Cert. Denied In Utah Highway Patrol Memorial Cross Cases, Over Thomas Dissent

Today the U.S. Supreme Court denied certiorari in Utah Highway Patrol Association v. American Atheists, Inc,. (Docket No. 10-1276), and a companion case Davenport v. American Atheists, Inc., (Docket No. 10-1267) (cert. denied 10/31/2011).  Justice Thomas wrote a 19-page dissent to the denial of cert. (Full text of order and Thomas, J's dissent at pg. 38 of Order List). In the case, a 3-judge panel of the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. (See prior posting.)  The full 10th Circuit denied en banc review by a 5-4 vote. (See prior posting.) In his dissent to the denial of cert., Justice Thomas wrote:

Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles..... Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess, I would grant certiorari.....

Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated, the Clause only prohibits “‘actual legal coercion,’” ..., the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought.

Israeli Court Dismisses Indictment Against Priest In Encounter With Yeshiva Student

Today's Jerusalem Post reports that an Israeli Magistrate's Court last week dismissed an indictment against a Greek Orthodox priest who punched a Jewish yeshiva student in the face after the student spat on the ground toward the priest as he passed. The incident took place in Jerusalem's Armenian Quarter. The Jerusalem Magistrate's Court invoked a provision calling for dismissal of an indictment if it "contravenes the essence of the principles of justice and fairness."  Judge Dov Pollock in his ruling said that the dismissal came after evidence that for years police have not acted to stop daily incidents of members of the ultra-Orthodox community spitting at members of the Christian clergy. The spitting is a criminal offense, and the court said it is intolerable that a Christian should be demeaned because of his faith.

Recent Articles of Interest

From SSRN:

• Avishalom Westreich, The Wife's Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics, (Journal of Jewish Studies, Vol. 62, pp. 340-63, 2011).
• Habib Siddiqui, Muslim Identity and Demography in the Arakan State of Burma, (October 26, 2011).
• Nora El-Bialy and Moamen Gouda, Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy, (May 9, 2011).
• Grainne De Burca, The Trajectories of European and American Antidiscrimination Law, (American Journal of Comparative Law, Forthcoming).
• Brian H. O'Beirne, The Explanatory Gap in John Finnis' Theory of Natural Law, (Trinity College Law Review, Vol. 14, 2010).

Monument To Jewish Chaplains Dedicated At Arlington National Cemetery

The Washington Post reports on last week's dedication at Arlington National Cemetery of a monument to 14 Jewish military chaplains who died while serving in the U.S. military. The monument was placed on Chaplains' Hill where monuments for Catholic and Protestant chaplains already stand. The cost of the new monument was funded privately. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Servicemembers Sue To Challenge DOMA and Obtain Equal Spousal Benefits

The Servicemembers Legal Defense Network announced last week that it had filed a federal lawsuit on behalf of a number of plaintiffs seeking the same benefits for same-sex spouses of current and former service members as is provided to opposite-sex spouses.  The complaint (full text) in McLaughlin v. United States, (D MA, filed 10/27/2011), asks the court to rule that the Defense of Marriage Act is unconstitutional as applied to military spousal benefits, and that the definition of "spouse" in federal statutes relating to military benefits is likewise unconstitutional. The complaint invokes the equal protection clause,the 10th Amendment's  principles of federalism, the fundamental right to marry, and the bill of attainder clause. Thursday's Christian Post reported on the case. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases-- Summaries Are Back

Note to readers: Last week I experimented with a new format for my weekly review of prisoner free exercise cases-- a format that did not include a fact summary for the cases.  In response I received many more e-mails than I expected from readers who make significant use of the summaries. So I am re-instituting the summaries when the number of recent prisoner cases permit me to do so with a reasonable expenditure of time. Thanks to all who communicated with me.

In Ryidu-x v. Wolfe, 2011 U.S. Dist. LEXIS 123543 (D MD, Oct. 25, 2011), a Maryland federal district court permitted an inmate to move ahead with claims that he was improperly denied commissary, purchasing, and mail privileges, and access to records because of  his use of his legally recognized changed Islamic name.

In Hughes v. El Dorado Correctional Facility, 2011 U.S. Dist. LEXIS 124014 (D KS, Oct. 26, 2011), a Kansas federal district court concluded that an inmate's religious exercise was not substantially burdened when, on a single occasion, a corrections officer interrupted his praying to deliver his food tray.

In Lee v. Oktibbeha County Sheriff's Department, 2011 U.S. Dist. LEXIS 123705 (ND MS, Oct. 25, 2011), a Mississippi federal district court held that no free exercise violation was shown in a single instance in which a prison guard interfered with an inmate's ability to save food from one of his meals to eat in the evening after his fast ended.

In Birkes v. Mills, 2011 U.S. Dist. LEXIS 123742 (D OR, Oct. 25, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S.Dist. LEXIS 123949, Sept. 28, 2011) and dismissed an inmate's complaint that he was not permitted to receive a copy of "The White Man's Bible" that he had ordered through the mail. Among other things, the court found that plaintiff's  White supremacist "Creativity" beliefs do not qualify as a religion. Alternatively it found that his rights were not violated even if it is a religion.

In Warner v. Patterson, 2011 U.S. Dist. LEXIS 124367 (D UT, Oct. 27, 2011), an Odinist (or Asatru) inmate alleged that prison authorities failed to accommodate his religious practices in a number of ways.  The court dismissed all plaintiff's claims except for his claim that denial of fast-boxes was motivated by purposeful discrimination against the Asatru religion.

In Trimble v. Allen, 2011 U.S. Dist. LEXIS 124447 (MD AL, Oct. 26, 2011), an Alabama federal district court denied a preliminary injunction to plaintiff who was seeking to use tobacco in his religious ceremonies in prison.

In Versatile v. Johnson, 2011 U.S. Dist. LEXIS 124541 (ED VA, Oct. 26, 2011), a Virginia federal district court rejected an inmate's claim under RLUIPA that he was impeded in exercising his Nation of Gods and Earths (NGE) religion when prison officials banned NGE texts. It also rejected his complaints regarding processing of his request to have NGE recognized as a religion. Among other things, the court found that NGE is not a religion for purposes of RLUIPA.  UPDATE: The magistrate's recommendations in the case are at 2011 U.S. Dist. LEXIS 126336, June 22, 2011.

White House Responds To Popular Petitions From Its "We the People" Website

As previously reported, a number of the petitions posted on the "We the People" section of the White House website relate to issues of religion and government. The White House promised to respond to any petition that gained 5000 signatures in 30 days. Now responses have been posted to several petitions. Responding to the call to eliminate "under God" from the Pledge of Allegiance and "In God We Trust" from U.S. currency, the White House Director of faith-based partnerships, Joshua DuBois, said:

A sense of proportion should also guide those who police the boundaries between church and state. Not every mention of God in public is a breach to the wall of separation - context matters.

That's why President Obama supports the use of the words "under God' in our Pledge of Allegiance and "In God we Trust' on our currency. These phrases represent the important role religion plays in American public life, while we continue to recognize and protect the rights of secular Americans.

In another posting, the White House refused to comment on a petition calling for "an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin," the convicted Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa.  The White House said that:

The Department [of Justice] ... has mechanisms in place to investigate allegations of prosecutorial misconduct, including through its Office of Professional Responsibility. With respect to judicial ethics matters, the Judicial Conduct and Disability Act of 1980 vests primary responsibility for investigating and adjudicating claims of judicial misconduct with the Judicial Branch.

[Thanks to Scott Mange for the lead.] 

State Statutory Finding of Reliance on God Survives Constitutional Attack

In Kentucky Office of Homeland Security v. Christerson, (KY App., Oct. 28, 2011), a Kentucky state appeals court, in a 2-1 decision, rejected Establishment Clause and state constitutional challenges to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings (Sec. 39A.285) recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God as set forth in public speeches and proclamations of American Presidents...." A 2006 law (Sec. 39G.010) called upon the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God.  The majority held:

The Kentucky legislature has not attempted to compel belief or participation in any form of religious exercise, nor does it seek to prefer one belief over another. A simple reference to a generic “God” acknowledges religion in a general way....

The legislation ... does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection.

Judge Shake dissenting argued that the challenged statutes

go beyond merely acknowledging the historical role of religion and instead require dependence upon Almighty God to secure the Commonwealth’s safety.

Yesterday's Louisville Courier Journal reports on the decision. (See prior related posting.)

Commonwealth Leaders Approve Ending Ban On Monarch Marrying A Catholic

BBC reports today that at the Commonwealth Heads of Government Meeting in Perth, Australia, the leaders of the 16 British Commonwealth countries have agreed to amending Britain's 1701 Act of Settlement to eliminate the ban on British monarch being married to a Roman Catholic. The original provision was put in place to settle the succession to the throne following the Glorious Revolution of 1688. (Background.) Explaining the change, Prime Minister David Cameron said:

Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church. But it is simply wrong they should be denied the chance to marry a Catholic if they wish to do so. After all, they are already quite free to marry someone of any other faith.

Some expressed disappointment that Catholics will still not be able to become king or queen.  The Commonwealth summit also approved changes giving daughters equal rights with sons to ascend the throne. Under current law, a daughter becomes queen only where there are no sons. Parliaments in Britain and the other Commonwealth nations will need to approve legislative changes before the reforms take effect.

Dismissed Teacher Loses Claims Against Catholic School

Braun v. St. Pius X Parish, 2011 U.S. Dist. LEXIS 123750 (ND OK, Oct. 25, 2011), is a suit by a former 5th grade teacher at a Catholic elementary school who claimed religious and age discrimination in the non-renewal of her contract. Insofar as teacher Martha Braun claimed she was dismissed because she was an Episcopalian, the court concluded that the school is protected by the exemption in Title VII of the 1964 Civil Rights Act (42 USCS § 2000e-1) that permits religious educational institutions to hire and fire on the basis of religion. In connection with the age discrimination claim, the court concluded that the ministerial exception does not protect defendant because plaintiff could not be considered a ministerial employee: "Braun did not teach religion or lead the students in prayer, and she is not Catholic." However, the court concluded that Braun's contract was not renewed because of legitimate complaints from parents about her performance, and that these were not a pretext for age discrimination.

Court Rejects Establishment Clause Challenge To Social Security Act

In Hamner v. Astrue, 2011 U.S. Dist. LEXIS 123698 (SD TX, Oct. 26, 2011), a Texas federal district court  rejected plaintiff's claim that the Social Security Act violates the Establishment Clause by coercing him to participate in Christian charity or by preventing him from participating in Christian charity.

Podcast of Law and Religion Symposium Available Online

Earlier this month, the University of Alabama School of Law hosted a symposium titled Matters of Faith: Religious Experience and Legal Response. Podcasts of the entire symposium proceedings are now available online.

Cert. Petition Filed In County Commission Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday seeking review in Forsyth County, North Carolina v. Joyner, (filed 11/27/2011). In the case, the 4th Circuit in a 2-1 decision held that the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face.  As implemented, nearly 80% of the prayers delivered mentioned Jesus, and none mentioned any other deity. (See prior posting.) The Winston-Salem Journal reports on the filing.

Mayor Caves On Water Tower Cross In Unusual Move

The mayor of Whiteville, Tennessee has found an unusual way to respond to a complaint from the Freedom from Religion Foundation about a cross that has been displayed for the last 8 years atop the town's water tower. (See prior posting.) According to WREG-TV, Mayor James Bellar has merely removed one arm of the cross, leaving as a reminder of the issue the remaining portion of the cross.  In a letter to the Nashville lawyer representing those complaining about the cross, the mayor wrote:

This brings to close a sad chapter in the history of Whiteville that can best be described as terroristic, cowardly and shameful! The fear and terror caused our older people here is shameful. So shame on your client and your firm!

FFRF has called off plans to sue the town.

Fired Muslim Employee Sues Over Right To Accommodate Prayer Time

The Chicago Tribune reported yesterday that Nathan Henderson, a Muslim former employee of the American Bottling Company, has filed a religious discrimination lawsuit against the company.  Henderson was fired after he sought permission to schedule his lunch break at a time that allowed him to attend Friday Jumma prayers.

California Settles Lawsuit Filed By Sikh Prison Guard Applicant

The California Department of Rehabilitation and Corrections has settled a religious discrimination lawsuit brought by a Sikh man whose application to become a prison guard was rejected because he refused to shave his beard.  AP reports that under the settlement, plaintiff Trilochan Obeori will receive $295,000 in damages and will be given a $61,000 per year job as a manager in the corrections department's Regulation and Policy Management branch. However the state is not changing its policy that requires most corrections employees to be clean shaven so they can be fitted with gas masks.

Moderate Islamic Party Wins Tunisian Election

Election officials in Tunisia yesterday confirmed that the moderate Islamist Ennahda party won this week's Parliamentary elections.  According to Reuters, Ennahda captured 90 seats in the 217-seat assembly which will draft a new constitution.  The next largest party-- the secularist Congress for the Republic-- obtained only 30 seats. Ennahada attempted to assure secularists and investors by saying that it would not impose Islamic banking, nor would it stp tourists from wearing bikinis on Tunisian beaches.

Cert. Filed In Challenge To Political Activity Constraints On Non-Profits

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Catholic Answers, Inc. v. United States, (filed 10/21/2011). In the case, the 9th Circuit (full text of opinion) dismissed as moot a Catholic organization's challenge to the constitutionality of Section 4955 of the Internal Revenue Code. That section imposes an excise tax on political expenditures made by Section 501(c)(3) non-profit organizations.  At issue were expenditures made by Catholic Answers on a 2004 E-letter critical of the views of Sen. John Kerry, the 2004 Democratic nominee for President of the United States. The E-letter also criticized Kerry's taking of communion at an African Methodist Episcopal church. After excise taxes were imposed, Catholic Answers filed a complaint seeking a tax refund. The IRS then abated and returned the excise taxes. Catholic Online reviews the background of the case in an opinion piece.

President Sends Best Wishes To Those Celebrating Diwali

President Obama yesterday issued a statement (full text) sending holiday greetings to Hindus, Jains, Sikhs and Buddhists who are celebrating the holiday of Diwali-- the festival of lights that "symbolizes the victory of light over darkness and knowledge over ignorance." Obama emphasized that Diwali is a time of celebration with dancing and food, but also a time for contemplation and prayer to remind us of our obligations to the less fortunate.

DC Human Rights Office Investigating Catholic U's Treatment of Muslim Students

In a press release last week, George Washington University law professor John Banzhaf disclosed that the District of Columbia Office of Human Rights has given Catholic University until today to respond to charges that it discriminates against Muslim students.  A complaint filed with the Office contends that Catholic University has not permitted Muslim students to form their own student organization, and has not provided designated space for Muslim students to use for their daily prayers. [Thanks to Ken Braithwaite for the lead.]