Recent Prisoner Free Exercise Cases

In Neal v. Campbell, (9th Cir., Nov. 23, 2011), the 9th Circuit upheld a California district court's finding of qualified immunity based on the failure to show a substantial burden on the practice of religion in a case brought by an inmate who complained that he was placed in administrative segregation for becoming an "ameer" (a Muslim leader) at the prison. (See prior posting.)

In Kailey v. Zavaras, 2011 U.S. Dist. LEXIS 133277 (D CO, Nov. 17, 2011), a Colorado federal district court dismissed various free exercise (as well as a number of other) claims, partly on statute of limitations grounds and partly on the merits. Plaintiff claimed certain of his magazines had been destroyed, that he was prevented from obtaining emergency outreach community relief for his daughter, was strip searched after attending a Jewish service, was prevented from participating in a "Kairas" four-day weekend event as an "inside team member," and was prevented from attending Passover services.

In  Whitehouse v. Johnson, 2011 U.S. Dist. LEXIS 133822 (ED VA, Nov. 18, 2011), a Virginia federal district court dismissed a claim by by an inmate that his rights under RLUIPA and the 1st Amendment were infringed when a correctional center to which he was transferred interfered with his ability to complete his correspondence coursework from a Protestant theological seminary in which he was enrolled.

In Abel v. Martel, 2011 U.S. Dist. LEXIS 133713 (ED CA, Nov. 18, 2011), a California federal magistrate judge allowed an inmate to proceed with claims that he was not allow to purchase for personal use certain items used for Wiccan religious worship, but instead was limited under prison policy to using these for group worship. Plaintiff was also permitted to move ahead with a claim that various religious items were confiscated from his cell in retaliation for his filing a complaint. Plaintiff failed to exhaust his administrative remedies as to other claims.

In Ouahman v. Hillsborough County Department of Corrections, 2011 U.S. Dist. LEXIS 133751 (D NH, Nov. 16, 2011), a New Hampshire federal district court approved two separate magistrate's opinions (2011 U.S. Dist. LEXIS 133756, Aug. 29, 2011 and 2011 U.S. Dist. LEXIS 134060, Oct. 25, 2011) and permitted an inmate to proceed on RLUIPA and First Amendment claims that correctional officers denied him a prayer rug and a Qur'an, denied accommodations for observing Ramadan, and discriminatorily placed him in unnecessarily restrictive housing conditions.

In Runnels v. Banks, 2011 U.S. Dist. LEXIS 133892 (D MS, Nov. 18, 2011), a Mississippi federal magistrate judge permitted a Rastafarian inmate to move ahead with his claim for nominal and punitive damages for burdening his practice his religion while incarcerated. His claims for injunctive relief were found to be moot.

In Chance v. TDCJ, 2011 U.S. Dist. LEXIS 132664 (ED TX, Nov. 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 133972, Oct. 13, 2011) and denied a preliminary injunction to a Native American inmate who sought to have weekly religious ceremonies that include sacred pipe ceremonies and smudging and wished to carry a lock of his parents' hair in a pouch.

In Wakefield v. Indermill, 2011 U.S. Dist. LEXIS 134795 (ED CA, Nov. 21, 2011), a California federal magistrate judge recommended dismissing a Seventh Day Adventist inmate's complaints under the 1st Amendment and RLUIPA that the Protestant chaplain did not provide him with weekly Communion and foot washing.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 134869 (ED LA, Nov. 21, 2011), a Louisiana federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 134883, Oct. 17, 2011), and dismissed for failure to prosecute the case an inmate's claim that he was unable to practice his Santeria religion.

300 In Maldives Protest UN Human Rights Commissioner's Speech

AP reported that yesterday in the Maldives, 300 people demonstrated against UN High Commissioner for Human Rights Navi Pillay who had just concluded a visit to the country. The protesters, claiming that the United Nations is spreading anti-Islamic activities in the Maldives, objected to Pillay's speech before Parliament in which she said that the flogging of women found to have had sex outside marriage is "inhuman and degrading."  Protesters also criticized Maldives officials for allowing Pillay to speak in Parliament.

UPDATE: Minivan News (11/27) reports on additional criticism of Pillay by various political and religious leaders in the Maldives.

Court Quashes Rabbi's Subpoenas Seeking Identity Of Anonymous Bloggers

In 2008, a New York appeals court in Tendler v. Bais Knesses of New Hempstead, Inc.,  held that Rabbi Mordechai Tendler was entitled to recover damages against the synagogue that fired him in violation of a contract clause that provided he could not be terminated unless the action was authorized by a Rabbinical court. His synagogue's action came after several women alleged he had abused his position to have sex with them.  As outlined in a Memorandum of Law in the case, for several years, Tendler has been attempting to obtain the identities of four bloggers who have commented about the charges against him, claiming that the charges were false and in retaliation for his speaking out on feminist issues. Most recently Tendler has served subpoenas on the anonymous bloggers' counsel again seeking their identity arguing that this information is relevant to determination of damages by the trial court.  In a Nov. 16 decision in the case (full text), the court quashed the subpoenas. The court held that since Tendler had already prevailed on the issue of liability, to permit disclosure of non-parties who have a right to anonymous speech would "open the floodgates and set a precedent that this Court is unwilling to do." Public Citizen Consumer Law & Policy Blog last week reported on these developments.

Court Says It May Decide Pastor's Employment Dispute With Church

In Errgong-Weider v. United Congregational Church of Norwalk, 2011 Conn. Super. LEXIS 2765 (CT Super., Oct. 25, 2011), a Connecticut trial court refused to dismiss a lawsuit by a pastor against his church challenging the termination of his contract by a vote of members at a meeting. It held:

The issues raised by the plaintiff's complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded ...; and (3) whether barring him from attendance at the meeting ... violated his rights as a member of the defendant non-stock corporation.... [R]esolution of these issues would not require the court to intrude upon the defendant's exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert's Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach ..., the court may analyze the defendant's bylaws and constitution in resolving the dispute.

Restriction on Sex Offender Infringes Free Exercise Rights

In United States v. Lantz, (6th Cir., Nov. 22, 2011), the 6th Circuit vacated, in part on religious freedom grounds, one of the special terms of supervised release  imposed on defendant who plead guilty to distributing child pornography. The terms would take effect after the defendant completed a 15-year prison sentence.  At issue was the requirement that "Defendant shall neither possess nor have under his control any matter that is pornographic or that depicts or alludes to sexual activity..." The court concluded:

A restriction on material that "depicts . . . sexual activity" alone might not be overly broad. But one that bans mere allusion to sexual activity is certainly overly broad. Not only would such a ban prohibit the defendant from reading significant parts of the Old Testament—Proverbs 7, The Song of Solomon, and II Samuel 11 come immediately to mind—it would encompass an enormous swath of literature, music, and other media.... Given the mass of literature and other media such a condition would encompass, the error was clear and obvious; it affects substantial First Amendment rights to receive information ... and to freely exercise religion.

School Prior Approval Policy For Handouts Upheld Over Objections of Religious Group

In Taylor v. Roswell Independent School District, (D NM, Nov. 23, 2011), a New Mexico federal magistrate judge dismissed 1st Amendment and equal protection claims brought by high school students who were members of a religious group, Relentless in Roswell. The students sued after they were stopped from distributing rubber fetus figurines with a passage from Psalms and contact information for a pregnancy resource center attached to them. School officials took the action because a previous similar distribution caused substantial disruption. The court upheld a school policy requiring prior approval for students to distribute non-school related material on school grounds, even though members of Relentless in Roswell had a history of handing out many  kinds of items-- including candy canes, wrist bands and Easter eggs, many with religious messages attached-- generally without seeking school permission.  None of these however created disruption in the schools. (See prior related posting.)

FFRF Says Sheriff's Ad Violates Establishment Clause

On Tuesday, the Freedom from Religion Foundation announced that it had sent a letter (full text) to the Onslow County, North Carolina Board of Commissioners complaining about an ad that the county sheriff placed in a local newspaper. The ad, in the form of a letter from the sheriff to "All Decent and Respectable Citizens...", says in part: "Our society in in a big mess today because good, decent and respectful citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom.... Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments." The Jacksonville (NC) Daily News reported yesterday that Sheriff Ed Brown says he paid for the ad from his personal funds, as he has done for dozens of other ads over the past 21 years. FFRF says that the letter -- which includes the sheriff's official badge and seal-- is clearly intended to carry the weight and authority of the Sheriff's Office and thus violates the Establishment Clause.

Some Defendants Dismissed From Suit On Hosting Religious Services At Homeless Shelter

In Caractor v. City of New York Department of Homeless Services, 2011 U.S. Dist. LEXIS 134623 (SD NY, Nov. 22, 2011), plaintiff, a bishop in the Discovered Being Ministry, sought to hold religious services at a housing facility for the homeless shortly after he and his family received shelter there. The Department of Homeless Services denied his request and he sued. The court now granted motions of certain of the defendants to dismiss them because they were not personally involved in any of the alleged violations of plaintiff's free exercise or free speech rights.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Allen v. Holmes, (FL Cir. Ct., Nov. 22, 2011), a Florida trial court, invoking the ecclesiastical abstention doctrine, dismissed claims of defamation and intentional infliction of emotional distress brought by plaintiff against her pastor.  Plaintiff claimed that defendant made defamatory statements about her as part of an effort to oust her from the church. The court concluded that the case turns on a determination of whether the statements were lies or instead were a response to disruptive behavior by plaintiff that was inconsistent with church doctrine. Thus resolution of the case would involve an inquiry into church governance and the conduct expected of church members-- matters which the ecclesiastical abstention doctrine preclude the court from considering. [Thanks to Russell  Buchanan for the lead.] 

Memorial Cross At Camp Pendleton Raises Objections

The Los Angeles Times last Monday reported on the latest controversy over religious symbols on public property-- this time a 13-foot cross erected by Marines at Camp Pendleton. The cross was put up on Veterans Day to honor four marines killed in combat in Iraq, as well as a more general memorial. Three of the four Marines were part of a group that had erected a cross on the same location in 2003 before deploying to Iraq. That earlier cross was destroyed in a brush fire in 2007.  The Military Association of Atheists and Freethinkers has protested the cross. The American Center for Law and Justice has sent a letter to the Marines defending the constitutionality of the cross as a historical and universal symbol of remembrance.  The Marine corps says that it is reviewing the issue, and that the cross was erected by private individuals acting solely in their personal capacities. [Thanks to Scott Mange for the lead.]

7 Amish Charged With Federal Hate Crimes In Forced Beard Cuttings

The Cleveland Plain Dealer reports that authorities yesterday arrested Samuel Mullet, Sr., the Bishop of a break-away Amish group, known as the Bergholz clan, as well as three of his sons and three other followers, on charges of forcibly cutting the beards of 4 Amish men who were members of a different Amish community.  The FBI Affidavit in support of a criminal complaint (full text) says that Mullet controlled all aspects of his followers lives, forced extreme punishments on them and cleansed married women in the clan of the devil by sexual intimacy with them. After 8 families moved away from the Bergholz community in 2005 because of religious disagreements, Mullet excommunicated them. However a special committee of bishops from other communities determined that Mullet's excommunications were invalid. The 4 victims of the beard cuttings were involved with the bishop's committee, or aided break-away families, or, in one case, was one of the excommunicated members (and the father of one of those charged in the case). (See prior related posting.)

The Affidavit seeks a criminal complaint charging the 7 defendants with conspiracy to violate the federal Hate Crimes Prevention Act (18 USC Sec. 249). The federal Hate Crimes statute permits federal prosecution only if the crime involves one or more specified links to interstate commerce. One of those links is that the defendant employed a dangerous weapon that has traveled in interstate commerce. The FBI affidavit states that the attacks were carried out with "hair clippers and 8" scissors manufactured in the state of New York."

President Issues Thanksgiving Proclamation

Last week, President Obama issued a Presidential Proclamation (full text) declaring today a National Holiday of Thanksgiving. The Proclamation says in part:

When President George Washington proclaimed our country's first Thanksgiving, he praised a generous and knowing God for shepherding our young Republic through its uncertain beginnings..... In times of adversity and times of plenty, we have lifted our hearts by giving humble thanks for the blessings we have received and for those who bring meaning to our lives.  Today, let us offer gratitude to our men and women in uniform for their many sacrifices, and keep in our thoughts the families who save an empty seat at the table for a loved one stationed in harm's way.  And as members of our American family make do with less, let us rededicate ourselves to our friends and fellow citizens in need of a helping hand.

Trial Court Upholds Most of Canada's Anti-Polygamy Law

In Canada, the Supreme Court of British Columbia (the province's superior trial court) today upheld most of Canada's anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province's attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

In today's decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), Chief Justice Bauman concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17. To this extent, it violates Sec. 7 of the Charter which provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans-- as protected by Sec. 2 of the Charter-- but that this infringement is justified by Sec. 1 of the Charter that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion-- which runs 1367 numbered paragraphs in length-- includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

CBC News reports on the decision.

UPDATE: The National Post on Wednesday quotes a lawyer for the FLDS community as saying that Chief Justice Bauman's decision suggests a route for circumventing the polygamy statute. The decision finds that the statute only covers relationships entered into with some sanctioning event, and not mere common law marriage.

Archdiocese To Ask Bankruptcy Court For Approval of Therapy Fund

As previously reported, the Catholic Archdiocese of Milwaukee (WI) filed for Chapter 11 bankruptcy reorganization last January. This week the Milwaukee Journal-Sentinel reported that the Archdiocese will ask the bankruptcy court for permission to create a $300,000 fund to be used for counseling and therapy for sex-abuse victims whose claims are disallowed because the statute of limitations has run, because the abuser was not employed by the diocese or the victim has already reached a settlement with the Archdiocese (Archbishop's letter announcing the plan.) Jim Stang, the attorney for the creditors committee, says he fears this is a prelude to the Archdiocese beginning to file objections to claims.  One of the contested issues is whether the Archdiocese is responsible for claims involving priests who belong to religious orders, but needed the Archbishop's approval to operate in the Archdiocese.

Court Upholds Denial of Use Permit To Virginia Church

In Calvary Christian Center v. City of Fredericksburg, Virginia, 2011 U.S. Dist. LEXIS 134290 (ED VA, Nov. 21, 2011), a Virginia federal district court upheld the city of Fredericksburg's denial of a special use permit to Calvary Christian Center that wanted to lease space in its church to the operator of a private day school for disabled children. Rejecting plaintiff's free exercise and RLUIPA claims, the court said that "Calvary has not pled any facts demonstrating that the operation of the day school by a third party is a religious exercise." The court also rejected plaintiff's free speech claims, as well as its overbreadth and vagueness assertions. The Fredericsburg Free Lance-Star reports on the decision.

Roy Moore To Run Again For Alabama Chief Justice

Sunshine State News today reports that former Alabama Supreme Court Chief Justice Roy Moore yesterday announced that he would enter the March Republican primary to run again for the Alabama chief justice position. At least two other Republicans are also seeking the position. Moore became well know because of his unsuccessful battle, beginning in 2001, to keep a large Ten Commandments monument in the lobby of the Alabama State Judicial Building. Moore's announcement ends speculation that he would run for the Presidency next year. Moore says he will continue to defend religion in the public square, but will not bring back the Ten Commandment monument, which now is housed at a church in Gasden, Alabama. (See prior posting.)

Maldives Government Shuts Down Sufi Blog

According to Reporters Without Borders, last Saturday the Communications Authority of the Maldives, on the orders of the Islamic affairs ministry, shut down the blog of Ismail Khilath “Hilath” Rasheed because it contained anti-Islamic material. Rasheed is a Sufi, while most Maldivians are Sunni Muslims. Rasheed plans to go to court-- only a court order can permit him to reopen his blog.  Rasheed says this is the beginning of a crackdown by conservatives in control of the Islamic affairs ministry.

Suit Seeks Right To Preach At "Tour of Lights" Event

Yesterday's Duluth (MN) News Tribune and the Minneapolis Star Tribune, report that two locally well-known street preachers have filed suit in federal district court to obtain the right to preach at the Bentleyville Tour of Lights held in Duluth's Bayfront Festival Park. The event attracts 150,000 people annually, and the city furnishes trash and snow removal, lights and similar services. Plaintiffs say they have a religious obligation to preach in public, including carrying signs and wearing messages on their clothes. One of the men, along with a second preacher, was ordered out of the display last year when they insisted on preaching to those attending.  Deputy City Attorney Alison Lutterman says that Bentleyville, a private organization, "has a contact with the city that allows it exclusive rights to the use of the Bayfront area for its presentation of a holiday lighting display.... These exclusive rights include the right to exclude persons. Bentleyville is not an area intended for the exercise of 1st Amendment activity. The management of Bentleyville have been advised of its right to exclude persons from the area within its contractual exclusive use." In the lawsuit, Steve Jankowski and Peter Scott ask the court to enjoin Duluth police officials from ejecting them from the event.

Court Orders Father To End Mormon Education of Children Without Mother's Consent

In In re the Marriage of John and Angela Bell, (CA App., Nov. 18, 2011), a California appellate court upheld a trial court's order in a marriage dissolution case preventing the father from continuing taking the couple's young children to Mormon religious services and Sunday School without the mother's consent.  The order would expire when the children reached 12 years of age.  The mother was Jewish, and during the marriage the children had been raised in the Jewish religion. An expert who conducted a child custody investigation concluded that the children were confused because they thought their father had become Jewish, that involving the children in Mormon education was being used as a weapon by the father to intimidate his former spouse, and that continuing it would cause psychological harm to the children.

Georgia High Court Favors Parent Church In Two Property Cases

In Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court in  a 6-1 decisions held that "neutral principles of law show that the property of Christ Church at issue is held in trust for the benefit of the Episcopal Church." In 2007, Christ Church broke away from the Episcopal Church and affiliated with the more conservative Anglican Province of Uganda. The break came after the Episcopal Church voted to ordain an openly gay man as Bishop of New Hampshire. Judge Brown dissented.  Episcopal News Service reports on the decision.

In a 4-3 decision in Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court held that under the "neutral principles of law" doctrine, the property of the break-away Timberridge Presbyterian Church was held in trust for the national church, the PCUSA. Justice Nahmias, writing for the majority, said:

in its own charter TPC Inc. proclaimed its allegiance to the PCUSA Book of Order, which included a provision explicitly stating that local church property is held in trust for the use and benefit of the PCUSA, and at no time during the more than two decades before this dispute erupted and the eight years after it was deeded the property at issue did TPC Inc. even seek to amend its Articles to demonstrate any different intent.

Two separate dissenting opinions were also filed.