Recent Prisoner Free Exercise Cases

In Hernandez v. United States, 2011 U.S. Dist. LEXIS 136298 (ND OH, Nov. 28, 2011), an Ohio federal district court rejected a federal inmate's complaints regarding provision of kosher meals to Jewish inmates, particularly during Passover in 2011.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 136916 (ED CA, Nov. 28, 2011), a California federal magistrate judge recommended that an inmate who is a member of the Moorish Science Temple of America be permitted to move ahead with his complaint that his religion requires him to change his name to a Muslim name, but that his request to do so was denied by the warden.

In Santana v. Aviles, 2011 U.S. Dist. LEXIS 137319 (D NJ, Nov. 30, 2011), a New Jersey federal district court rejected an inmate's claim that as a pre-trial detainee his rights under the 1st Amendment and RLUIPA were violated when, during a 9-month unit lock-down, he was denied the right to attend church services.

In White v. Linderman, 2011 U.S. Dist. LEXIS 138375 (D AZ, Nov. 29, 2011), an Arizona federal district court permitted an inmate who believed in Messianic Judaism to move ahead with his claim that his rights under federal and state law were infringed when prison authorities refused to provide him with a kosher diet.

In Murray v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 138305 (D AZ, Nov. 28, 2011), an Arizona federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims against a number of defendants in which he alleged he was denied a religious diet. However the court dismissed the food service company as a defendant because "a Bivens action is only available against federal officers, not private companies acting under color of federal law in operating a prison."

In Burford v. Troutt, (MD TN, Nov. 18, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was required to return to his cell when Christian services were being held in the commons area, that there were problems with holding Muslim study sessions, and he was not allowed to wear a kufi.

Delaware Catholic Orders and School Settle Sex Abuse Cases

The Wilmington (DE) News-Journal reported yesterday that 14 Delaware men have settled for $7 million their suits charging sex abuse as children by two employees of a Catholic school.  The plaintiffs were abused in the 1970's and '80s, nine of them by Capuchin Friar Paul L. Daleo, and five by former wrestling coach John J. Fleming, both of whom were employed by St. Edmond's Academy.  The settlement was with the Academy, the Capuchian friars, and Brothers of the Holy Cross who run the school. It also requires the release of names of any others at Capuchin institutions with proven, admitted or credible accusations of child sexual abuse. Claims against religious orders were not part of the Diocese of Wilmington's Chapter 11 bankruptcy reorganization plan approved earlier this year. (See prior posting.)

ACLU Charges FBI With Illegally Collecting Information On Political and Religious Beliefs

In a press release issued Thursday, the ACLU charged that the FBI has been using its community outreach programs-- including its mosque outreach program-- to gather information for intelligence purposes, in violation of the Privacy Act. 5 USC 552a(e)(7) bars federal agencies, with certain exceptions, from maintaining records that describe an individual's exercise of First Amendment rights. An ACLU memo describes and links to the full text of various documents it obtained through Freedom of Information Act requests that led it to conclude that the FBI is illegally collecting and storing information on Americans' political and religious beliefs.

Egyptian Elections Lead To Debate Among Islamists Over Role of Shariah

In the first round of Egyptian elections for the lower house of parliament held this week, two Islamic parties were the winners. As reported by CNN, the relatively moderate Muslim Brotherhood's Freedom and Justice Party took 40% of the vote, while the more fundamentalist Noor Salafi Movement took 20% of the vote. The New York Times today analyzes at length the internal debate this has caused. Here are some excerpts from the analysis:

[Salafist] Sheik Shahat ...  and his allies are demanding strict prohibitions against interest-bearing loans, alcohol and “fornication,” with traditional Islamic corporal punishment like stoning for adultery.

The unexpected electoral success of the Salafis ... is terrifying Egyptian liberals and troubling the West. But their new clout is also presenting a challenge to the Muslim Brotherhood, in part by plunging it into a polarizing Islamist-against-Islamist debate over the application of Islamic law in Egypt’s promised democracy.... 

The Brotherhood ... is at its core a middle-class missionary institution, led not by religious scholars but by doctors, lawyers and professionals.... [I]ts leaders have sought to avoid potentially divisive conversations about the details of Islamic law that might set off alarms about an Islamist takeover. But their evasiveness on the subject has played into long-term suspicions of even fellow Islamists that they are too concerned with their own power.

Open Policy On Courthouse Displays Results In Unusual Mix

In Leesburg, Virginia, the first of  9 or 10 holiday displays on the Louden County Court House grounds will go up this week end.  As reported last month by Leesburg Today, after an unsuccessful effort in 2009 to end all holiday displays in Courthouse Square-- which would have included a manger scene and a Christmas tree that usually were placed there-- the county settled on a first-come first-served policy for December displays.  The first 10 (now reduced to 9 because of concern about a tree in one location on the grounds), are a mixed bag. They include a creche, two displays from atheist groups, a display of a letter from Jesus, a Santa on a cross to decry the materialistic nature of the holiday, and two displays from members of the Church of the Flying Spaghetti Monster. [Thanks to Scott Mange for the lead.]

South Dakota High Court Says Clergy Abuse Case Barred By Statute of Limitations

In Iron Wing v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Nov. 30, 2011), the South Dakota Supreme Court held that a lawsuit filed in 2008 by a victim of clergy sexual abuse committed over 40 years earlier is barred by the statute of limitations.  Plaintiff claimed he was sexually abused by a nun and a priest at a boarding school he attended. SDCL 26-10-25 requires the suit to be brought "within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later." The court said:

“Inquiry notice is determined by an objective standard.” ...  Although Iron Wing perhaps subjectively could not “connect the full extent of his injuries to the sexual abuse, he was aware of enough facts to put him on inquiry notice.”... He knew he had been abused by two members of a religious order beginning when he was age ten and resuming at age thirteen, because of this abuse he was angry and harbored hatred against the church and its priests and nuns from the time he was in the eleventh grade, he left the school because of the abuse, and he never forgot the abuse. These circumstances were sufficient to “‘prompt[] a reasonably prudent person to seek out information regarding his injury or condition and its cause.’”

AP reports on the decision.

Rhode Island's "Holiday Tree" Provokes Criticism

Rhode Island Gov. Lincoln Chafee has generated controversy after a press release announcing a "holiday tree lighting" to be held in the Statehouse Rotunda on Dec. 6. AP reported this week that critics are upset he is not calling it a "Christmas tree." Last January, the Rhode Island House of Representatives passed a resolution (full text) providing:

That it is the policy of the state that state officials and departments refer to the tree customarily erected or displayed in celebration of the period from Thanksgiving of each year to January of the following year as a "Christmas tree" and not as a "holiday tree" or other non-traditional terms...

However Chafee says he is merely respecting the state's history of religious tolerance.  He added that lawmakers who are upset should instead focus their energy on feeding the hungry. A press release from Liberty Counsel yesterday reported that John Leyden, the owner of Big John Leyden Christmas Trees, who donated the tree that will be lit this year says he may now take it back.

Obama and Family Light New National Christmas Tree

AP reports that yesterday President Obama, along with his family, attended the lighting of the National Christmas Tree on the Ellipse. In his remarks (full text) before he and his family lit the tree, Obama said in part:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.  

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season.  

So long as the gifts and the parties are happening, it’s important for us to keep in mind the central message of this season, and keep Christ’s words not only in our thoughts, but also in our deeds.

While this is the 89th year for the lighting ceremony, this year the ceremony took place using a tree that was newly planted in March after strong winds in February toppled the previous tree that had been used since 1978.

Court Rebuffs New Claims By Officer Disciplined For Refusing To Attend Event At Mosque

In Fields v. City of Tulsa, 2011 U.S. Dist. LEXIS 136522 (ND OK, Nov. 28, 2011), an Oklahoma federal district court rejected an attempt by a Tulsa police officer to file a second amended complaint in his suit against the Tulsa Police Department.  Officer Paul Fields was disciplined by the Department when he refused to attend, and refused to require officers under his command to attend, a "Law Enforcement Appreciation Day" hosted by the Islamic Society of Tulsa at a local mosque. Fields wanted to add a 1st Amendment speech claim and a claim under the Oklahoma Religious Freedom Act. In rejecting Fields' religious freedom arguments, the court said:

Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing "to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion)."... However, nothing in Fields' proposed Second Amended Complaint suggests that Defendants' actions in any way inhibited or curtailed Fields from practicing his religion.... Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs....

(See prior related posting.) Yesterday's Tulsa World has more background on the decision.

ABA Names Religion Clause Among Top 100

I am pleased to announce that the editors of the ABA Journal today announced they have selected Religion Clause as one of the top 100 legal blogs. This is the 4th time in 5 years that Religion Clause has been on this list.  The 100 blogs are in 12 categories, and the ABA is now asking readers to vote for their favorite blog in each category.  Religion Clause is one of 14 blogs in the "Niche" category.  If you are a fan of Religion Clause, I hope you will vote for it here.  The ABA website will ask you to register before voting to prevent "ballot box stuffing." Voting ends Dec. 30.

"Tebowing" By Marines-- Church-State Issue or Silliness?

Occasionally the line between "silliness" and a true church-state issue is blurred.  Here is the latest example.  Last month, Yahoo! Sports explained a new fad known as "Tebowing," inspired by now-Denver Broncos quarterback Tim Tebow who is known for his displays of his Christian religious faith. According to an NFL posting, Tebowing is:

the practice of posing on bended knee as if deep in prayer, which spread across the Internet with amazing speed after [Tebow] was photographed in such a pose during a comeback win at Miami.

Tebow's reaction to the craze:  "Someone told me the greatest form of flattery is impersonating somebody." A Tebowing website is filled with photos of the practice.

The latest question arises, however because the Military Times last week published a photo of a dozen marines in formation in uniform on the football field performing "their version of 'Tebowing' before the Broncos-Jets game on Nov. 17."  It is not clear from the photo why they are there. The Military Times also explains Tebowing: "The trend pokes fun at Tebow's penchant for dropping to a knee in prayer, with his elbow on his knee and his fist under his bowed head." So the question is how to regard this display of Marines in uniform.  There is potentially a church-state issue if the Marines are there in some official capacity-- endorsing or, on the other hand, mocking, Tebow's religious beliefs.  Or maybe it is just silliness to which we should apply the legal maxim "de minimis non curat lex"-- the law does not concern itself with trifles. God and Country blog yesterday also  commented on the photo of the Marines.

German Court Says School Can Stop Student From Praying To Preserve Order

Germany's Federal Administrative court yesterday ruled that while a student's right to pray at school is constitutionally protected, a school may ban a student from praying when it disrupts the school's operations.  The Local and Al Jazeera both report on the decision that involved a Muslim student who, with several others, laid down his jacket in the school hallway between classes and prayed. The school's principal objected, in part because severe conflicts had already broken out among Muslim students over interpretation of the Qur'an.

Catholic University Cleared In Challenge To Same-Sex Dorms

In a press release yesterday, Catholic University announced that the D.C. Office of Human Rights has dismissed the complaint filed by George Washington University law professor John Banzhaf challenging as discriminatory Catholic University's elimination of mixed-gender dormitories on campus. The 16-page opinion in In re Banzhaf v. Garvey, (DC OHR, Nov. 29, 2011), reviews at length the arguments by both sides. Among the University's claims was that "co-ed dorms contribute to an atmosphere that is incompatible with the university's religious mission," and that its decision is protected by the Religious Freedom Restoration Act. Prof. Banzhaf disagreed arguing that the University's moral and ethical concerns are secular ones, not basic religious tenets.  In upholding the University's policy, the OHR held broadly that:

the DCHRA does not forbid colleges and universities from making sex-based distinctions between students. We agree that to follow Complainant's reasoning would include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead to absurd results.

Former Employee Sues Na'amat For Religious Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed Tuesday by Marshall Garvin against his former employer, Na'amat USA (a Jewish social service agency) and his supervisor there, Susan Schwartz. Garvin says he was fired immediately after he complained to Na'amat's president about his treatment by Schwartz in connection with his leaving work in order to say Kaddish for his mother who died in January. Observant Jews say the Kaddish prayer 3 times each day for 11 months at religious services after a parent dies. Garvin says that Schwartz phoned several local synagogues and told him which ones he could attend, harassed him about where he was, and kept him from attending services around 15 times. Na'amat says Garvin was laid off in a reduction of force. Apparently Garvin in the past won two settlements in religious discrimination cases against the U.S. Postal Service, where he worked for over 30 years.

Federal Election Commission Releases Enforcement Files On Catholic Group's Robocalls

BNA's Daily Report for Executives [subscription required] reports that on Nov. 25, the Federal Election Commission released documents in an enforcement case against Informed Catholic Citizens (ICC), a 501(c)(4) non-profit organization.  The  case grew out of a complaint (full text) filed in 2008 by the Freedom From Religion Foundation. At issue were robocalls featuring a Catholic priest supporting John McCain over Barack Obama in the Presidential election because of their respective positions on abortion.  In January 2011, the FEC voted unanimously that the call involved express advocacy and there was reason to believe that ICC had violated the Federal Election Campaign Act by failing to report an independent expenditure and failing to include a disclaimer stating that ICC had paid for the call. (FEC Certification). A General Counsel's Report concluded, however, that because of the low dollar amount at issue, no further action should be taken.  A vote of the FEC in October split 3-3 on that recommendation. Instead the Commission voted 5-0 to send ICC a letter of caution and close the file. However on Oct. 21, the 3 Democratic members of the Commission released a Statement of Reasons why they preferred to seek a statutory penalty of $7500 against ICC. They contended that "while the call may have been relatively inexpensive, it appears to have reached almost 70,000 recipients."

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Dissident Hasidic Faction Loses Establishment Clause Challenge To Town's Government

In Kiryas Joel Alliance v. Village of Kiryas Joel, (SD NY, Nov. 28, 2011), a New York federal district court dismissed a series of claims brought by a dissident faction within the Village of Kiryas Joel (NY), an Orthodox Jewish Hasidic enclave.  The court describes the claims as follows:

Plaintiffs ... bring this action alleging that the Village is a "theocracy," the affairs of which are so "inherently infused by, and entangled, with religion" that its "very existence" violates the Establishment Clause....

Behind the suit is a long-standing and much-litigated dispute between two factions of the Satmar Hasidim over which faction's rabbi should be the leader of the community. The dominant faction that controls the main synagogue (Congregation Yetev) and which holds political offices in the community is led by Grand Rebbe Aron Teitelbaum. (See prior related posting.)  Plaintiffs argue that the Establishment Clause has been violated because:

the Mayor of the Village holds a leadership position in Congregation Yetev, and ... his "dual religious and governmental roles" operate to establish an official faith becuase his religious beliefs trump his governmental role with respect to his actions as Mayor...; [and] all the other Village officials are members of Congregation Yetev, and therefore are controlled by the Grand Rebbe's dictates....

The court held, however that:

the Supreme Court held in McDaniel v. Paty ... that the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy.

The court also rejected on various pleading and procedural grounds-- including res judicata and standing-- several claims by plaintiffs alleging zoning and other actions by defendants that discriminate against the dissidents and their synagogue. However one claim rejected on standing grounds was dismissed without prejudice so it could be refiled with adequate allegations. That was a claim that the town's Community Room Law that requires builders to include a community room in residential developments violates the Establishment Clause because all but one of the community rooms is used as a synagogue.

The Hudson Valley Times Herald-Record and the Mid-Hudson News both report on the decision. [Thanks to Failed Messiah for the link to the decision.]

Azerbaijan Government Agency Busy Examining Religious Literature

According to a report by News.Az yesterday, one of the main roles of Azerbaijan's State Committee for Work with Religious Organizations is the review of religious literature and texts that religious groups wish to distribute in the country. In 2010, the Committee reviewed 18.052 items and found 348 inappropriate for distribution.  In the first 9 months of this year, the Committee reviewed 15,051 items and found 47 inappropriate for distribution.

Michigan Legislature Passes Anti-Bullying Law, Dropping Religious Exemption

Michigan's state Senate yesterday passed the House version of "Matt's Safe School Law," an anti-bullying bill. (Full text of HB 4163). As reported by the Huffington Post, in doing so the Senate gave up on a much more controversial version it had passed earlier which exempted from coverage statements of sincerely held beliefs or moral convictions. That version was strongly criticized by those claiming it would create a religious exemption for bullying of gay and lesbian students. (See prior posting.) HB 4163 contains no similar exception, and requires public schools to adopt anti-bullying policies that prohibit bullying "without regard to its subject matter or motivating animus."

Courts Drawn Into Dispute Over Recall Petitions Circulated By Churches

Earlier this month, an El Paso, Texas church and its pastor filed a federal lawsuit challenging on 1st and 14th Amendment grounds the city's enforcement against churches of a provision of the Texas Election Code that bans corporations from circulating petitions to call an election. (TX Election Code Sec. 253.094). The complaint (full text) in Hoyt v. City of El Paso, Texas, (WD TX, filed 11/17/2011), was filed after the city invoked the state law provision to attempt to stop churches from circulating recall petitions aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) Alliance Defense Fund announced the filing of the lawsuit. Meanwhile, according to KTSM News and an ADF release, Monday in a state court lawsuit brought by the mayor against Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values, and other local residents, the judge refused to issue a preliminary injunction to stop the recall election. The mayor argued that signatures collected in churches on the recall petitions were invalid.