L.A. Freeway Project Creates Challenge For Maintaining Eruv

Today's Los Angeles Times reports on the cooperation between highway construction personnel and the Los Angeles Jewish community in dealing with the unusual problems posed by the widening of the 405 Freeway.  The western boundary of the large eruv in Los Angeles is this freeway. (Map of eruv.) An eruv is a symbolic enclosure of an area that permits observant Jews within it to carry items on the Sabbath.  Much of the eruv consists of freeway fences or the freeway itself. However freeway widening has resulted in numerous breaches in fences and freeway walls-- all of which volunteers who maintain the eruv must keep track of and replace by, for example, stringing fishing line on 15-foot poles.

More Recent Prisoner Free Exercise Cases

In Hall v. Ekpe, (2d Cir., July 1, 2011), the Second Circuit dismissed RLUIPA claims by a Muslim prisoner who who was excluded from Ramadan activities because the prison chaplain did not identify him as an observant Muslim.  The court held that damage claims in plaintiff's official capacity lawsuit were precluded by a recent U.S. Supreme Court decision, and damages in his individual capacity claims were precluded by defendants' qualified immunity.

In Taylor v. Louisiana Correctional Service, Inc., 2011 U.S. Dist. LEXIS 69389 (WD LA, June 28, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist LEXIS 69400, May 17, 2011), rejecting a claim that the lack of a Muslim chaplain in a prison violated plaintiff's free exercise rights and his rights under RLUIPA.

In Hampton v. Ayers, 2011 U.S. Dist. LEXIS 69792 (CD CA, June 28, 2011), a California federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 69742, June 2, 2011) and dismissed an inmate's claims that various correctional officials burdened the practice of his religion by allowing Muslim inmates to hold religious services only if they are supervised and then failing to provide supervision. He also objected to an instance in which officers interfered with a religious service in progress.

In Carter v. Lappin, 2011 U.S. Dist. LEXIS 70300 (D AR, June 1, 2011), an Arkansas federal magistrate judge dismissed claims brought against the director of prisons claiming that on one occasion lower ranking  prison officials had served sausage containing pork to inmates without identifying it as such.  Mistakenly eating this violated plaintiff's religious beliefs.

In Blakely v. Wards, 2011 U.S. Dist. LEXIS 70280 (D SC, May 20, 2011), a South Carolina federal magistrate judge recommended dismissing a Muslim inmate's claims that prison chaplains have discriminated against Muslims by giving Christian inmates more access to the prison chapel. He also alleged disparities between the Christian and Muslim inmates as to food, religious books, goods, and money.

Recent Articles of Interest

From SSRN:

• Sarah Beresford, Seeking Secularism: Resisting Religiosity in Marriage and Divorce- A Comparative Study of England and America, (Web JCLI, Vol. 3, 2011).
• Girjesh Shukla, Law, Religion and State: Constitutional Discourse and Judicial Interpretation, (2011).
• Howard Kislowicz, Richard Haigh and Adrienne Ng, Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom, (Alberta Law Review, Vol. 48, No. 3, 2011).
• David Bilchitz, Should Religious Associations Be Entitled to Discriminate?, (South African Journal of Human Rights, Vol. 2, 2011).
• Mariana Ardila Trujillo, Hacia La Resolución De Los Conflictos Entre La Protección De La Diversidad Cultural Y El Reconocimiento De Los Derechos De Las Mujeres (Toward the Conflict’s Resolution between the Protection of the Cultural Diversity and the Recognition of the Women´s Rights), (Revista Derecho del Estado, No. 26, 2011).
• Alejandro Rosas Martinez, Algunas Implicaciones Jurídicas Del Matrimonio Entre Personas Del Mismo Sexo En La Ciudad De México (Some Juridical Implications of the Same Sex Persons Marriage at México City), (Revista Derecho del Estado, No. 26, 2011).
• Sara Weinrib, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson Colony, (McGill Law Journal, Vol. 56, No. 3, pp. 719-750, 2011).
• Mark Strasser, Same-Sex Marriage and the Right to Privacy, (Journal of Law and Family Studies, Vol. 13, pp. 117-150, 2011).
• Wladimyr Mattos Albano, The Constitutional Immunity to Temples of Any Cult in the Municipalities and Their Interpretation, (Revista Brasileira de Direito Tributário e Finanças Públicas, Vol. 4, No. 22, p. 25, 2010).

From bepress:

• Anke I. Bouzenita, The Principle of Neutrality and “Islamic International Law” (Siyar), Global Jurist: Vol. 11: Iss. 1 (Advances), Article 4 (2011).

From SmartCILP:

• Barbara Oomen, Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands, [Abstract], 33 Human Rights Quarterly 175-200 (2011).
• Frederick V. Perry, The Corporate Governance of Islamic Banks: A Better Way of Doing Business?, 19 Michigan State Journal of International Law 251-277 (2011).

Recent Prisoner Free Exercise Cases

In Ayotte v. McPeek, 2011 U.S. Dist. LEXIS 67913 (D CO, June 24, 2010), a Colorado federal district court held that an inmate's exercise of his religious beliefs was not substantially burdened by delay in maintaining his hearing aids and in not providing sign language interpreters at two Catholic religious studies classes he attended.

In Avery v. Thompson, 2011 U.S. Dist. LEXIS 68100 (ND CA, June 24, 2011), a California federal district court rejected both plaintiff's and defendants' motions for summary judgment in a suit challenging prison official's confiscation of 265 pamphlets from an inmate who says he is a believer in the Wotanism faith. Prison officials claim the pamphlets are neo-Nazi literature. The court referred the case to the Pro Se Prisoner Settlement Program.

In Jackson v. St. Laweence, 2011 U.S. Dist. LEXIS 68860, (SD GA, June 27, 2011), a Muslim inmate
sought an injunction requiring the jail to provide a separate Muslim unit similar to two Christian Dorm units; an area for Muslims to offer their obligatory five Salat prayers daily; an extra blanket for prayer and towel to cover the urinal for Muslims; and a place for Friday Al Jumu'ah prayers. He also sought $2 million in damages. A Georgia federal magistrate judge dismissed plaintiff's pain and suffering damage claim but permitted him to move ahead with the remainder of his claims. However the court also required plaintiff to pay filing fees on an installment basis from his prison account.

In Newberg v. Geo Group, Inc., 2011 U.S. Dist. LEXIS 68955 (MD FL, June 27, 2011), a Florida federal district court dismissed as moot claims by a follower of a Native American religion regarding restrictions at a civil commitment center that previously prevented the sacred pipe ceremony and smudging.  The court rejected plaintiff's challenge to the lack of a sweat lodge and fire pit.

In Lee v. Johnson, 2011 U.S. Dist. LEXIS 69509 (WD VA, June 28, 2011), a Virginia federal district court   rejected a challenge by an inmate who belonged to the House of Yahweh faith to prison rules that allowed group worship only if there are at least 5 inmates who express an interest in congregate services.  The court also rejected other claims against the prison chaplain for failing to procure House of Yahweh religious material and failing to post a sign-up sheet for House of Yahweh services.

In Kwanzaa v. Mee, 2011 U.S. Dist. LEXIS 69531 (D NJ, June 28, 2011), a New Jersey federal district court dismissed free exercise claims by a Muslim inmate who alleged that during Ramadan, he did not receive the same 2200 calorie diet that non-Muslims received, that on two dates he was hindered from calling the Islamic call to prayer and that corrections officers referred to him by his birth name instead of his religious name.

In Christensen v. Schwarzenegger, 2011 U.S. Dist. LEXIS 69209 (ED CA, June 27, 2011), a California federal magistrate judge dismissed, with leave to file an amended complaint, a claim that prison officials failed to provide Wiccan inmates with appropriate religious space for their worship services. Plaintiff failed to connect the named defendants to the claimed free exercise violations.

Sex Offender Registration Law Does Not Infringe Free Exercise Rights

In Doe v. Virginia Department of State Police, 2011 U.S. Dist. LEXIS 68939 (ED VA, June 27, 2011), a Virginia federal district court rejected a free exercise claim brought by a woman who was required by state law to register as a sex offender.  Under the law, a registered sex offender needs to obtain special permission in order to enter premises that house young children-- including churches with adjoining daycares.  The court concluded, however, that this is not a free exercise violation since the registration law is neutral and generally applicable and these collateral effects on church attendance were not the purpose of the registration law.

Philippine Officials Suggest Government Lottery Donations To Catholic Church Were Unconstitutional

This week end, the Philippine Star, the Manila Sun Star, and the Philippine Daily Inquirer are all reporting on disclosures by new management of the Philippine Charity Sweepstakes Office that six Catholic dioceses and another Catholic organization in 2008 and 2009 received the equivalent of over $175,000 (US) from the government-run lottery agency that supports health and general welfare activities. The Philippine House of Representatives is planning hearings to determine if the grants violate provisions of the Philippine Constitution that call for the separation of church and state (Art. I, Sec. 5) and that ban the use of government funds to benefit any religious organization (Art. VI, Sec. 29). The funds were allegedly used to buy SUV's-- Mitsubishi Pajeros-- for bishops of each of the seven recipients. The SUVs are apparently used in church-run medical and relief operations serving outlying areas. Today's Manila Bulletin quotes 4 bishops who say their vehicles did not come from PCSO funds. At least one bishop has suggested that the government may be targeting the Catholic Church because of its strong opposition to the Philippines' controversial reproductive health bill.

Iran's Supreme Court Upholds Death Penalty In Apostasy Case [UPDATE: Report Contradicted]

According to a report on Friday by AKI, Iran's Supreme Court has upheld the death sentence imposed on Christian priest Yousef Nadarkhani who was convicted last December on apostasy charges-- converting from Islam to another religion.  Nadarkhani was born to a Muslim family but denies he was ever a Muslim. He was arrested in October 2009 while attempting to register his evangelical church in the city of Rasht.

UPDATE: A July 4 report by Christian News Today contradicts the AKI report and says that the Supreme Court overturned Nadarkhani's death sentence. See this posting for more details.

Suit Challenges Indiana School Voucher Program

On Friday, a group of 12 plaintiffs filed suit in an Indiana state court to challenge Indiana's recently enacted Choice Scholarship program that will provide vouchers to students from families whose income does not exceed 150% of the amount to qualify for the federal free lunch program. Numbers of participants are limited in the first two years.  AP reports that the plaintiffs challenging the law include a former Indiana State School Board of Education member, a public school teacher, and a retired minister who is the father of a federal appeals judge.  The suit contends that the program violates state constitutional provisions that bar the use of tax funds for religious institutions and which require a general and uniform system of common schools.Most of the 352 private schools where vouchers can be used are affiliated with churches or other religious institutions.

San Francisco City Attorney's Office Says Narrow Circumcision Ban Would Be Unocnstitutional

As previously reported, a lawsuit was filed in state court in California last month by Jewish and Muslim families and two doctors attempting to prevent a proposed ban on circumcision from appearing on the November ballot in San Francisco. The lawsuit argues that the city ordinance would be pre-empted by state law that bans cities from regulating state-licensed physicians.  Now, responding to the lawsuit, the Office of the San Francisco City Attorney announced that it has filed a brief with the court contending that if the plaintiffs prevail, the resulting ordinance that would apply only to religious circumcisions performed by non-physicians will be unconstitutional. Chief Deputy City Attorney Therese Stewart said:

Especially in light of disturbing campaign materials that evoke the ugliest kind of anti-Semitic propaganda, the City has an obligation to petition the Court to remove the measure from the ballot in its entirety if it is preempted as applied to medical professionals. San Franciscans cannot be asked to vote on whether to prohibit religious minorities from engaging in a particular religious practice, when the same practice may be performed under non-religious auspices.

Police Enforcement of Trespass Notice Against Pastor Is Not Free Exercise Violation

Spanish Church of God of Holyoke v. Scott, 2011 U.S. Dist. LEXIS 70187 (D MA, June 20, 2011), involves a lawsuit against the city of Holyoke, Massachusetts and its police chief by a local congregation, the Spanish Church of God; its clergyman, Bishop Juan Garcia; and the parent organization of the congregation, Church of God International, Inc.  Some church members disagreed with the appointment of Garcia as interim pastor, and this led to heated discussions between Garcia and them. The church's board of directors-- or at least persons claiming to be the board-- had their attorney issue a Notice of Trespass to Garcia. One day later, a member of the board called Holyoke police complaining that Garcia was trespassing. Police responded to the call, but ultimately took no action because they decided that the matter was a civil dispute to be resolved between the parties.  However plaintiffs sued claiming that the city and the police chief violated their free exercise rights by enforcing the Notice of Trespass. They contended that police were required to honor the determination by the church's parent body that Garcia was to be its pastor.  The court held, however, that "Chief Scott, in enforcing a valid trespass notice, did not encroach on the protections afforded religious institutions with regard to internal organizational disputes."

Delaware County Sued Over Lord's Prayer At Council Meetings

In Sussex County, Delaware on Thursday, four county residents filed a federal lawsuit against the county council and its president challenging the practice of consistently opening Council meetings with the recitation of the Lord's Prayer.  The complaint (full text) in Mullin v. Sussex County, Delaware, (D DE, filed 6/30/2011), alleges that the practice violates the Establishment Clause of the U.S. Constitution as well as the "no preference" clause of Delaware's constitution.  Americans United issued a press release announcing the filing of the law suit. [Thanks to Don Byrd for the lead.]

Settlement Reached In Long-Running Santa Rosa Florida School Consent Decree Challenge

A settlement agreement was reached today in the long-running litigation challenging the consent decree that the Santa Rosa County (Florida) School District agreed to in litigation against it challenging religious practices in the schools. (See prior postings 1 and 2)  A Settlement Agreement, Waiver and Release (full text) along with a proposed modified consent decree (full text with changes marked) were filed with the court today in Allen v. School Board for Santa Rosa County, Florida, (ND FL, filed 7/1/2011). The numerous changes clarify, and in some cases narrow, the scope of the consent decree. For example, the consent decree contains several provisions barring prayer by school officials. The modified decree makes it clear that "'Prayer' does not include customary, polite expressions and greetings, including 'God Bless You' or 'Thank Heavens,' or a student’s religious expression responsive to a legitimate academic class assignment."

The agreement also provides for the school board to pay attorneys' fees and costs totally $265,000, mostly to Liberty Counsel which represented plaintiffs in the case. The ACLU waived its claim for attorneys fees against the school board.  The settlement still must be approved by the court.

In press releases, each side has characterized the settlement agreement rather differently. The ACLU said that the changes merely "reinforce and clarify the basic premise of the original Consent Decree – that official, government sanctioned religious activities are prohibited under the Constitution while individual religious expressions are protected by the Constitution."  Sharply criticizing the challenge to the original consent decree that was brought by Liberty Counsel, an ACLU attorney said:

They came in after the fact, stirred up some controversy, raised some money on this invented issue, and will leave town likely with $265,000 in taxpayer money that would be better spent on the students in our community.

Liberty Counsel, on the other hand said:

on the eve of Independence Day, Liberty Counsel has restored freedom to the Santa Rosa County, Florida, School District teachers, staff, students, and members of the community.... The Consent Decree that led to criminal indictments against school employees for prayer and banned "God Bless" in Santa Rosa County schools will now be gutted and revised. The amended Consent Decree will restore dozens of constitutional religious freedoms that were previously denied.

Canadian Supreme Court Will Review Terrorism Law's Motive Requirement

According to Canadian Press, Canada's Supreme Court yesterday agreed to review three cases raising the question of whether the definition of "terrorist activity" in Canada's anti-terrorism law violates Canada's Charter of Rights and Freedoms. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." Defendants in the cases contend that this invites racial and ethnic profiling and operates to focus prosecutorial scrutiny on political, religious and ideological beliefs. For more on the the Ontario Court of Appeals decision below in one of the cases, see prior posting.

Controversial Charter School Loses Last Efforts To Stay Open

A Minnesota federal district court yesterday refused to issue a temporary restraining order or a preliminary injunction to allow the Tarek ibn Ziyad Acedmy to continue to operate after the July 1 expiration of the contract with its current sponsor. The school is also embroiled in litigation with the ACLU over whether its operations violate the Establishment Clause by promoting Islam. (See prior posting.) In Tarek ibn Ziyad Academy v. Islamic Relief USA, (D MN, June 30, 2011), the court held that the controversial charter school is unlikely to prevail either on its challenge to a Minnesota statute that requires charter school sponsors to be in-state corporations, or in its contract claims against its chartering organization. TiZA had attacked the state statute on due process, equal protection, commerce clause and contracts clause grounds. The Minneapolis Star Tribune reports on the decision. Following the court's decision, TiZA filed a Notice of Voluntary Dismissal of its lawsuit.

The court's decision follows a ruling last night by the Minnesota Department of Education denying a second request by Novation Education Opportunities to become the school's authorizer, according to Inner Grove Heights Patch). (See prior related posting.) All of this means that TiZA likely has no choice but to close.

UPDATE: According to the St. Paul Pioneer Press, on Thursday TiZA filed for bankruptcy.

Bangladesh Constitution Amended: Secular State With Islam As the State Religion

The Daily Star reports that in Bangladesh yesterday, Parliament passed the 15th constitutional amendment bill by a vote of 291-1.  While the most important changes include ones that modify the system for parliamentary elections and again allow religion-based parties (see prior posting), the bill also addresses other religious issues. Secularism was reintroduced as one of the four fundamental principles of the nation. However, Islam was retained as the state religion and the Arabic phrase "Bismillahir Rahmanir Rahim" (and its translation "In the name of Allah, the Beneficent, the Merciful/ In the name of the Creator, the Merciful") was made a part of the constitution. A new clause added to the constitution provides: "The state shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects, and communities." According to MSN News, Hindus and other religious minorities in Bangladesh strongly criticized the decision to retain Islam as the state religion.

UPDATE: On July 3, Bangladesh's President Zillur Rahman gave his consent to the 15th constiutional amendment bill. (Daily Star).

Tea Party Candidate Charges Her Opponent Rep. Keith Ellison Is Radical Islamist

The American Independent yesterday reported on the House of Representatives race in Minnesota's 5th Congressional District.  Incumbent Keith Ellison is being challenged by Tea Party Nation candidate Lynne Torgerson who accuses Ellison of being a "radical Islamist" who fails to oppose banning Shariah law in the United States. She says Ellison does not hold the U.S. Constitution supreme over Islamic law.  Apparently her charge is based on Ellison's statement that the U.S. Constitution "is the bedrock of American law." She complains that he did not use the term "supreme". Ellison charges that Torgerson is running a campaign based on hate, division and fear. In the 2010 Congressional race, Ellison received 68% of the vote, and Torgerson received less than 4%.

CAIR Is Among Groups Whose Non-Profit Status Was Lost For Non-Filing

Earlier this month, the Internal Revenue Service released a list of some 275,000 non-profits had lost their tax-exempt status because they failed to file their required Form 990 or 990-N for thee consecutive years. (See prior posting.) Yesterday The Tennessean reported that among the groups whose non-profit status has expired is the sometimes controversial national Council on American Islamic Relations. A CAIR spokesman said the problem stems from an incorrect filing several years ago, but attempts by a Tennessean reporter to obtain a copy of current filings from CAIR have been unsuccessful. Some CAIR critics charge that the organization is hiding financial information from the public. Many local CAIR chapters that are separately incorporated have properly filed returns.

Rhode Island Legislature Passes Civil Unions Law With Broad Religious Exemptions

Yesterday, the Rhode Island state Senate passed, and sent to the Governor for his signature, HB 6103 which authorizes same-sex civil unions. The Rhode Island House passed the bill in May. Under the bill, parties to a civil union have the same rights and responsibilities as married couples.  The bill contains a broad religious exemption provision.

[N]o religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:
(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or
(2) To solemnize or certify any civil union; or
(3) To treat as valid any civil union;
if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.

The New York Times reports on passage of the legislation. It quotes gay rights advocates who complain that the provision allowing religious organizations to refuse to treat civil unions as valid means that Catholic hospitals could deny visitation rights, and Catholic universities could deny family medical leave, to same sex partners.

Florida Atheist Sues Sheriff, Claiming Retaliation

Last year, Atheists of Florida made public records requests in a challenge to the decision by Polk County, Florida sheriff, Grady Judd, to remove basketball hoops, backboards and poles from the county jail and donate them to eight local churches. (See prior posting.) Now, according to Yahoo News, EllenBeth Wachs, legal coordinator for Florida Atheists, has filed a federal lawsuit against Judd charging that he unconstitutionally retaliated against her, arresting her on two trumped up charges, because of her objections to the pervasive Christian religiosity of Polk County.

The complaint (full text) in Wachs v. Judd, (MD FL, filed 6/24/2011), alleges that in March 20111, county law enforcement officials arrested Judd on unauthorized practice of law charges, and conducted a search of her home. In May, Wachs was arrested on charges of "simulation of a sexual act in the presence of a child."  The arrest was based on sounds a neighbor's son heard emanating from Wachs' window. The complaint alleges that these arrests were retaliatory and were designed to punish Wachs for her outspoken Atheist beliefs.  It contends that the sheriff's actions violated the free expression, equal protection, due process and Establishment clauses of the constitution. Wachs asks the court to enjoin Judd from instituting further investigations or arrests of her. [Thanks to Scott Mange for the lead.]

Issues Remain On Statute of Limitations In Priest Abuse Case

In Doe 76C v. Archdiocese of Minneapolis and St. Paul, (MN App., June 27, 2011), a Minnesota appellate court held that questions of fact remain on the issue of whether the statute of limitations had run on tort and fraud claims growing out of alleged childhood sexual abuse by a priest.  In reversing the trial court's grant of summary judgment to defendant, the court held that an expert's testimony on repressed memory should be admitted on the issue of when plaintiff had reason to believe he had been abused.  The court also held that plaintiff's becoming aware that the priest had been accused of abusing other children did not necessarily put him on notice that he had a cause of action for fraud.