Suit Challenges Constitutionality Of Parsonage Allowance

Yesterday's Wisconsin State Journal reports that the Freedom from Religion Foundation has filed suit in a Wisconsin federal district court to challenge the constitutionality of Sec. 107 of the Internal Revenue Code which allows clergy to exempt their cost of housing from income for federal tax purposes. (Background.)  It claims that the exemption violates the Establishment Clause by subsidizing churches and by creating excessive entanglement of church and state. A similar challenge to the parsonage allowance filed in California was voluntarily dismissed by plaintiffs earlier this year. (See prior posting.)

UPDATE: Here is the full text of the complaint in the case, Freedom from Religion Foundation, Inc. v. Geithner, (WD WI, filed 9/13/2011). Also, FFRF has issued a press release on its filing of the lawsuit.

French iPhone App Violates Law Against Collecting Religious Personal Data

JTA yesterday reported that a French iPhone app called "Jew or Not Jew?" was removed from the French iPhone app store after Jewish groups and human rights groups claimed it violates French law. The app allows the user to guess whether various public figures are Jewish or not.  French law prohibits the collection of personal data, such as a person's religion or ethnicity, without the person's consent.  The law was a reaction to the practice of Nazi occupiers in World War II who collected such data to send Jews to concentration camps. The app's developer Jonathan Levy said he intended the app to show pride in being Jewish. The organization SOS Racisme said it was planning to file an official complaint over the app this week. Violation of the French law could be punishable by up to 5 years in prison and over $400,000 in fines. The Wall Street Journal reports that the app is available in App Stores outside France, including in the United States.

4th Circuit: Title VII Exemption for Religious Organizations Extends To Harassment Claims

In Kennedy v. St. Joseph's Ministries, (4th Cir., Sept. 14, 2011), in a 2-1 decision the U.S. 4th Circuit Court of Appeals held that the religious organization exemption in Title VII of the 1964 Civil Rights Act (42 USC 20003-1(a)) applies to religious harassment and retaliation claims, not just to claims of religious discrimination in hiring and discharge.   At issue was a suit against a Catholic nursing home by a nursing assistant, a member of the Church of the Brethren, who claimed that she was subjected to a series of offensive comments regarding her religious dress. Judge King dissenting urged dismissal, concluding that permission to file an interlocutory appeal was improvidently granted. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

State Department Releases Annual Report on International Religious Freedom; Names Countries of Particular Concern

Yesterday, Secretary of State Clinton spoke (full text) at the release of the Department's 13th Annual Report on International Religious Freedom. The report covers the period July- December 2010, reflecting a change in the reporting cycle by the Department.  The report discusses separately the situation in 198 countries. At the release, Secretary Clinton said in part:

In the Middle East and North Africa, the transitions to democracy have inspired the world, but they have also exposed ethnic and religious minorities to new dangers.... Now, the people of the region have taken exciting first steps toward democracy—but if they hope to consolidate their gains, they cannot trade one form of repression for another.

The Report's Executive Summary identifies seven types of threats to religious freedom around the world:  active state repression and impunity; violent extremist attacks; apostasy and blasphemy laws; repression of religious minorities; anti-Semitism; restrictions on Muslim attire and expression; and restrictions derived from security and related concerns. CNN has more on the release of the Report.

Assistant Secretary Michael Posner and Ambassador at Large for International Freedom Suzan Johnson Cook also spoke to the press. (Full text of remarks.)  Posner announced that Secretary Clinton has named eight countries as the worst religious liberty offenders by designating them "Countries of Particular Concern." These are the first CPC designations by the Obama administration. They are the same nations that were named previously: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. However, In the past, the Administration had given waivers under the International Religious Freedom Act to Saudi Arabia and Uzbekistan. (See prior posting.)  Secretary Posner made no mention of similar waivers this year in his remarks.

In April the U.S. Commission on International Religious Freedom had recommended in addition to these eight countries, that Egypt, Iraq, Nigeria, Pakistan, Turkmenistan, and Vietnam be added. (See prior posting.)  In a press release yesterday, USCIRF Chairman Leonard Leo said that the Commission welcomed the State Department's action, and "respectfully urged" Secretary Clinton to consider adding the other six countries.

9th Circuit Upholds School's Order For Teacher To Remove Religious Banners

In Johnson v. Poway Unified School District, (9th Cir., Sept. 13, 2011), the 9th Circuit Court of Appeals rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. Discussing the free speech claim, the court said, in part:

We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom. The answer is clear: it does not.

When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.”...  Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.

In reaching its conclusion, the 9th Circuit reversed a decision by a California federal district court. (See prior posting.) SF Appeal reports on yesterday's 9th Circuit decision.

UPDATE: In a separate unpublished opinion, the 9th Circuit also rejected the teacher's claims under the California constitution. Johnson v. Poway Unified School District, 2011 U.S. App. LEXIS 18992 (9th Cir., Sept. 13, 2011).

Lawsuit Challenges Schools' Ten Commandments Displays

The ACLU of Virginia announced yesterday that it had filed suit in federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. The complaint (full text) in Doe 1 v. School Board of Giles County, (WD VA, filed 9/13/2011) recounts the sequence of events which led to the filing of the Establishment Clause challenge. For over 10 years, a copy of the Ten Commandments had been displayed in each school. When the Freedom from Religion Foundation filed an objection, the superintendent removed the displays and replaced them with copies of the Declaration of Independence.  However, this led to widespread community objections which, eventually, led to the school board by a split vote authorizing the posting of a broader display that includes the Ten Commandments, a picture of Lady Justice, the Star-Spangled Banner, the Bill of Rights,, the Virginia Statute for Religious Freedom, the Declaration of Independence, the Virginia Declaration of Rights, the Mayflower Compact, and the Magna Carta. (See prior posting.) The complaint alleges that this history demonstrates that any alleged secular purpose for the displays is a sham. AP reports on the filing of the lawsuit.

Victim Advocates File Urging International Criminal Court To Prosecute Pope and 3 Cardinals

The New York Times reports that yesterday the Center for Constitutional Rights CCR) representing Survivors Network of Those Abused By Priests (SNAP) filed a complaint (full text) with the International Criminal Court in the Hague seeking investigation and prosecution of 4 high level Vatican officials, including Pope Benedict XVI, for their roles in covering up sex abuse by priests. The 3 others charged are all Cardinals holding important positions in the Vatican, including American Cardinal William Levada. The complaint alleges that the ICC has jurisdiction because the sexual abuse amounts to torture and crimes against humanity. A CCR press release announcing the filing of the complaint reported that: "SNAP and CCR are embarking on a 12-city tour throughout Europe to demand local diocese turn over relevant documents and encourage other victims of sexual abuse by clergy to come forward and provide additional evidence to add to the complaint." The complaint is already accompanied by some 20,000 pages of supporting documents.

5th Circuit Allows Religious Discrimination Claim To Proceed

In Dediol v. Best Chevrolet, Inc., (5th Cir., Sept. 12, 2011), the U.S. 5th Circuit Court of Appeals reversed a Louisiana federal district court and refused to dismiss a Title VII discrimination claim by a former employee of an auto dealership alleging a hostile work environment based on both age and religion.  Milan Dediol's manager refused to permit him to take off work to volunteer at a church event, and subsequently made a string of harassing remarks directed at Dediol's religious beliefs. The court also for the first time in the Circuit held that a hostile work environment claim may be based on age-related harassment.

10th Circuit Hears Arguments On Anti-Shariah Amendment As Muslim Group Endorses Michigan's Bill

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in Awad v. Ziriax, a case challenging the constitutionality of Oklahoma's voter-approved constitutional amendment that bans state courts from considering international law or Shariah law. (See prior related posting.) According to the Oklahoman, Questions from the 10th Circuit bench included ones as to why Shariah law was singled out and whether the ban would affect preferences of individuals of other religions in child custody cases.

Meanwhile, RNS reports that an umbrella group known as the American Islamic Leadership Coalition is supporting a proposed Michigan law (HB 4769) that would ban courts from enforcing foreign law "if doing so would violate a right guaranteed by" the U.S. or Michigan constitution. The ALIC statement (full text) reads in part:

we stand together as a diverse coalition in support of any legislation that serves to protect and integrate our communities into the fabric of this great nation, by strengthening our accountability to the laws of the land, and the constitutions of the various states in which we live.

As American Muslims we are conscious of the fact that ...  Islamists ... in the U.S. are trying their best to portray any opposition to manifestations of shari‘ah law as “racism” and “discrimination against Muslims.” However, as a coalition of traditional, liberal and secular Muslim Americans, we denounce this fear-mongering and playing of the race card, which only serves to mask the Islamists’ highly politicized agenda.

ADL Supports World Trade Center Cross

As previously reported, in July the American Atheists filed a lawsuit challenging on Establishment Clause grounds the moving of cross-shaped steel beams found in the rubble of 9-11 and known as the World Trade Center Cross to the site of the National September 11 Memorial. Now a leading advocate of church-state separation, the Anti-Defamation League, has issued a statement supporting installation of the cross at the memorial. The ADL said in part:

Allowing this cross to be included in the memorial along with other artifacts found at the site does not constitute government endorsement of a religious message. Rather, it is an acknowledgement that these beams – part of the infrastructure of one of the towers – acquired historical significance by giving comfort to many who lost loved ones in the attacks, as well as those who spent days and weeks sifting through the ash and debris.

Amish Men Sentenced To Jail For Refusing To Pay Fines

In Mayfield, Kentucky yesterday, a state trial court judge sentenced nine men who are members of the Old Order Swartzentruber Amish sect to terms between 3 and 10 days in jail for refusal to pay fines imposed on them.  The fines of $148 to $600 grew out of defendants' refusal to display bright orange-red safety triangles on the backs of their horse-drawn buggies. According to the Louisville Courier-Journal, the defendants believe paying the fine would amount to complying with the law that violates their religious principles against wearing bright colors or trusting in man-made symbols for their safety. In June the Kentucky Court of Appeals upheld their sentences (see prior posting), and an appeal is pending in the Kentucky Supreme Court. Graves District Court Judge Deborah Hawkins Cook has 44 additional cases involving similar charges still on her docket. The county jail has ordered special dark-colored jump suits for the Amish men because of their religious objections to wearing the usual orange ones. One of the nine defendants avoided jail when a friend paid his fine.

Mississippi Supreme Court Rejects Challenge To "Personhood" Initiative On Ripeness Grounds

In Hughes v. Hosemann, (MI Sup. Ct., Sept. 8, 2011), the Mississippi Supreme Court rejected on ripeness grounds an attempt to remove from November's ballot an initiative measure that would define "person" in the state constitution as including "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The court held that: "Pre-election challenges of voter initiative proposals are subject only to the review of the sufficiency of the petition itself (i.e., its form) and not its constitutionality (i.e., its substance)."

A dissent by Justice Kitchens, joined by Justice King, argued that:

Measure 26 is defective ... because the text of the measure purports to add a new section to this state’s Bill of Rights and to modify the meaning of two words which appear some twenty times in our Bill of Rights. This is in direct contravention of Section 273(5)(a) of our state constitution, which reads: “The initiative process shall not be used [f]or the proposal, modification or repeal of any portion of the Bill of Rights to this Constitution.”

Responding to this argument, the majority writes:

The dissent worries that Measure 26 “seeks to modify the definition” of “person or persons” as they appear in the Mississippi Constitution. But those terms have never been defined. Therefore, Measure 26 cannot modify a definition that does not now exist.

Kentucky Counties Borrow Funds To Pay Winners' Legal Fees In 10 Commandments Litigation

Two Kentucky counties that were involved in an unsuccessful 11-year battle all the way to the U.S. Supreme Court over posting a Ten Commandments display have now had to borrow funds to pay legal fees of the prevailing plaintiffs.  Saturday's Lexington (KY) Herald Leader reports that  Pulaski County has sent the ACLU a check for $231,662, while McCreary County has yet to pay its share-- which will be somewhat larger as interest continues to accrue.  Pulaski County will repay its bank loan this year, but McCreary County-- which is in worse financial condition-- will take longer to do so. The counties plan to write national religious organizations seeking donations to help them with the repayments. Meanwhile, in the Pulaski County Courthouse, a frame displays a sign reading: "The Ten Commandments were proudly displayed in this frame. Removed by Judge Jennifer Coffman, Eastern Ky. District Federal Court....", and then referring to the appellate decisions upholding the removal.

Chief Rabbis Raise Issue of Religious Accommodation In Israeli Army

Yesterday's Jerusalem Post reports on a problem of accommodating religious beliefs of Orthodox Jewish soldiers in the Israeli army.  At the traditional annual meeting of Israel's two chief rabbis with IDF Chief of General Staff Lt.- Gen. Benny Gantz, the rabbis raised the issue of exempting religious male soldiers from military events that involve women singing.  Orthodox Jewish law prohibits men from hearing women sing-- a prohibition referred to as kol isha. Last week, nine officer cadets walked out of an army event that featured a performance by women soldiers, and some refused to return even though their commander ordered them to do so.  Four of the soldiers were expelled from officer training school over the incident. Lt. Gen. Gantz said he was reviewing the issue.

Recent Articles of Interest

From SSRN:

• Claudia E. Haupt, Transnational Nonestablishment, (George Washington Law Review, Forthcoming).
• Frederick Mark Gedicks, Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols, (Nevada Law Review, 2011).
• Roland Pierik and Wibren Van der Burg, What is Neutrality, (Amsterdam Law School Research Paper No. 2011-20, 2011).
• Kenneth Lasson, Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment, (in "Global Antisemitism: A Crisis of Modernity," Forthcoming, 2012).
• Rob E. Atkinson, The Future of Philanthropy: Questioning Today’s Orthodoxies, Re-Affirming Yesterday’s Foundations, (FSU College of Law, Public Law Research Paper No. 542, 2011).

From SmartCILP:

• Pierre M. Gaunaurd, Hdeel Abdelhady and Nabil A. Issa, Islamic Finance, 45 The International Lawyer 271-285 (2011).
• Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepperdine Law Review 945-1020 (2011).

10th Circuit Rejects Challenge To Polygamy Ban As Frivolous

In Adgeh v. Oklahoma, (10th Cir., Sept. 8, 2011), the U.S. 10th Circuit Court of Appeals in a brief opinion (after refusing to hear oral argument in the case) rejected as frivolous a claim that Oklahoma's statute barring polygamy is unconstitutional. Based on that finding, the court refused to allow plaintiff to proceed in forma pauperis.  Plaintiff's original complaint had primarily cited Biblical examples of polygamy as a basis for his claim. The decision is non-precedential, but may be cited for any persuasive value it has. This is important because another more substantial constitutional challenge to state polygamy laws is pending in the 10th Circuit-- a suit filed in July by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute. (See prior posting.)  [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

Arizona Police Charge Phoenix Goddess Temple Was Prostitution Operation

In Arizona last week, Maricopa County officials announced the arrest and indictment of 18 individuals in connection with a house of prostitution operating in two locations under the guise of a religious organization. Male and female "practitioners" were charged with performing sexual acts in exchange for monetary "donations" at the Phoenix Goddess Temple in Phoenix and Sedona.  They claimed to be providing "Neo Tantric" healing therapies. Saturday's International Business Times reports further on the arrests.

Recent Prisoner Free Exercise Cases

In Elfand v. County of Sonoma, 2011 U.S. Dist. LEXIS 99173 (ND CA, Aug. 29, 2011), a California federal district court permitted a Jewish inmate to proceed with his claim that the Sonoma county jail has a policy of not providing for temporary religious meals while an inmate is attempting to request them, and that this caused him not to receive kosher meals for approximately one month.

In Lefler v. McKee, 2011 U.S. Dist. LEXIS 99256 (WD MI, Sept. 2, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 99232, Aug. 10, 2011) and dismissed an inmate's complaint that the prison's chaplain failed to organize a Seventh Day Adventist religious group in a timely manner and when he did he scheduled the group to meet on Thursdays instead of Saturdays.

In Grimes v. Tilton, 2011 U.S. Dist. LEXIS 99944 (SD CA, Sept. 6, 2011), a California federal district court refused to grant defendants summary judgment on qualified immunity grounds in a Christian inmate's First Amendment challenge to prison regulations-- subsequently modified-- that called for verification of an inmate's religious beliefs before the inmate would be provided with a vegetarian diet.

In Dawson v. California Department of Corrections and Rehabilitation, 2011 U.S. Dist. LEXIS 100287 (ND CA, Sept. 7, 2011), a California federal district court dismissed an inmate's free exercise and equal protection challenges to regulations barring family visits for prisoners serving a life sentence without a parole date, or for prisoners housed in heightened security status. Plaintiff had claimed that the regulations prevented him and his wife "from 'consummating their marriage,' which has 'placed he and his wife on a path to temptation and sin, and ultimately divorce, which also is in contradiction with his faith.'"

In Daley v. Lappin, 2011 U.S. Dist. LEXIS 100624 (MD PA, Sept. 7, 2011), a Pennsylvania federal district court dismissed a complaint by a Rastafarian inmate who complained that he was denied an "Ital" (vegan) diet consistent with his religious beliefs.

In McCray v. McElvogue, 2011 U.S. Dist. LEXIS 101034 (D SC, Sept. 1, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 100879, July 20, 2011) and dismissed a Muslim inmate's complaint that he cannot purchase religious oils, and that prayer rugs are not sold at the prison commissary. His complaint he was not permitted to speak to Muslim instructors was contradicted by a fellow-inmate's affidavit.

In Phillips v. Ayers, 2011 U.S. Dist. LEXIS 100459 (CD CA, Sept. 7, 2011), a California federal district judge adopted a magistrate's amended report and dismissed a Muslim inmate's claims. The magistrate's report-- apparently before it was amended-- is at 2011 U.S. Dist. LEXIS 100461 (April 8, 2011). It rejects claims that plaintiff's rights were violated by rules prohibiting use of the prison chapel for group prayers unless supervised by staff or a volunteer chaplain.

In O'Neal v. San Bernardino Sheriff's Department, 2011 U.S. Dist. LEXIS 100460 (CD CA, Sept. 7, 2011), a California federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 143671, Dec. 6, 2010) and dismissed with leave to amend a pre-trial detainee's claim that his free exercise rights were violated because of problems with receiving sufficient food in his vegan diet. Plaintiff failed to allege a connection between veganism and his Baptist faith.

In Strickland v. Sumner County Jail, 2011 U.S. Dist. LEXIS 101533 (MD TN, Sept. 8, 2011), a Tennessee federal district court dismissed claims by a jail inmate that his 1st Amendment rights were violated by his being "forced" to listen to Christian teachings.

President's Ground Zero Remarks Are Psalm 46

In the wake of criticism by some religious leaders that clergy were not included in the official memorial ceremony at the World Trade Center site in New York (New York Times, 9/8), President Obama's remarks at the ceremony consisted solely of reading Psalm 46. Neither in speaking, nor in the White House release of the official transcript of the President's remarks, was the source of the text identified. Last week Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said of the mayor's decision on who would participate in the ceremony: "Unfortunately Mayor Bloomberg's decision demonstrates the mindless secularist prejudice of the political establishment on our nation's Eastern Seaboard."

President Declares National Days of Prayer and Remembrance

In a Presidential Proclamation issued Friday, President Obama designated Friday, September 9 through Sunday, September 11, 2011, as National Days of Prayer and Remembrance.  The Proclamation reads in part:

I ask that the people of the United States honor and remember the victims of September 11, 2001, and their loved ones through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities. I invite people around the world to participate in this commemoration.

In a separate Proclamation, implementing Congressional resolutions, the President also declared today to be "Patriot Day and National Day of Service and Remembrance."