9th Circuit: Teacher Who Allegedly Insulted Religion Has Qualified Immunity From Damages

The 9th Circuit yesterday affirmed a district court's dismissal of an action that had been brought by a former California high school student against his history teacher. (See prior posting.)  Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. In C.F. v. Capistrano Unified School District, the 9th Circuit held that claims for declaratory relief were moot since plaintiff had graduated and was no longer in the high school. Moving to plaintiff's claim for nominal damages, the 9th Circuit held:

Mindful that there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances, we affirm the district court’s conclusion that the teacher is entitled to qualified immunity. Because it is readily apparent that the law was not clearly established at the time of the events in question, and because we may resolve the appeal on that basis alone, we decline to pass upon the constitutionality of the teacher’s challenged statements.

In discussing whether a rule of law had been clearly established, the court commented:

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority....But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

The Christian Science Monitor reports on the 9th Circuit's decision.

Profile of Jon Huntsman Includes Insights Into His Religious Views

This month's Vogue Magazine carries an interesting lengthy profile of Republican Presidential hopeful Jon Huntsman. Here is an excerpt that deals with the Huntsman family's religious beliefs:

Mary Anne [Huntsman's 26-year old daughter], in jogging shorts, is headed out to pick up lunch. She falls into the conversation I am having with her mother about the family’s approach to religion. Mary Kaye [Huntsman's wife] has been telling me that both Episcopalianism, the denomination in which she was raised, and her husband’s Mormon heritage are important to them. “I draw from both,” Mary Kaye says. “I think my children have drawn from both. We are a family that combines two, and it works for us.”

I ask her daughter Mary Anne how she might identify her religion on a census form. “Mormon and Christian,” she says. “Every person is different in the way they feel spiritually.” Her mother adds that spirituality, which the family strongly feels, is more important than the tenets of a particular faith.

People tend to see Mormonism as a binary, you-are-or-you-aren’t question, but Jon Huntsman is something more like a Reform Jew, who honors the spirit rather than the letter of his faith. He describes his family on his father’s side as “saloon keepers and rabble rousers,” and his mother’s side as “ministers and proselytizers.” The Huntsman side ran a hotel in Fillmore, Utah’s first capital, where they arrived with the wagon trains in the 1850s. They were mostly what Utahans call “Jack Mormons”—people with positive feelings about the Latter-Day Saints church who don’t follow all of its strictures. “We blend a couple of different cultures in this family,” he says.

Polish Court Clears Death Metal Singer On Offending Religious Feelings Charges

According to yesterday's London Guardian, a court in Poland has cleared "death metal" singer Adam Darski (known as Nergal) of charges of offending religious feeling. In a 2007 concert in Poland, Darski tore up a Bible, threw the pages to the audience and asked them to burn them.  He also called the Bible a deceitful book and the Church a criminal sect.  The judge concluded that Darski's actions were "a form of art" consistent with the style of his band.

Vatican Posts Some Files of Accused Priest Online In Advance of Producing Them In Discovery

A Portland, Oregon federal district court judge has ordered the Vatican to turn certain documents over to plaintiff's lawyers by today in a lawsuit in which a victim of priest sexual abuse is attempting to hold the Holy See vicariously liable for the action of a now deceased priest.  Various other theories for holding the Vatican liable for the abuse by Rev. Andrew Ronan were dismissed. (See prior posting.)  USA Today reports that in a pre-emptive move on Wednesday, the Vatican posted online (full text) some of the internal files on Ronan.  In posting the document, the Vatican's lawyer said:

The federal courts have dismissed most of the Doe lawsuit. Today, to assist the Oregon federal district court in resolving the sole remaining jurisdictional issue in the case, the Holy See is releasing all known documents relating to Ronan held by the Roman Curia.

Like other documents previously produced by the Servite Order and the Portland Archdiocese, these newly-released documents show that the plaintiff’s lawyers’ long-standing accusations against the Holy See are false. The Holy See was not involved in Ronan’s transfers, including the transfer to Portland, and had no prior knowledge that Ronan posed a danger to minors. Instead, the documents confirm that the Servite Order first informed the Holy See of Ronan’s misconduct when Ronan petitioned for laicization in February 1966 – after the plaintiff’s abuse – and that the Holy See granted the petition for laicization just weeks later.

The plaintiff’s lawyers never had support for their calumnious accusations against the Holy See. They have nonetheless chosen to misuse the legal system as a vehicle to pursue a broader agenda – a decision that has misled the public and wasted considerable resources.

Notwithstanding the plaintiff’s lawyers’ regrettable conduct, it is important to remember that any abuse suffered by this plaintiff, or any other victim of sexual abuse, is deplorable.

Court Says Illinois May Refuse To Renew Adoption and Foster Care Contracts With Catholic Charities

Yesterday, in Catholic Charities of the Diocese of Springfield v. State of Illinois, (IL Cir. Ct., Aug. 18, 2011), an Illinois trial court rejected attempts by Catholic Charities organizations in three cities to prevent the state of Illinois from refusing to renew their contracts to provide foster care and adoption services for the state. The state took the step because Catholic Charities will not serve unmarried cohabiting couples (including those in same-sex civil unions). (See prior posting.)  The court held that even though Catholic Charities have provided foster care and adoption services to Illinois families for 40 years under successive one-year contracts, the organizations have no legally recognized protected property interest in the renewal of their contracts. Chicago Tribune reports on the decision.

Britain Faced With Issues of Caste Discrimination

Some 5% of Britain's population are originally from the Indian subcontinent.  Apparently this has led to the importation into Britain of problems of caste discrimination. The London Mail reported yesterday on a case pending before an employment tribunal in which a couple-- from different castes-- claim they were forced from their jobs in a British law firm because of their marriage. Amardeep Begraj, a solicitor, a Sikh from the Punjab region, belongs to the Jat caste.  She met her husband, Vijay-- a  low-caste Dalit-- at the law firm where he worked as the practice manager.  They were warned by a senior colleague not to marry because of their caste differences.  Amardeep claims that her workload was increased and her secretarial support reduced as punishment after she was married, and that she was paid less than colleagues.  After Vijay was fired, Amardeep resigned from the firm. The employment tribunal is considering whether this constitutes racial or religious discrimination. Meanwhile, the government is considering whether to add caste to the equality law that now protects against discrimination on the basis of race, gender, religion and sexual orientation.

Perry Says Texas Schools Teach Creationism

The Texas Tribune reported yesterday on answers to questions about evolution given by Texas Gov. Rick Perry during his New Hampshire campaign stop. Perry, now a candidate for the Republican presidential nomination, was asked about the topic by a young boy-- visibly prompted by his mother. Perry responded:

It’s a theory that’s out there. It’s got some gaps in it.  In Texas, we teach both creationism and evolution in our public schools. Because I figure you’re smart enough to figure out which one is right.

Creationism is not part of the formal science curriculum in Texas. However, in 2009, the State Board of Education voted to insert in the biology curriculum a call for students to "analyze and evaluate scientific explanations" on the complexity of cells as well as data on the "sudden appearance and stasis and the sequential groups in the fossil record." (See prior posting.)

Initiative Proponents Take First Steps Toward Legalizing Same-Sex Marriage In Maine

According to yesterday's Portland Press Herald, proponents of an initiative to legalize same-sex marriage in Maine can now begin gathering signatures on their initiative petitions.  This week, the Secretary of State's office approved the language that would appear on the Novembeer 2012 ballot if at least 57,277 valid signatures are collected:

Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?

Proponents have until January to collect the required number of signatures.  If they are successful, the legislature will have an option to enact the legislation. If it does not, then the measure goes on the ballot.

Britain's Equality Commission Will Study "Reasonable Accommodation," But Not In European Court Submission

Last month, Britain's Equality and Human Rights Commission announced that it had petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempts by employees to obtain accommodation of their Christian religious practices or beliefs. The Commission suggested that it would urge the court to adopt a principle of reasonable accommodation. (See prior posting.) Now, however, the Commission has announced that while it has been granted permission to intervene, it will not used these cases as the vehicle to deal with the concept of reasonable accommodation.  Instead, according to a document posted on the Commission's website (full text Word.doc), it is seeking public input on the content of its submission to the Court, and will examine separately, without the time pressure of the few week deadline for its filing with the ECHR, "whether the concept of reasonable accommodation has any useful practical application in cases concerning the manifestation of religion or belief." Yesterday's London Telegraph reports on these developments.

Claims Against Church Can Be Decided Using "Neutral Principles"

In Johnson v. Antioch United Holy Church, Inc., (NC App., Aug. 16, 2011), a North Carolina appeals court reversed a trial court's dismissal of lawsuit against a church.  The trial court had held that it was constitutionally precluded from deciding the case because the suit-- alleging violations of North Carolina's Non-Profit Corporation Act and alleging intentional infliction of emotional distress-- involved an internal church governance dispute. However the court of appeals concluded that the claims could be resolved under neutral principles of law. It said in part:

Plaintiffs allege Defendants have wasted corporate assets without proper authority under Antioch’s bylaws, caused church assets to inure to the benefit of private individuals, and failed to keep appropriate records of its activities. Plaintiffs further allege these acts have threatened the church’s tax-exempt status and exposed Plaintiffs to liability for federal and state income tax for funds received by Antioch. Whether Defendants’ actions were authorized by the bylaws of the church in no way implicates an impermissible analysis by the court based on religious doctrine or practice....

Plaintiffs’ second claim alleges common law intentional infliction of emotional distress against McGlenn when McGlenn delivered to Wallace a letter stating that Wallace was no longer a member of Antioch. While a court cannot determine whether a church’s grounds for membership are spiritually or doctrinally correct, ... applying a secular standard of law to secular tortious conduct by a church is not prohibited by the Constitution.

The appeals court also reversed the trial court's imposition of Rule 11 sanctions on plaintiff.

9th Circuit: Idaho Charter School Teachers Have No 1st Amendment Right To Use Religious Texts

The 9th Circuit Court of Appeals has affirmed the dismissal of a lawsuit brought by an Idaho state-funded charter school and two of its teachers challenging a policy adopted by the state's Public Charter School Commission. The Commission adopted the view of the state attorney general that the use of religious documents or texts in a public charter school classroom would violate Art. IX, Sec. 6 of the Idaho Constitution. That section prohibits the use of sectarian books or documents in public school classrooms. Teachers at the Academy wanted to use primary source documents-- including the Bible and the Koran-- in teaching their courses and argued that the ban violated their and their students' 1st and 14th Amendment rights. (See prior posting.)

In Nampa Classical Academy v. Goesling, (9th Cir., Aug. 15, 2011), the 9th Circuit held that the school, as a government entity, cannot bring an action against the state, but a teacher does have standing to pursue the claim. The court went on to hold, however, that:

The First Amendment’s speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. The government’s own speech is exempt from scrutiny under the First Amendment’s speech clause.

Judge Rawlinson concurred only in the result.

Tennessee Sheriff Changes Rules On Mug Shots of Those Wearing Religious Head Coverings

Yesterday's Tennessean reports that in Nashville,  the Davidson County, Tennessee sheriff's office has revised its policy regarding wearing of religious head coverings for mug shots.  A person wearing religious head covering who is being booked into the county jail will first have a mug shot taken with the head covering on.  Then a second photo will be taken with the head covering removed from the person's face.  This photo will be taken only in the presence of a same-sex guard, and will be kept in a confidential file that can only be opened by court order.

Barber Shop Closed Down After Inspectors Find Palo Mayombe Altar and Animals

In New Bedford, Massachusetts on Tuesday, the state Division of Professional Licensure closed down a downtown barber shop after animal control officers found evidence that the shop's owner, William Camacho, was engaging in ritualistic animal sacrifice there.  According to the New Bedford Standard-Times, Camacho is a practitioner of Palo Mayombe.  A routine fire and building inspection turned up two chickens and four roosters (one dead) in cages next to a religious altar in the barber shop's basement. Camacho says he does not sacrifice the animals at the barber shop, but only at ceremonies in rural settings.

UPDATE: According to  New Bedford's health director, the barber shop was ordered closed because of the health problems that could result from fecal matter found on the basement floor where the animals were located. The inspection was prompted by an anonymous complaint that roosters were heard crowing. (Standard-Times, Aug. 18).

New York City Council Strengthens Law's Requirement To Accommodate Religious Observance

The Empire reports that yesterday New York City Council passed an amendment (full text) to the city's Human Rights Law making it more difficult for both private and governmental employers to refuse to accommodate employees' religious practices.  The amendment was particularly an effort to address problems that the large Sikh community in Queens has faced in seeking to wear turbans while employed by the New York Police Department. The amendment requires the employer to show significant expense or difficulty would be involved in accommodating an employee before denying an accommodation request.

Georgia City Approves Controversial Mosque

The Atlanta Journal Constitution reports that yesterday the Lilburn, Georgia city council voted 3-1 to approve the controversial rezoning request of a Muslim congregation to build a 20,000 square foot worship center to meet the needs of the city's growing Muslim population.  Council had twice before rejected the rezoning request that would have permitted the Dar-E-Abbas congregation to buy up land surrounding its current mosque and expand. Last December, council deadlocked 2-2 over the request, though zoning amendments last September permitted the congregation to create a cemetery less than a half mile away. (Atlanta Journal Constitution).  Dar-E-Abbas will now drop its federal discrimination lawsuit against Lilburn which it brought in 2009, but the Department of Justice is still investigating whether the city has violated the Religious Land Use and Institutionalized Persons Act.

No Free Exercise Violation In Requiring Dog Be Vaccinated Before Being Adopted From City Shelter

In a variation on the typical free exercise objection to vaccination requirements, a Florida federal district court has dismissed a claim that the Department of Animal Services in Clearwater, Florida violated a Largo, Florida man's rights by insisting that the dog he wished to adopt first have various shots.  In Fohrmeister v. Doe, 2011 U.S. Dist. LEXIS 90702 (MD FL, July 27, 2011), a federal magistrate judge, in an opinion adopted by the court (2011 U.S. Dist. LEXIS 90704, Aug. 15, 2011), held that the pro se plaintiff had failed to allege sufficient facts to make clear what his religious beliefs were. Moreover, "the burden posed by the applicable law on any religious belief or practice appears tangential and attenuated at best."

FFRF Objects To Funding Improvement In Church Building Being Used For Public Pre-School Class

Last week, the Cedar Falls, Iowa Board of Education, short on space for its pre-school classrooms, voted to locate one of them in Kaio Church, next door to an existing elementary school.  The Board approved spending over $61,000 to add handicap accessible restrooms, installing emergency exits, abating asbestos and otherwise bringing the space up to building code requirements. (WCF Courier 8/9). Now, according to yesterday's WCF Courier, the Freedom from Religion Foundation has written the Board contending that the contract violates Art. I, Sec. 3 of the state constitution which provides:

nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship....

School Superintendent David Stoakes disagrees, saying: "Separation has to do with programming, not the facility. We are not going to be propagating any religion in our preschool program."

Report Disputes Data On Decrease of Christian Population In West Bank, Gaza and Jerusalem

Seeking to counter reports accusing Israel of creating a mass exodus of Palestinian Christians from Palestinian areas, the Jewish Council on Public Affairs yesterday announced the release of a report (full text) on the size of the Christian population in the West Bank, Jerusalem and Gaza. Here is an excerpt:

What is misleading about the way the story has been told about a diminishing Palestinian Christian population?

1) Population: We are told that the population is small. In reality, though, it has never been large. The most important part of the story is that the significant drop in Christian population in the West Bank occurred years ago. Some Palestinian Christians became refugees in 1948. Others left during Jordanian rule from 1948-1967. Since 1967, when the West Bank came under Israel and later Palestinian Authority administration, the population has not decreased. In fact, according to almost all sources, it has increased – just at a rate slower than it would have increased without emigration. Hypothetic data showing how the population might have increased are speculative and questionable.

2) Percentage: The percentage of Christians in the West Bank has decreased dramatically. This is largely due to the exponential increase in the surrounding Muslim population. Emigration and low birth rate are real, but pale in comparison to the dramatic increase in the Muslim demographic. In many instances, the data used for comparison reference different areas, making the decrease seem more stark than it really is.

Suit Challenges City's Transfer of Property To Catholic High School For Athletic Complex

Americans United announced yesterday that it, along with the ACLU of Indiana, has filed a lawsuit in federal district court challenging plans of the South Bend (IN) Common Council to use $1.2 million in economic development funds to purchase property that was the site of a retail store, tear down the building on it, and transfer it for $1 to the Catholic Diocese so St. Joseph's High School can use the property for part of its new $35 million football stadium and athletic complex. The complaint (full text) in Wirtz v. City of South Bend, Indiana, (ND IN, filed 8/16/2011), alleges that the property transfer violates the Establishment Clause, as well as Art. I., Secs. 4 and 6 of the Indiana constitution.  According to the complaint, while the Diocese intends to permit the football stadium to be used by the city or by public schools, this will be limited to times when it is not being used by St. Joseph's teams, and the Diocese may charge others for use of the stadium. (See prior related posting.)

Custody Order Violates Establishment Clause

In Rosenstein v. Rosenstein, (TX App., Aug. 11, 2011), a Texas appeals court held that in a divorce action, the trial court violated the mother's Establishment Clause rights when, in an amended decree, it awarded the father exclusive possession of the couple's children on four Jewish religious holidays, and on every Sunday morning.  The wife argued, in part, that this precluded her from having an opportunity to furnish her children religious education on Sunday, her primary day for attending church. The decree awarded the wife possession of the children on Thanksgiving, Christmas, New Year's day and Easter.  However, the father's religious holiday rights took precedence, so that conflicts between Passover and Easter, or Hanukkah and Christmas, would result in the father having the children on those days.  In reaching its conclusion, the court quoted an earlier state appeals court decision holding that "it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child."