Recent Prisoner Free Exercise Cases

In Ali v. Quarterman, (5th Cir., July 18, 2011), the 5th Circuit allowed a Muslim prisoner to move ahead with his RLUIPA challenge to prison rules that required him to be clean shaven, and allowed him to wear a kufi only in his cell and at religious services. His 1st Amendment and equal protection challenges were dismissed.

In Gannaway v. Berks County Prison, (3d Cir., July 18, 2011), the 3rd Circuit found no support in the record for a former jail inmate's claim that the jail failed to acknowledge Ramadan and prevented him from practicing his Muslim religion.

In Knight v. Kelly, 2011 U.S. Dist. LEXIS 76684 (ED VA, July 14, 2011), a Virginia federal district court dismissed the claim by a Sunni Mulim inmate that he was denied the Eid-Al-Adha festival tray in November 2009.

In Glover v. Cate, 2011 U.S. Dist. LEXIS 77096 (ED CA, July 13, 2011), an inmate claimed that as a "Christian/Odinist/Aryan", it violated his religious beliefs to share a cell with someone who was not of the Aryan race. A California federal magistrate judge held that because plaintiff has only been deemed eligible to be housed with someone of a different race, but has not yet been placed in a cell with a non-Aryan, his religious claims are not ripe for review. The magistrate judge recommended that the religious claims be dismissed without prejudice. A similar claim by another inmate who refused a cell integration order was dismissed by a federal magistrate judge for failure to exhaust administrative remedies in Walker v. Cate, 2011 U.S. Dist. LEXIS 79067 (EC CA, July 19, 2011).

In Valteau v. Gusman, 2011 U.S. Dist. LEXIS 78158 (ED LA, July 19, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 78160, June 30, 2011) and permitted an inmate to move ahead with a claim that jail officials have not supplied him with a Qur'an and other Islamic materials and he has not had a visit from an Imam, even though Christian prisoners receive Bibles and have visits from a minister.

In Lakhani v. Seneca County Sheriff's Office, 2011 U.S. Dist. LEXIS 78422 (ND OH, July 19, 2011). an Ohio federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 78424, June 30, 2011) and dismissed numerous complaints by a Muslim inmate (a Pakistani citizen) regarding conditions at a county jail at which he was held pending transfer to a federal facility. Among the dismissed claims were ones alleging that congregate Muslim services were only permitted on some Fridays and that Muslims were refused three additional religious services per week.

In Morales v. Beard, 2011 U.S. Dist. LEXIS 78303 (MD PA, July 19, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 78308, June 22, 2011) and allowed a Native American inmate's free exercise and retaliation claims to proceed against some defendants, while dismissing others.  Plaintiff, a Taino Indian, claims that he was wrongly placed on an out of state transfer list that resulted in his transfer to a Virginia state prison where he was made to shave and get a hair cut even though he had religious exemption in Pennsylvania.

In Golosow v. Rubenstein, 2011 U.S. Dist. LEXIS 79225 (ND WV, July 20, 2011), a West Virginia federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 79201, June 27, 2011) and dismissed an inmate's claim that his 1st and 14th Amendment rights were violated when he was disciplined for fraudulently representing he was a Buddhist in order to obtain a vegetarian diet.

In McDaniels v. Fischer, 2011 U.S. Dist. LEXIS 79591 (WD WA, July 21, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 79588, June 17, 2011) and dismissed a Nation of Islam inmate's claims that his rights under the 1st and 14th Amendments and RLUIPA were infringed by denying him access to the Eid-Ul-Fitr and Eid-Al-Adha feasts in 2009, denying him a Halal diet, not allowing him equal time for religious celebrations or equal access to prayer oils that other religious groups had.  Even though issues of material fact remained on the Halal diet claims, the court held that the state had changed its policy and defendants had qualified immunity.

In Thunderbird v. Oregon State Department of Corrections Employees, 2011 U.S. Dist. LEXIS 78935 (D OR, July 20, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 79336, June 28, 2011) as to a lengthy complaint by an inmate.  As part of its decision, the court dismissed without prejudice, for failure to exhaust administrative remedies, plaintiff's claim that a prayer feather attached to his medicine bag was confiscated.

Pakistan Senate Condemns LGBT Pride Event At U.S. Embassy

According to The Nation, Pakistan's Senate yesterday condemned the U.S. embassy's hosting last month of Islamabad's first ever LGBT Pride Celebration.  A U.S. Embassy press release said that more than 75 people attended the event, including Mission Officers, U.S. military representatives, foreign diplomats, and leaders of Pakistani LGBT advocacy groups.  The Charge d'Affaires told attendees that the U.S. Embassy supported their push for LGBT rights.  Pakistani lawmakers said that LGBT activities violate basic principles of Islam as well as Pakistan's constitution. They referred the matter to the Senate Standing Committee on Foreign Affairs.  Some senators however suggested that the U.S. embassy has diplomatic immunity that allows it to hold such functions.

L.A. Synagogue Wins Its RLUIPA Claims

In Congregation Etz Chaim v. City of Los Angeles, (CD CA, July 11, 2011), a California federal district court held that RLUIPA was violated by the denial of a conditional use permit to a Hasidic congregation that wanted to use a house in the Hancock Park area of Los Angeles for religious services.  The congregation and nearby homeowners had been at odds over use of the property for decades. The court rejected the city's argument that no substantial burden was placed on the congregation because it could find an alternative location. It also held that the congregation had shown a prima facie case of unequal treatment. The court granted a preliminary injunction to bar denial of a conditional use permit and to prevent enforcement actions that would prevent the congregation from using the property. Religious Freedom In Focus reports on the decision.

Religious Beliefs May Not Be The Basis For An Incompetency Finding

In State of Ohio v. Daley, (OH App., July 21, 2011), an Ohio appeals court reversed a trial court's finding that defendant was incompetent to stand trial on charges of leaving threatening voice mails and sending a threatening letter to a county support enforcement agency employee. Defendant challenged the trial court order that he be hospitalized for restoration of sanity, and treated with anti-psychotics if necessary. The court held that there was no evidence to support the trial court's finding of incompetence:

Dr. Noffsinger’s opinion that Daley was incompetent, formulated after an hour and ten-minute evaluation, was based solely on Daley’s religious beliefs. Specifically, Dr. Noffsinger opined that Daley, a “radical Christian,” “expresses such extreme intensity of religious belief in very unorthodox religious beliefs to the point to constitute psychosis.” Noffsinger further testified that treating Daley would “change his psychotic symptoms of which are a religious theme[,]” so that his “intensity and [ ] preoccupation with his religious beliefs will be greatly decreased.”

The court held that defendant's religious beliefs are constitutionally protected, so they cannot be the basis for a finding of insanity. [Thanks to Volokh Conspiracy for the lead.]

China Moves To Ordain New Bishops Without Vatican Approval

The London Telegraph yesterday reported that the Chinese government is once again defying the Vatican by moving to ordain a number of new bishops who do not have Vatican approval, apparently ending the steps toward improved relations between China and the Vatican that emerged in 2007.. (See prior posting.) The Chinese Catholic Patriotic Association, the government body that controls the Catholic Church in China, announced the election of 7 new bishops a week after the ordination of Fr. Huang Bingzhang as the new bishop of Shantou. Huang was immediately excommunicated by the Vatican.  Four bishops loyal to the Vatican were forced by Chinese officials to participate in Huang's ordination. [Thanks to Pew Sitter for the lead.]

Obama Sends DADT Repeal Certifications To Congress; Repeal of Policy Takes Effect Sept. 20

Under the Don't Ask Don't Tell Repeal Act of 2010, the provisions of 10 USC 654 (which preclude those who are openly gay or lesbian from serving in the armed forces) are repealed 60 days after the President transmits to congressional defense committees a written certification signed by himself and by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff.  The certification is to attest to the fact that the Department of Defense has prepared needed policies and regulations and that their implementation is consistent with military readiness and effectiveness, unit cohesion and armed forces recruitment and retention. Today the President announced that he has transmitted the required certification (full text) to Congress. In making the announcement, the President said:

As of September 20th, service members will no longer be forced to hide who they are in order to serve our country. Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

Obama Endorses Current Policy On Faith-Based Hiring By Federal Grantees

At a Town Hall meeting at the University of Maryland this morning, President Obama was asked specifically about his administration's position on religion-based hiring by faith-based groups receiving federal grant moneys. Blog from the Capital reports on (and provides a transcript of) the Q and A. Obama has not rescinded Executive Order 13279 issued in 2002 by President George W. Bush permitting religious organizations which contract with the government to use religious criteria in their hiring. (See prior related posting.) Obama responded to the Town Hall question in part as follows:

I think that the balance we have tried to strike is to say that if you are offering - if you have set up a non-profit that is disassociated from your core religious functions and is out there in the public doing all kinds of work then you have to abide generally with the nondiscrimination hiring practices. If, on the other hand, it is closer to your core functions as a synagogue or a mosque or a church, then there may be more leeway for you to hire somebody who is a believer of that particular religious faith.

State and Federal Legislative Proposals To Stop San Francisco Anti-Circumcision Vote Have Been Introduced

As reported yesterday by the AP, two members of the California state Assembly on July 7 introduced a bill that would bar San Francisco and other cities from regulating male circumcision. The bill, intended to stop San Francisco's November vote on a ballot measure banning male circumcision (see prior posting), was introduced as an amendment to an unrelated measure on global warming. The operative section of AB 768 reads:

No local statute, ordinance, or regulation, or administrative action implementing a local statute, ordinance, or regulation shall prohibit or restrict the practice of male circumcision, or the exercise of parental authority with respect to the same.

Meanwhile, on June 24, ten members of the U.S. House of Representatives also introduced legislation aimed at barring the San Francisco ballot measure.  HR 2400 provides:

No State or political subdivision of a State may adopt or continue in force a law, regulation, or order that prohibits or regulates the circumcision of males who have not attained the age of 18 years and whose parent or guardian has consented to the circumcision, unless such law, regulation, or order--
(1) applies to all such circumcisions performed in the State; and
(2) is limited to ensuring that all such circumcisions are performed in a hygienic manner.

Last month, Rep. Brad Sherman (D-CA) had announced his intention to introduce this bill. (See prior posting.)

San Leandro Seeks Supreme Court Review of RLUIPA Decision

The city of San Leandro, California announced yesterday that it has filed a petition for certiorari seeking U.S. Supreme Court review of the 9th Circuit's decision in International Church of the Foursquare Gospel v. City of San Leandro. In the case, the 9th Circuit held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. (See prior posting.)

Monks Win Constitutional Challenge To Louisiana Limits On Selling Caskets

In St. Joseph Abbey v. Castille, (ED LA, July 21, 2011), a Louisiana federal district court ruled that Louisiana's Embalming and Funeral Directors Act (RS 37:831 ff.) cannot constitutionally be applied to prevent a Catholic monastery from selling simple wooden caskets that it manufactures. The Louisiana law provides that only licensed funeral directors may engage in the retail sale of caskets, and they may be sold only at licensed funeral establishments. The court held that the restriction violates the due process and equal protection clauses because the licensing requirements are "not rationally related to public health and safety concerns." Instead, "the provisions simply protect a well-organized industry that seeks to maintain a strict hold on this business." The Wall Street Journal yesterday reported on the decision. (See prior related posting.)

Irish Prime Minister Delivers Unprecedented Attack On Vatican

AP reports that a hard-hitting speech to the lower house of Ireland's Parliament, Irish Prime Minister Enda Kenny delivered an unprecedented attack on the Vatican's handling of priest sexual abuse in Ireland. The move comes after the release earlier this month of a report on failures in the Diocese of Cloyne to report abuse to civil authorities. (See prior posting.) In his speech (full text), Kenny said:

Because for the first time in Ireland, a report into child sexual-abuse exposes an attempt by the Holy See, to frustrate an Inquiry in a sovereign, democratic republic...as little as three years ago, not three decades ago.

And in doing so, the Cloyne Report excavates the dysfunction, disconnection, elitism....the narcissism .......that dominate the culture of the Vatican to this day.

The rape and torture of children were downplayed or 'managed' to uphold instead, the primacy of the institution, its power, standing and 'reputation'.

Far from listening to evidence of humiliation and betrayal with St Benedict's "ear of the heart"......the Vatican's reaction was to parse and analyse it with the gimlet eye of a canon lawyer.

This calculated, withering position being the polar opposite of the radicalism, humility and compassion upon which the Roman Church was founded.

Abercrombie Assessed $20,000 In Damages On Title VII Claim, But No Injunction Issued

Earlier this month,in EEOC v. Abercrombie & Fitch Stores, Inc., an Oklahoma federal district court held that Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act by refusing to hire a Muslim teenager because her religious belief requiring her to wear a headscarf violates the company's "Look Policy" for sales models. (See prior posting.) On Wednesday, according to the Tulsa World, a federal jury awarded $20,000 in damages in the case. However the court refused the EEOC's request to issue an injunction against the company that would require it to notify job applicants who wear a headscarf to their interview that they may request a religious accommodation. The EEOC also wanted the court to mandate training on the accommodation issue for store managers. The company has changed its interview procedures so applicants are now told that models may not wear head coverings, and are asked if they have any questions about that policy. [Thanks to Steven H. Sholk for the lead.]

ACLU Seeks Disclosure of Funding For Texas Governor's Prayer Event

The ACLU of Texas announced yesterday that it has filed open records requests with state,county and city offices seeking information on the amount of government support that is being devoted to Texas Gov. Rick Perry's controversial prayer service scheduled for August 6 in Houston's Reliant Stadium. The ACLU says it is not trying to stop the event, but wants to create transparency as to funding. The event, called "The Response: A Call To Prayer for a Nation In Crisis" is billed as a non-denominational, apolitical Christian prayer meeting. (See prior posting.) According to yesterday's San Antonio Express-News, a spokesperson for Gov. Perry says that the American Family Association is paying all the costs of the event, and no public funds are being used.

Government Responds To Lawsuit Charging Censorship of Religion In Veterans' Funerals

The U.S. Department of Veterans Affairs has now filed its answer (full text) to the complaint in a widely publicized case that charged the Houston (TX) National Cemetery with censoring veterans' committal service rites to eliminate the mention of God. (See prior posting.)  In responding for the first time to charges made by plaintiffs in Rainey v. U.S. Department of Veterans Affairs, (SD TX, answer filed 7/15/2011), the VA contended:

Houston National Cemetery employees have attempted to honor the particular religious preferences and requests by deceased Veterans’ families by offering them the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and by not providing them with any religious or non-religious text or recitation when it is not desired and requested by the families.

The VA denied that the cemetery's director ever required that prayers the family wished to use in a private committal service be submitted to her in advance. However the VA did require that any request for a recitation in the cemetery service be initiated by the family. "Recitations are not to be presented to families by VA employees or registered VA honor guards to avoid imposing on them religious preferences that may not be desired."

Responding to claims regarding closure of the cemetery chapel, the VA said that it was closed for 10 months because of noise and fumes from a construction project.. A Bible, a cross and a star of David previously on display in the chapel were, after a complaint by attendees at a service, placed in storage to be used when requested by a family. The VA denied that the cemetery director stopped private funeral homes from informing families of the availability of a VFW chaplain. However, the VA claims that it moved to stop unauthorized solicitation by the VFW honor guard leader of payment from families for rendition of funeral honors. Monday's Houston Chronicle had additional coverage. [Thanks to Don Byrd for the lead.]

New Lawsuit Challenges County's Continued Denial of Water and Sewer Lines For Church

In March 2010, the U.S. 4th Circuit Court of Appeals held that a Seventh Day Adventist Congregation's rights under the Equal Protection Clause and RLUIPA were infringed when Prince George's County, Maryland refused to grant a change in sewer and water classifications for a portion of property on which the congregation planned to build a church. The court affirmed a $3.7 million jury award to the church. (See prior posting.) Nevertheless, the county has continued to deny the church a water and sewer category change so it could extend water and sewer lines to its property.  County Commissioner Mary Lehman says that the proposed change could affect the capacity of a nearby reservoir.  So now, according to AP, the church has filed another lawsuit in federal district court again asserting that the county's conduct violates RLUIPA. The complaint (full text) in Reaching Hearts International, Inc. v. Prince George's County Maryland, (D MD, filed 7/18, 2011), claims that the denials stem from a "personal, discriminatory vendetta" against the church by former city councilman Thomas Dernoga, which he continued even after his council term ended in 2011. AP reports on the filing of the lawsuit.

Suit Challenges Ballot Language Of Florida's Proposed Repeal of Blaine Amendment

As previously reported, earlier this year Florida's legislature voted to place a constitutional amendment on the November 2012 ballot that would repeal the state constitution's Blaine Amendment-- the provision that bars any state financial support of religious institutions. Yesterday a lawsuit was filed by representatives of a teacher's union, of a union representing school administrators, of an organization representing school boards, and by several clergy, seeking to have the proposal removed from the ballot.  The complaint (full text) in Shapiro v. Browning, (FL Cir. Ct., filed 7/20/2011), alleges that the title of the ballot measure and the summary of it that is to appear on the ballot are misleading. Florida statutes provide that the Attorney General may rewrite a ballot title or summary if a court finds that the version passed by the legislature is misleading. The lawsuit also seeks to have the court declare that the vesting of this power in the Attorney General is an unconstitutional delegation of legislative powers to an executive officer.  An FEA press release announcing the filing of the lawsuit says that the proposed amendment "is a shady way of opening the door for school vouchers for all." The Miami Herald also reports on the suit.

Denial of Permit For Church To Lease Space To School Is Upheld

In Calvary Christian Center. v. City of Fredericksburg, 2011 U.S. Dist. LEXIS 77489 (ED VA, July 18, 2011), a Virginia federal district court refused to grant a preliminary injunction to a church that was denied a special use permit that it sought in order to lease space in the church to a for-profit school for disabled children. The court rejected claims under the American for Disabilities Act, the Rehabilitation Act and RLUIPA. In rejecting the RLUIPA claim, the court concluded that the church was unlikely to be able to prove that leasing space for operation of a private school on church property amounts to an exercise of religion, nor that denial of the special use permit would amount to a substantial burden on religious practice. The church had argued that operation of the school was tied to its social ministry.

Obama Endorses Respect for Marriage Act That Would Repeal DOMA

The White House announced yesterday, both in a press briefing by Press Secretary Jay Carney, and in a post on the White House blog, that President Obama is "proud to support" S. 598, the Respect for Marriage Act, which would repeal the Defense of Marriage Act and recognize for purposes of federal law same-sex marriages that have been validly entered into in a state which recognizes such marriages. The Senate Judiciary Committee is scheduled to hold a hearing on the bill today. The same bill has been introduced in the House as H.R. 1116.

UPDATE: Transcripts of testimony at the hearing are now available online.

Church Sues Film For Copyright Violation In Use of Logo

According to Hollywood Reporter yesterday, the Church of God has filed suit in federal district court in Tennessee to prevent further showing of the film "Salvation Boulevard." The film was first shown at the Sundance Film Festival this year, but has now been released to theaters.  The lawsuit claims that the satirical film's use of a logo featuring the Christian cross surrounded by an abstract flame design violate's the church's copyright and trademark rights in its logo. The suit also claims unfair competition and violation of Tennessee's consumer protection act.

Hindu Vegetarians Can Sue Under UCC For Injuries After Meat Samosas Mistakenly Furnished

In Gupta v. Asha Enterprises, L.L.C., (NJ App., July 18, 2011), sixteen Hindu vegetarians sued an Indian restaurant which filled their order for vegetarian samosas with meat-filled samosas, some of which plaintiffs mistakenly ate. Plaintiffs sought damages for emotional distress as well as for the cost of traveling to India to participate in a spiritual cleansing ceremony made necessary in order to purify themselves after they ate the meat. The court rejected plaintiffs' claims that were based on the products liability law, deceptive advertising, breach of implied warranty and negligent infliction of emotional distress. However the court remanded the case for trial on plaintiffs' claim of breach of express warranty under the Uniform Commercial Code. The Newark Star-Ledger reports on the decision. [Thanks to Steven H. Sholk for the lead.]