11th Circuit Upholds School's Insistence That Counseling Student Follow Professional Standards For GLBTQ Clients

In Keeton v. Anderson-Wiley, (11th Cir., Dec. 16, 2011), the U.S. 11th Circuit Court of Appeals denied a preliminary injunction to an Augusta State University graduate student seeking a degree in counseling who claimed that her free speech rights were violated when the school insisted she take part in a remediation plan. Student Jennifer Keeton made it clear that because of her Christian religious beliefs that homosexuality is a lifestyle choice, she would have difficulty working with GLBTQ clients. The court said:

We conclude that the evidence in this record does not support Keeton’s claim that ASU’s officials imposed the remediation plan because of her views on homosexuality. Rather, as the district court found, the evidence shows that the remediation plan was imposed because she expressed an intent to impose her personal religious views on her clients, in violation of the ACA Code of Ethics, and that the objective of the remediation plan was to teach her how to effectively counsel GLBTQ clients in accordance with the ACA Code of Ethics....

As the curricular requirement that students comply with the ACA Code of Ethics is neutral and generally applicable, it needs only to survive rational basis review. It easily satisfies this test, as it is rationally related to ASU’s legitimate interest in offering an accredited counseling program.

Judge Pryor filed a concurring opinion. The Chronicle of Higher Education reports on the court's decision.

Muslim Men Who Were Taken Off Flight Sue For Discrimination

A lawsuit was filed in Tennessee federal district court yesterday by two Muslim men who were taken off an Atlantic Southeast Airlines flight from Memphis (TN) to Charlotte (NC) after the pilot was uncomfortable with them being on board. The two-- a professor and a Muslim cleric-- were wearing traditional Islamic dress and were on their way to a conference on Islamophobia and anti-Muslim bias. (See prior posting.) The complaint (full text) in Rahman v. Delta Airlines Inc., (WD TN, filed 12/19/2011) claims that the airline's actions violated federal and state anti-discrimination laws. It also asserts claims for intentional infliction of emotional distress, slander and negligent supervision.  A CAIR press release and a report from the Memphis Commercial Appeal have additional details.

Suit Challenges Refusal To Rent B&B Room To Lesbian Couple

Lambda Legal yesterday announced the filing of a lawsuit in state court in Hawaii on behalf of a lesbian couple who were refused a room at a bed and breakfast by the sole proprietor owner because her personal religious views made her uncomfortable renting to a same-sex couple. The complaint (full text) in Cervelli v. Aloha Bed & Breakfast, (HI Cir. Ct., filed 12/19/2011), alleges that the refusal by owner Phyllis Young to rent a room to Diane Cervelli and Taeko Bufford violates Hawaii statutes, Chap. 489, that prohibits discrimination on the basis of sexual orientation in public accommodations. During the course of an investigation of the matter by the Hawaii Civil Rights Commission, Young expressed her opinion that homosexuality is "detestable" and that "it defiles our land."

Hungarian Constitutional Court Strikes Down Religion Law

Adventist News Network reported yesterday that Hungary's Constitutional Court has struck down Hungary's recently-enacted Law on Churches. The new law which would have gone into effect on January 1 deregistered all but 14 traditional religions.  Some 300 minority religions would have had to reapply to Parliament. The law had been widely criticized by religious freedom advocates. (See prior posting.) [Thanks to Joseph K. Grieboski for the lead.]

Recent Articles of Interest

From SSRN:

• Daniel E. Martin, Whistle Blowing, Religiosity, Spirituality and Integrity: Understanding the Impact of Social Dominance Orientation and Environmental Context, (Journal of Moral Occupational Psychology, Forthcoming).
• C. Christine Fair, Neil A. Malhotra, and Jacob N. Shapiro, A Religion of Peace? Islam and Support for Political Violence, (December, 11 2011).
• Stephen R. Munzer, Bodily Inscriptions as Signs in Medieval Christian Piety and Aztec Rituals, (Journal of Ritual Studies, Vol. 25, No. 2, pp. 37-51, 2011).
• Aaron J. Saiger, Religious Consumers and Institutional Change in American Public Schooling: Cases from Jewish Education, (Journal of Law, Religion and State, Vol. 1, 2012).
• Aaron J. Saiger, Changing the Conversation in Education Law: Political Geography and Virtual Schooling, (Journal of Law and Education, Vol. 41, 2012).

From SmartCILP:

• Jeffrey A. Brauch, Faith-Based Law Schools and an Apprenticeship in Professional Identity, 42 University of Toledo Law Review 593-603 (2011).
• Steven B. Dow, The Eleventh Amendment and Corrections Litigation: The Impact of Sovereign Immunity on the Religious Land Use and Institutionalized Persons Act, 37 New England Journal on Criminal & Civil Confinement 247-265 (2011).
• Scott W. Gaylord, When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum, 79 University of Cincinnati Law Review 1017-1075 (2011).
• Daniel B. Weddle and student Kathryn E. New, What Did Jesus Do?: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation, 37 New England Journal on Criminal & Civil Confinement 325-347 (2011).

Police Officer's Mocking of Plaintiffs' Religion Is Not Free Exercise Violation

In Huynh v. City of Houston, 2011 U.S. Dist. LEXIS 142989 (SD TX, Dec. 12, 2011), Vietnamese owners of a game room in Houston, Texas sue challenging repetitive excessive citations issued to them by a Houston police officer Mark Leija. Plaintiffs alleged that "on one occasion, Officer Leija mocked their religious beliefs by making reference to a Buddha statue inside the game room and by joking with patrons that Plaintiffs' religion and the statue were not helping them."  The court held, however, that: "Because they allege no facts showing that Officer Leija restrained them from the exercise of their religious beliefs, Plaintiffs fail to state a cognizable First Amendment free exercise claim."

Complaint Against Judge's Proselytizing Is Protected Speech; Jury Award Upheld

In Pucci v. Somers, 2011 U.S. Dist. LEXIS 144894 (ED MI, Dec. 16, 2011), a Michigan federal district court upheld a $734,000 jury verdict in favor of Julie Pucci, the former deputy administrator of a Michigan state court, against Mark Somers, the court's chief judge.  Pucci claimed that the termination of her employment was in retaliation for her complaints about Somers' preaching religious beliefs from the civil court bench. The court concluded that Pucci's complaints involved matters of public concern and were made in her capacity as a concerned citizen by approaching the State Court Administrator's Office.  As to disruption in the workplace that might have been caused be Pucci's complaint, the court said: "In this case, the defendant has shown only that the plaintiff's speech caused disharmony in a workplace already ringing with sour notes." Therefore her complaints were protected by the First Amendment. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In White v. Swartz, 2011 U.S. Dist. LEXIS 141927 (D ME, Dec. 6, 2011), a Maine federal magistrate judge rejected an inmate's complaint that his rights under RLUIPA were violated by the sex offender program that involved holding victims up to a "healing light". His complaint that he could not bring his Bible to morning meditations was also dismissed.

In Luzano v. Yates, 2011 U.S. Dist. LEXIS 142650 (ED CA, Dec. 12, 2011), a California federal magistrate judge dismissed, with leave to amend, a Native American inmate's claim that his free exercise and equal protection rights were violated when he was denid access to a sweat lodge.

In Bogard v. Perkins, 2011 U.S. Dist. LEXIS 142801 (ND MI, Dec. 12, 2011), a Mississippi federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 142803, Nov. 1, 2011) and permitted an inmate who was a member of the Nazarite Religious (Hebrew Israelite) Faith to proceed with a free exercise challenge that the state's grooming standards that prevented him from wearing dreadlocks. It also permitted him to proceed with a retaliation claim.

In Johannes v. County of Los Angeles, 2011 U.S. Dist. LEXIS 142530 (CD CA, Dec. 5, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 142528, April 8, 2011), and rejected the claim of an inmate who was civilly detained at tle Los Angeles County jail under the Sexually Violent Predator Act that SVPA detainees were not provided access to religious services.

In Lindensmith v. Jerome, 2011 U.S. Dist. LEXIS 143511 (ED MI, Dec. 14, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 143905, Oct. 25, 2011) and dismissed an inmate's complaint for money damages growing out of the initial refusal to deliver to him four books relating to his Thelema religion. After administrative hearings, he received one of the books and was reimbursed $114 for three of the books that were lost. Plaintiff then sued seeking over $43 million in punitive damages.

In Derrick v. Martin, 2011 U.S. Dist. LEXIS 143608 (ED MI, Dec. 14, 2011), a Michigan federal district court upheld a Department of Corrections policy that restricted the Kosher diet program to prisoners whose sincerity was demonstrated by their passing a test showing a basic knowledge of the Jewish religion and the requirements of keeping kosher.

In Buckley v. Alameida, 2011 U.S. Dist. LEXIS 143845 (ED CA, Dec. 14, 2011), a California federal magistrate judge recommended dismissing a complaint by a Black Orthodox Jewish inmate that his kosher food package was confiscated by officials because it exceeded size and weight limits permitted for inmates to possess.

In Flanagin v. Gurbino, 2011 U.S. Dist. LEXIS 143868 (ED CA, Dec. 13, 2011), a California federal magistrate judge recommended dismissing an inmate's challenge to prison policy that denied kosher meals to non-Jewish inmates.

Suit Challenges North Carolina's Marriage Laws As Free Exercise and Establishment Violations

An unusual lawsuit was filed earlier this month in state court in North Carolina challenging North Carolina's statutes that require any marriage to be solemnized by a magistrate or a member of the clergy (GS Sec. 51-1) and prohibit them from solemnizing a marriage unless the couple has obtained a marriage license (GS Sec. 51-6). The complaint (full text) in Thigpen v. Cooper, (NC Super. Ct., filed 12/8/2011), alleges that (1) it violates the Establishment Clause for the state to make a member of the clergy an agent of the state to perform a marriage ceremony and submit a state granted license; (2) it violates state and federal free exercise protections for the state to require individuals entering into marriage to participate in a state-prescribed ceremony and licensing of the marriage; and (3) it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. The complaint also alleges that the state's marriage requirements violate the personal liberty protections of the 14th Amendment and North Carolina's constitution. The Greensboro News-Record reported on the case last week.

Cert. Filed In San Diego State Christian Fraternity Lawsuit

A petition for certiorari (full text) was filed with the U.S. Supreme Court on Wednesday in Alpha Delta Chi- Delta Chapter v. Reed. In the case, the 9th Circuit Court of Appeals upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that restricts membership or eligibility to hold officer positions on the basis, among others, of religion. However, the court concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limit their membership. (See prior posting.) Alliance Defense Fund issued a press release announcing the cert. filing. ADF summarized its position as follows: "The university is not telling the Democratic club it must be led by a Republican, or the vegetarian club that it must be led by a meat-eater, but it is telling Christian groups that they must allow themselves to be led by atheists."

USCIRF Reauthorized For 3 Years, But 5 Current Commissioners Are Pushed Out

Congress on Friday gave final passage to HR 2867, the United States Commission on International Religious Freedom Reform and Reauthorization Act of 2011, reauthorizing USCIRF until September 30, 2014. Passage came as the Commission was preliminarily preparing to close down. Reauthorization had been stalled in the Senate because of a hold placed on the legislation by Illinois Senator Richard Durbin over an unrelated issue. (See prior posting.) Durbin insisted on amendments to the original House bill in order to lift his hold. After the Senate passed those on Tuesday, the House went along with them Friday. Two articles in World Magazine (1, 2), report in greater depth on the bill's journey through Congress.  Some supporters of USCIRF say that Durbin's amendments will impede the agency's work. In particular, they point to a provision that limits commissioners to two terms.  The terms of present commissioners who have served that length of time now will end in 90 days.  This will eliminate 5 of the 9 current commissioners-- those who have the most experience. The bill also calls on the Comptroller General to submit a wide-ranging evaluation of USCIRF within one year, including an examination of the relationship between the agency and the State Department's Ambassador at Large for International Religious Freedom.

UPDATE: Chairman Leonard Leo will apparently not be subject to the 90 day end of term requirements because, while he has been reappointed for a third time, his first appointment was not for a full term. This posting originally reported that, but briefly reflected the view that 6 members were affected when that was widely reported elsewhere.

New Jersey Court Awards Church Property To Parent Body; Congregants Locked Out For Christmas

The North Jersey Record reports that last week a New Jersey state Superior Court judge ruled that the property of the Community Church of Paramus belongs to the Metropolitan District of the Christian and Missionary Alliance, the church's parent body.  In 2009, the Alliance determined that the Paramus church should close because of declining membership, lack of leadership and financial difficulties. That triggered a clause in the Alliance's constitution that called for the church's property to revert to the Metropolitan District.  Community Church has owned its property since 1929. In 1996 it voted to join the Alliance, but amended its Constitution to reflect that only in 2000.  The court apparently concluded that the 1996 date was the crucial one that prevented the congregation from availing itself of a provision in the Alliance constitution that allows churches affiliated less than 10 years to reject the reversion clause. The Metropolitan District filed suit last year claiming that it was entitled to the property, and last week the court issued an order granting it possession and barring defendants from entering or occupying the property.  On Wednesday of this week, the Metropolitan District changed the locks on the church doors, locking the members out of their planned Christmas worship services. Deacon Peter Ferriero, upset with the decision, said: "We believe in the Lord and we believe this is a battle to expose the Christian and Missionary Alliance, how really what they're doing is stealing."

Defense Authorization Bill Passes With Conscience Protection For Chaplains

Bloomberg reports that Congress yesterday gave final approval to HR 1540, the 2012 National Defense Authorization Act. (Full text of Conference Report.) The bill now goes to the President for his signature. Section 544 of the bill provides:

A military chaplain who, as a matter of conscience or moral principle, does not wish to perform a marriage may not be required to do so.

The section responds to concerns by some that, with the end of "Don't Ask, Don't Tell" in the military, chaplains may be pressured to perform same-sex marriages.  As reported by Mother Jones earlier this week, House Armed Services Committee Chairman Buck McKeon failed in his efforts to include in the bill a total ban on military chaplains performing same-sex marriages.

1st Amendment Prevents Applying Anti-Stalking Law To Harassment of Religious Leader On Twitter

In United States v. Cassidy, (D MD, Dec. 15, 2011), a Maryland federal district court held that the First Amendment's protection of free expression precludes applying the federal anti-stalking statute (18 USC 2261A(2)(A)) to defendant's criticism of a Buddhist religious leader through his blog and through some 8,000  postings on Twitter. The Tweets criticize religious leader Alyce Zeoli and her Buddhist sect. Some involve threats directed at Zeoli. As reported yesterday by the New York Times, the government's indictment alleged that the anti-stalking statute was violated because the postings caused Zeoli substantial emotional distress. In striking down the statute as applied, the court pointed out that Zeoli is "an easily identifiable public figure that leads a religious sect." Many of the Tweets and postings related to the beliefs of her sect and her qualifications as a leader. "Thus this statute sweeps in the type of expression that the Supreme Court has consistently tried to protect."  The court emphasized that no one is forced to see what is posted by another person on a blog or Twitter.  According to the court: "This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference ... is fundamental to the First Amendment analysis in this case."

Suit Challenges Teacher's Reaction To Student's Anti-LGBT Beliefs

The Thomas More Law Center announced yesterday that it has filed a federal lawsuit against the Howell, Michigan Public School District on behalf of a high school student whose teacher removed him from class after he defended his Catholic religious views on homosexuality.  The complaint (full text) in Glowacki v. Howell Public School District, (ED MI, filed 12/14/2011) alleges that defendants violated plaintiff's free expression and equal protection rights.

Oct. 20, 2010 was Spirit Day at Howell High School-- an “anti-bullying” day on which students and faculty wear purple to stop homophobia.  The complaint alleges that "the purpose of the 'anti-bullying' day ... was to indoctrinate students into believing that homosexuality is normal and to shift the blame for the destructive lifestyle of homosexuals to those who believe it is wrong and immoral."

Plaintiff's run-in with his teacher began after the teacher told a female student wearing a Confederate flag belt buckle to remove it because it was offensive. Plaintiff raised his hand and asked the teacher why it was permissible to display a rainbow flag in support of LGBT rights that is offensive to some, but not a Confederate flag. The teacher asked plaintiff whether he supported gays, and plaintiff replied that his religion does not accept homosexuality.  The teacher, it is alleged, told plaintiff that his religion was wrong, and ordered him out of the classroom.

New York's High Court Rejects Suit By Former Parishioners Challenging Church Demolition

Section 5 of New York's Religious Corporations Law calls for approval by "members" of the corporation of certain decisions by the trustees of a religious corporation on use of the organization's property. In Blaudziunas v. Egan, (NY Ct. App., Dec. 13, 2011), former parishioners who objected to the Archbishop's decision to close their church and demolish it sued to enjoin the demolition.  They claim that under Section 5, the decision to demolish the church building must be authorized by the parishioners, who they claim are "members" of the church corporation. New York's highest court disagreed, calling that argument "unavailing." The court concluded that: "Pursuant to the by-laws, parishioners are members of the ecclesiastical body — not members of a corporation. Such status does not confer upon them the rights and duties as members of the religious corporation."

Azerbaijan Tightens Control Of Religious Activities

Forum 18 reports that on December 12, Azerbaijan's president signed into law amendments to the country's Criminal Code and Administrative Code that  increase the penalties for violation of various religious censorship laws and add new restrictions on religious practices. Distributing religious literature that has not been cleared by the state is now punishable by up to 2 years in prison and a fine of up to the equivalent of $8900 (US). Distribution of religious literature by foreigners has now been outlawed, as has sending citizens abroad to study religion without permission of the state. A new provision in the Administrative Code prohibits citizens who have gained their religious education outside of Azerbaijan from carrying out religious rituals and ceremonies of Islam. Numerous other changes are included in the new amendments as well. These changes are the 14th set of amendments to the religion laws in Azerbaijan since 2001.

Today Is Bill of Rights Day and Human Rights Week

Today is Bill of Rights Day, celebrating the 220th anniversary of the adoption of the U.S. Constitution's Bill of Rights-- including the First Amendment.  President Obama last week issued a Proclamation marking the occasion.    This week is also Human Rights Week, and Dec. 10 was Human Rights Day-- both marking the adoption in 1948 by the United Nations General Assembly of the Universal Declaration of Human Rights. The President also issued a Proclamation last week marking these observances.

State Department Hosts Conference On Implementing U.N. Freedom of Religion Resolution

As previously reported, in March the United Nations Human Rights Council, in a major policy shift encouraged by Western nations, unanimously adopted Resolution 16/18 on Freedom of Religion or Belief which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief. On Monday, the U.S. State Department followed up on this by hosting the first implementation meeting of the Istanbul Process for Combating Intolerance and Discrimination based on Religion or Belief. (State Dept. Press Release). Speaking on the opening day of the 3-day meeting (full text of remarks), Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook said in part:

We know that some people distort various religious doctrines to justify intolerance, foment violence, or create strife that serves their narrow political purposes. We must denounce offensive speech whenever we encounter it – but our commitment to universal principles makes clear that faith must never be a crime and religion must never be used as an excuse to stifle freedom of expression.

The meeting has been strongly criticized by some, such as this American Thinker article and this op-ed by Jonathan Turley, fearing it will further the "defamation of religion" agenda of the Organization of the Islamic Conference. Secretary of State Hillary Rodham Clinton responded to this criticism in part of her remarks at the State Department implementation meeting yesterday (full text):

Now I know that some in my country and elsewhere have criticized this meeting and our work with all of you. But I want to make clear that I am proud of this work, and I am proud to be working with every one of you. And I believe that this work is an affirmation of America’s values, but equally important an affirmation of universal values. Because we nor – no country individually has a monopoly on the truth, and we will do better when we live in peace with each other, when we live with respect and humility, and listen to each other. And it is important that we recognize what we accomplished when this resolution ended 10 years of divisive debate where people were not listening to each other anymore.

Now we are. We’re talking. We have to get past the idea that we can suppress religious minorities, that we can restrict speech, that we are smart enough that we can substitute our judgment for God’s and determine who is or is not blaspheming. And by bringing countries from around the world here, we are affirming our common humanity and our common commitment to defend and promote fundamental rights.

USCIRF Releases Report On Human Rights Violations In Sudan

Yesterday the U.S. Commission on International Religious Freedom released a report (full text) on the Sudanese government's violations of international human rights law in the Southern Kordofan and Blue Nile states that border the Republic of South Sudan.  Speaking at a press conference (full text of remarks), USCIRF Chairman Leonard Leo said that even after the Comprehensive Peace Agreement that led to the creation of South Sudan, President Omar al-Bashir is continuing to target people based on religion and ethnicity.