When Does A Home Bible Study Group Become A "Church"?

Pacific Justice Institute announced last week that it is filing an appeal with an Orange County California Superior Court of a decision by a San Juan Capistrano (CA) hearing officer requiring Bible study groups to obtain a conditional use permit to meet in a private home. According to The Blaze on Monday:

City officials ... say Chuck and Stephanie Fromm are in violation of municipal code 9-3.301, which prohibits “religious, fraternal or non-profit” organizations in residential neighborhoods without a permit. Stephanie hosts a Wednesday Bible study that draws about 20 attendees, and Chuck holds a Sunday service that gets about 50.

Homeowners Chuck and Stephanie Fromm, were fined $300 by the hearing officer, and threatened with $500 fines for future violations. [Thanks to Michael Kessler for the lead.]

"Don't Ask, Don't Tell" Formally Ended Yesterday

Yesterday, the military's "Don't Ask, Don't Tell" policy was finally and formally repealed. Under the law passed last year (see prior posting), repeal came 60 days after formal certification by top officials that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention.  In a statement (full text) marking the event, President Obama said:

As of today, patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love. As of today, our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members. And today, as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.

A posting yesterday afternoon on the White House blog by Presidential adviser Valerie Jarett says that: "Already, gay and lesbian men and women have sent in their applications to proudly – and openly – serve the country we all love."  The Wall Street Journal reports that the Defense Department has published revised regulations reflecting DADT repeal.

Louisiana Presbyterian Church Keeps Control of Its Property [Corrected]

In Carrollton Presbyterian Church v. Presbytery of South Louisiana of the Presbyterian Church (USA), (LA App., Sept. 14, 2011), a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name.  It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. That provision of church law specifies that property titled in the name of the congregation is nevertheless held in trust for the parent church. A provision in the Church's Book of Order, however, allowed congregations that were part of the Presbyterian Church in the United States, when it reunited with the United Presbyterian Church in the USA, to opt out of the provision. Carrollton had opted out. The court went on to say that even if Carrollton had not opted out, neutral Louisiana trust law would apply to this case.

The court also upheld against 1st Amendment challenge provision in the injunction that were designed to prevent evasion of its terms.  These included initiating disciplinary actions against Carrollton officials because of the property dispute, dissolving the church in order to take over its property, or otherwise interfering with congregational personnel in ways that relate to use of the property. This does not prevent non-pretexutal ecclesiastical actions. Virtue Online comments on the decision, comparing it to similar cases in the Episcopal Church arising under the so-called Dennis Canon. AnglicansUnited has background on the case.

Court To Unseal Recording of Proposition 8 Trial

In Perry v. Schwarzenegger, (ND CA, Sept. 19, 2011), a California federal district court judge agreed to unseal the digital recording of last year's non-jury trial last on the constitutionality of California's Proposition 8-- the state constitutional amendment barring same-sex marriage.  Focusing on the importance of transparency of judicial proceedings, the court rejected as unsupported conjecture the argument that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings.The court, however, stayed the effectiveness of its order until Sept. 30 to give the parties time to file an appeal and seek a further stay. AP reports on the decision.

En Banc Review To Be Sought In Classroom Banner Case

In a press release yesterday, the Thomas More Law Center announced that it will petition the 9th Circuit for en banc review in Johnson v. Poway Unified School District. In the case, a 3-judge panel of the 9th Circuit rejected claims by a high school calculus teacher that his free speech rights, as well as the Establishment Clause and Equal Protection clause,were violated when his school district required him to remove large banners posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

9th Circuit: Fair Housing Act Religious Exemption Protects Homeless Shelter

In Intermountain Fair Housing Council v. Boise Rescue Mission, (9th Cir., Sept. 19, 2011), the U.S. 9th Circuit Court of Appeals held that the religious exemption in the federal Fair Housing Act applies to shield from religious discrimination claims an organization that sponsors Christian homeless shelters and a drug treatment program.  Thus no claim lies against the Boise Rescue Mission for requiring participants in its drug treatment program to become Christian before graduating. Similarly no religious discrimination claim lies because of the shelter's practice of feeding those who attend the shelter's religious services first before those who do not attend are fed. AP reports on yesterday's decision. (See prior related posting.) [Thanks to Becket Fund for the lead.]

Pakistan Court Issues Temporary Ban on Facebook; Suit Seeks Broader Ban

In Pakistan, the Lahore High Court is hearing a lawsuit seeking a permanent ban in the country on access to the social netwrking site Facebook because it has hosted a page titled "2nd Annual Draw Muhammad Day-May 20, 2011." According to Pakistan Today, yesterday, the court issued a temporary order while the case is pending, requiring the Ministry of Information and Technology to block all websites that spread religious hatred, especially Facebook. However no search engines, such as Google, are to be blocked. The lawsuit, filed by a public interest litigation firm, asks the court to require the federal government to create a permanent authority having legal status that would monitor websites across the world and ban those that blaspheme any religion or their holy personalities. Meanwhile a search of Facebook suggests that the offending page has already been taken down.

Egyptian Copts Seeking Divorce Plan To Resign To Invoke Legal Loophole

Under Egyptian personal status law, the Coptic Orthodox Church controls divorce of couples where both are members of the Church.  Al-Ahram this week reports that hundreds of Copts who are seeking a divorce plan to gather in front of the Ministry of Justice to collectively resign membership in the Church.  Under Egyptian law, if a non-Muslim couple is of different religious denominations, then Islamic Shariah law applies to their divorce.  This will permit the couple to get around the Coptic Church's limitation of the grounds for divorce to adultery. Some are calling for the Ministry of Justice to permit notaries to provide civil marriages and divorce.

Maldives Promulgates New Regulations To Prevent Extremist Islamic Teachings

In the Maldives, the government has published new regulations (full text) under the 1994 Protection of Religious Unity Act in the country's official gazette. According to yesterday's Minivan News, the new regulations, which have undergone numerous revisions since the original draft issued last year, are aimed at preventing the spread of extremism. Under the regulations, only individuals approved by the Ministry of Religious Affairs may deliver religious sermons or lectures.  Among the requirements for approval is that the individual have obtained a degree from one of 36 specified colleges or universities in 12 countries.  The regulations also set out 12 principles that must govern any religious sermons or advice. The include requirements that the person:

(f) Not engage in any talk that may create hatred and anger among the people, nor disseminate any information that incites to violence of any kind.

(g) Not engage in any talk that may be interpreted as racial and gender discrimination, nor prevent people from education or health services in the name of Islam. 

(h) When explaining issues contested among scholars, clearly explaining each scholar’s individual stand on the contested issue; and if the licensed preacher takes a personal side on the issue, clearly explaining to his/her audience why and based on what criteria and evidence he/she is basing his/her personal judgment on that particular issue.

The regulations also bar propagating any faith other than Islam and displaying in public books on other religions.  The media may not  broadcast programs that humiliate Allah, the Qur'an, the Sunnah of the Prophet Muhammad  or Islam.

Both the Islamic Foundation of the Maldives and the Adhaalath Party (that controls the Islamic Ministry) have objected to the new regulations.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Witchcraft and the Constitution, (T.W. Bennett, eds, Traditional African Religions in South African Law p. 156, UTC Press, 2011).
• Mohammad Fadel, A Tragedy of Politics or an Apolitical Tragedy?, (Journal of the American Oriental Society, Vol. 131, No. 1, 2011).
• Kenneth Lasson, Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers, (Baltimore Jewish Times, April 8, 2011).
• Tokufumi Joshua Noda, The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use, (Boston College Law Review, Vol.1, 2011).

Engage, Vol 12 No. 2:

• Robert F Wilson and Jana Singer, Same-Sex Marriage and Conscience Exemptions.
• Richard W. Garnett and Kurt T. Lash, The Establishment Clause.
• Gregory S. Baylor and Ronald Chen, Did the Supreme Court Properly Decide Christian Legal Society v. Martinez?
• William L. Saunders, European Court of Human Rights Finds No Right to Abortion Under European Human Rights Convention.

Rubashkin's Conviction, Sentence Upheld By 8th Circuit

In United States v. Rubashkin, (8th Cir., Sept. 16, 2011), the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior related posting.)  Charges against Rubashkin alleging hiring of illegal aliens in his meat packing plant were ultimately dropped. The 8th Circuit rejected claims of bias toward Rubashkin, objections to scheduling of trial dates and to evidentiary rulings and certain jury instructions. It also concluded that the trial court was not obligated to adopt a downward departure from the Sentencing Guidelines based on Rubashkin's past charitable acts and family obligations. Friday's Des Moines Register reported on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Vinning-El v. Evans, (7th Cir., Sept. 16, 2011), the 7th Circuit dismissed a claim for supervisory liability against a rison warden on plaintiff's claim that as a Moorish Science adherent, he should be entitled to a vegan diet. The court remanded the question of whether the prison chaplain had qualified immunity in connection with the denial, holding that the issue depended on whether the chaplain's denial was based on a good faith finding of insincerity of plaintiff's religious belief, or was instead based on the conclusion that the Moorish Science religion does not make a vegan diet a tenet of its faith.

In Hopkins v. Apadaca, 2011 U.S. Dist. LEXIS 99145 (WD PA, Sept. 2, 2011),  a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 101806, Aug. 3, 2011) and dismissed a claim by an inmate, who for religious reasons was a vegetarian, who complained that he had high cholesterol but was kept on a high cholesterol diet that included peanut butter.

In Lewis v. Snyder, 2011 U.S. Dist. LEXIS 102520 (ND IL, Sept. 12, 2011), an Illinois federal district court rejected constitutional and statutory challenges by a Nazarite inmate to the requirement that he cut his hair rather than wear his hair in dreadlocks. The court also rejected complaints that his cut dreadlocks were not returned to him and that he could not participate in religious feasts because he had no religious designation on his identification card.

In Gaston v. Redmon, 2011 U.S. Dist. LEXIS 102462 (ED CA, Sept. 11, 2011), a California federal magistrate judge recommended dismissing an inmate's claim that his free exercise rights were violated when an officer refused to place a gold chain and medallion taken from him on a property form.

In Ciempa v. Jones, 2011 U.S. Dist. LEXIS 102580 (ND CA, Sept. 9, 2011), a California federal district court rejected an inmate's claim that his rights under RLUIPA were violated when he was not permitted to possess the book Stoic Warriors. However, the court ordered prison officials to submit a plan that would allow space and time in the prison chapel for the Five Percent Nation of Gods and Earths to engage in religious exercise, or else to demonstrate to the court that a total ban is necessary for institutional security.

In Shabazz v. Virginia Department of Corrections, 2011 U.S. Dist. LEXIS 102194 (ED VA, Sept. 8, 2011), a Virginia federal district court dismissed a number of plaintiffs who had failed to exhaust their administrative remedies as to complaints that Nation of Islam prisoners were being denied access to various religious activities and rights. The court ordered defendants to respond as to exhaustion on one plaintiff's claims.

In Parks v. Smith, 2011 U.S. Dist. LEXIS 102453 (ND NY, Sept. 9, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 102460, March 29, 2011) and dismissed RLUIPA and free exercise claims by an inmate who was barred from sending out a photo to a personal ad service. The court held that authorities had a compelling interest and used the least restrictive means in preventing the inmate from mailing a photo of himself wearing red pants and making a hand gesture that resembled one used by the Bloods gang, even though the inmate claimed it was a religious meditation gesture.

In Barros v. Minnick, 2011 U.S. Dist. LEXIS 103827 (ED CA, Sept. 13, 2011), a California federal magistrate judge found inadequate allegations to support a free exercise claim in an inmate's charge that defendants disposed of a cassette tape Bible recording belonging to him.

In Mitchell v. Cate, 2011 U.S. Dist. LEXIS 103843 (ED CA, Sept. 13, 2011), a California federal magistrate judge allowed an inmate to proceed against some of the defendants he named on a claim that his rights were infringed by keeping him from all participation in religious activity during his 8 months of administrative segregation.

In Daniels v. Bossier Parish Medium Security Facility, 2011 U.S. Dist. LEXIS 103891 (WD LA, Sept. 14, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103905, Aug. 23, 2011) and dismissed as frivolous free exercise and equal protection claims by a Muslim inmate. Plaintiff contended that there are no call-outs for Muslims to pray on Fridays, but there are Christian call-outs. He also alleged that Christian inmates receive Bibles without charge from preachers, but Muslim inmates can obtain copies of the Qur'an only by purchasing them.

In Zimmerman v. Jones, 2011 U.S. Dist. LEXIS 103714 (D CO, Sept. 14, 2011), a Colorado federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103592, May 26, 2011) and dismissed plaintiff's complaints regarding sub-par kosher meals and a lack of Jewish supplies.

In Griffin v. Alexander, 2011 U.S. Dist. LEXIS 104000 (ND NY, Sept. 14, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 104905, Aug. 25, 2011), and dismissed an inmate's free exercise and RLUIPA challenge to denial of parole. The court however gave plaintiff permission to refile the challenge as a habeas corpus petition. At issue was plaintiff's claim that the parole board wanted him to enter a sex offender treatment program that would require him to falsely admit a sexual act he did not commit in violation of his religious obligation as a Jehovah's Witness not to lie. The court found that this claim, as currently pleaded, lacked merit.

Air Force Chief of Staff Cautions Commanders Against Endorsing Religion

Yesterday's Air Force Times reports on a Sept. 1 Memorandum (full text) issued by Air Force Chief of Staff Gen. Norton Schwartz. titled "Maintaining Government Neutrality Regarding Religion." The memo reads in part:

Leaders at all levels ... must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates or to extend preferential treatment for any religion....

Chaplain Corps programs, including activities such as religious studies, faith sharing and prayer meetings are vital to commanders' support of individual Airmen's needs and provide opportunities for the free exercise of religion. Although commanders are responsible for these programs, they must refrain from appearing to officially endorse religion.... Therefore, I expect chaplains, not commanders, to notify Airmen of Chaplain Corps programs.

The memo appears to be directed at situations such as last February's Air Force Academy National Prayer Luncheon which, while financed by the Chapel Tithes and Offerings Fund, was promoted by the command structure. (See prior posting.) A suit challenging the Luncheon was dismissed on jurisdictional grounds.

Same-Sex Couple To Sue B and B's For Rejecting Civil Union Ceremony

In Illinois, same-sex couple Tom and Mark Walthen are about to sue two bed-and-breakfasts after the establishments refused to rent space to the couple for their civil union ceremony.  According to yesterday's Chicago Tribune, the owner of one of the B and B's-- Timber Creek Bed and Breakfast in Paxton-- explicitly invoked his religious freedom rights.  He e-mailed the couple: "We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate." The Illinois Department of Human Rights found "substantial evidence" of a civil rights violations in the refusal by both B and B's, freeing the couple to file suit.  They plan to do so shortly.

Rabbinical School Dean Entitled To New York Property Tax Exemption

In In re Application of Renni Altman v. Assessment Review Commission of the County of Nassau, (Nassau Co. NY Sup. Ct., Sept. 6, 2011), a New York trial court held that a rabbi who was employed as Associate Dean of Hebrew Union College and Director of its Rabbinical School was entitled to the $1500 per year real estate tax exemption granted by New York law (RPTL Sec. 460) to clergy.  Nassau County argued that Rabbi Altman's position was administrative, not religious, and thus she was not entitled to the exemption. The court however held that her administrative duties were de minimis and were interconnected with her rabbinic duties that included addressing the professional development and spiritual needs of rabbinic students. Moreover the statute only requires that the member of the clergy be engaged in work assigned by the denomination in order to qualify for the exemption. [Thanks to Steven H. Sholk for the lead.]

Court Refuses To Decide Church Governance Dispute

In Rosenberger v. Jamison, (FL App., Sept. 16, 2011), a Florida state appellate court held that deciding a dispute about governance of the First Baptist Church of Micanopy would unconstitutionally entangle the court in a religious controversy.  The church's governing documents were changed to move it from a congregational-led church to one governed by elders. Four opponents of the change were terminated from membership.  They sued to reverse their expulsion and revoke the change in the church's governing documents, claiming that these actions were taken without following the procedures set out in the then-existing Articles and Bylaws of the church. The court said:

[T]he issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church....

[E]xercising jurisdiction in this instance would be tantamount to “intervening on behalf of [a group] espousing particular doctrinal beliefs.” We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

No Attorneys' Fees Awarded In Litigation Over Bible Sign

In Signs for Jesus v. Town of Chichester, 2011 U.S. Dist. LEXIS 103430 (D NH, Sept. 13, 2011), a New Hampshire federal district court refused to grant costs and attorneys' fees under 42 USC Sec. 1988 to a group that ultimately prevailed at the town Planning Board and obtained permission to put up an electronic message sign to display Christian Bible verses. Plaintiffs sued after an initial refusal of their site plan, claiming free exercise and RLUIPA violations. (See prior posting.) Subsequently the Planning Board reversed its decision and approved the sign (see prior posting), and the court approved a consent decree dismissing the lawsuit.  Now, in a dispute over reimbursement of attorneys' fees, the court held that plaintiffs were not "prevailing parties" under Sec. 1988 because they received no material relief from the court.  The court said:

While plaintiffs have received site-plan approval (and a building permit), the Consent Decree awarded them substantially none of the relief they sought in their complaint. The Planning Board approved plaintiffs' site plan a month before the Consent Decree became effective and, for its part, the Consent Decree provided plaintiffs with no injunctive relief, no declaratory relief, no damages, no certiorari order, and no determination regarding the merits of plaintiffs' appeal of the ZBA's decision.

Suit Claims Israeli Independence Day Ceremony In Town Hall Violated Establishment Clause

The Greenwich (CT) Times yesterday reported that a candidate in next year's Democratic primary for U.S. Senate, Lee Whitnun, has filed suit in federal district court seeking a declaratory judgment that Greenwich, Connecticut acted unconstitutionally when it permitted the Jewish Federation of Greenwich to use the city's town hall on a Sunday last May for a celebration of Israel's Independence Day.  Along with the Independence Day celebration, a Bar Mitzvah ceremony for a visiting exchange student from Israel was held at town hall.  The student missed having the ceremony at the usual age of 13 because of the death of his father.

The complaint (full text) in Whitnum v. Town of Greenwich, (D CT, filed 9.8/2011), alleges that the arrangement violates the Establishment Clause as well as the "no preference" clause of the Connecticut constitution (Art. Seventh). The complaint alleges that the Independence Day celebration resulted in inextricably entangling traditional town hall paraphernalia with religious symbols such as the Star of David and "many displays actively promoting an explicitly religiously Jewish and politically Zionist world view." It contends that "to any reasonable observer, the Greenwich Town Hall functioned as an arm of the local synagogue."

The Executive Director of the UJA Federation of Greenwich defended the event saying: "The Israel celebration has been taking place at Town Hall for decades. I believe that other groups celebrate other national independence days. The celebration of Israeli Independence Day is not a religious event."  The  Jewish Federation paid a $351 custodial fee for use of the building for the event.

France Opens Former Fire House For Muslim Worship Site

AP reports that France's Interior Minister Claude Gueant has come up with a temporary solution to the shortage of space in French mosques.  Particularly in two mosques in northern Paris, so many Muslims wish to gather for Friday prayers that they are unable to fit into the buildings.  In a country where strong principles of secularism result in religion being treated as a private affair not manifested in public, the overflow crowds of Muslims have for years prayed on the public sidewalks outside the mosques.  On Wednesday, the French government came to an agreement with Muslim leaders for the outfitting of a 20,000 sq. ft. former fire house for use as two prayer halls.  This is seen as a temporary solution pending construction of an Islamic cultural center with a large prayer hall in Goutte d'Or. A tentative 2013 completion date has been set for the center.

FBI Stops Anti-Muslim Lectures To Trainees

Yesterday AP reported that the FBI is making policy changes to assure that instruction at its training academy is consistent with FBI policy. The change grows out of disclosures that for three days last April-- until stopped by the FBI-- an academy instructor had given lectures critical of Islam.  The lecturer told trainees that the more devout a Muslim is, the more likely he is to be violent. [Thanks to Alliance Alert for the lead.]