash the events of the past, but on the contrary, to recognize each other's pro-life efforts and to work together to find ways to increase those efforts and maximize their impact on the nation’s contentious, ongoing debate over abortion policy."

Break-Away California Anglican Congregation Can Still Assert Its Defenses In Property Dispute

In Rasmussen v. Superior Court of Orange County, (CA Sup. Ct., May 5, 2011), the California Supreme Court in a 6-1 decision held that its prior decision in a property ownership dispute between a break-away congregation-- St. James Anglican Church-- and  the national Episcopal Church still left questions for the trial court to settle. In a 2009 decision (see prior posting), the state Supreme Court held that the suit was not subject to an anti-SLAPP motion to strike and that property ownership should be resolved applying neutral principles of law if the property dispute does not involve a matter of religious doctrine. In its most recent decision, the court held that the congregation must be given an opportunity to answer the complaint so the trial court can consider the significance of a 1991 letter from the bishop of the diocese on which St. James relies to show its ownership. Virtue Online reports on the decision and gives additional background.

Georgia Judge Bars Kufi From Being Worn In Courtroom

AP reported yesterday that a Georgia state trial court judge has refused three separate times to permit a Muslim man, Troy "Tariq" Montgomery, from entering the courtroom to dispute a traffic ticket because Montgomery was wearing a kufi. Henry County judge James Chafin took the action even though a policy adopted in 2009 by the state's Judicial Council allows head coverings in court when they are worn for medical or religious reasons. (See prior posting.)

Syrian Christians Reportedly Being Pressured To Join Anti-Assad Demonstrations

The group International Christian Concern says that Christians in Syria are being pressured to join the protests against President Bashir Assad, or else leave the country. A report carried by Christian Today on May 5 says that Syrian Christians have not participated in the anti-Assad protests so far because they fear a takeover by Muslim Salafis who will attempt to drive Christians out of the country.

Illinois Catholic Adoption Agencies Concerned About Impact of Civil Union Law

At a press conference in Springfield, Illinois, Catholic Charities said there is a possibility that it will halt its adoption and foster care services if Illinois law requires them to place children with same-sex couples.  The issue arises because of the June 1 effective date of Illinois' civil union law.  Carmi Times reported yesterday that Catholic social service groups place children only with married couples and single individuals -- not with unmarried couples. They continue to consider couples who have had a civil union as unmarried. However the civil union law provides that parties to a civil union are entitled to the same legal benefits as married couples. Catholic Charities is urging the state legislature to pass legislation making it clear that it can refer gay couples to other organizations for adoption or foster care services.

6th Circuit: Seventh Day Adventist Vocational School Students Are Not "Employees" Under FLSA

In Solis v. Laurelbrook Sanitarium and School, Inc., (6th Cir., April 28, 2011), the U.S. 6th Circuit Court of Appeals held that student trainees in a Seventh Day Adventist vocational boarding school are not employees for purposes of the federal Fair Labor Standards Act. High school students spend four hours each day, without pay, as part of their training working in the kitchen and housekeeping departments of Laurelbrook Sanitarium, an intermediate care nursing home that is an integral part of the school's facility. Students in the Certified Nursing Assistant program may be assigned to provide medical assistance to patients. Applying the "primary benefit" test, the court concluded that the district court was correct in concluding that "[a]lthough there is benefit to the school and sanitarium from the students’ activities, the totality of the circumstances shows that the primary benefit is to the students, who learn practical skills about work, responsibility, and the dignity of manual labor in a way consistent with the religious mission of their school." Courthouse News Service reports on the decision.

Medicaid Denial of Bloodless Liver Transplant Violates Free Exercise Rights of Jehovah's Witness

In Stinemetz v. Kansas Health Policy Authority, (KS App., May 4, 2011), a Kansas state appellate court held that the Kansas agency administering the state's Medicaid program violated the free exercise rights of a Jehovah's Witness when it refused, for lack of medical necessity, to authorize coverage of an out-of-state liver transplant using a method that does not involve blood transfusions.  Jehovah's Witnesses object on religious grounds to transfusions. The bloodless technique, not available in Kansas, is less expensive that an in-state procedure involving transfusions that KHPA was willing to fund. The court held:

There is nothing in the language of K.A.R. 30-5-70(c)(2) or any of the Kansas Medicaid regulations to indicate that the regulations either were enacted or are enforced in such a way as to target Jehovah's Witnesses. The regulations are neutral and of general applicability, but the regulations have the incidental effect of burdening Stinemetz' particular religious beliefs. Under the Employment v. Smith test, enforcement of the Kansas Medicaid regulations need not be justified by a compelling governmental interest to avoid violating Stinemetz' rights under the Free Exercise Clause of the First Amendment.

But even the Employment v. Smith test carves out an "individual exemption exception." .... Because the Kansas Medicaid regulations allow for an individual exemption on a case-by-case basis in defining medical necessity, the KHPA cannot refuse to extend that exemption to cover Stinemetz' religious hardship without providing a compelling reason. Here, the KHPA has failed to suggest any state interest, much less a compelling interest....

Stinemetz has even greater protections ... under § 7 of the Kansas Constitution Bill of Rights.... To determine whether government action violates an individual's right to the free exercise of religious beliefs under the Kansas Constitution, a court must determine: (1) whether the individual's religious beliefs are sincerely held; (2) whether the state action burdens the individual's free exercise of religious beliefs; (3) whether the state interest is overriding or compelling; and (4) whether the State uses the least restrictive means of achieving its interest.... [T]he KHPA's denial of Stinemetz' request for prior authorization for the out-of-state liver transplant violated her rights under § 7 of the Kansas Constitution Bill of Rights.

Yesterday's Topeka (KA) Capital-Journal reported on the decision. (See prior related posting).

May Is Jewish American Heritage Month

Last week, President Barack Obama issued a Proclamation (full text) declaring May to be Jewish American Heritage Month. The Proclamation reads in part:

The Jewish story is intertwined with the American story one of overcoming great hardship, and one of commitment to building a more just world. This month, we embrace and celebrate the vast contributions Jewish Americans have made to our country....

This month, we remember that the history and unique identity of Jewish Americans is part of the grand narrative of our country, forged in the friendships and shared wisdom between people of different faiths.

The Library of Congress, the National Archives, the NEH, the National Gallery of Art, the National Park Service and the U.S. Holocaust Memorial Museum have jointly set up a Jewish American Heritage Month website that links to extensive resources on the Jewish American experience.