Recent Prisoner Free Exercise Cases

In Grayson v. Schuler , (7th Cir., Jan. 13, 2012), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Posner  reversed a district court's grant of summary judgement for defendant in a damage claim by an African Hebrew Israelite inmate who took a Nazirite vow not to cut his hair. He was forced to cut his dreadlocks. The court held that it is impermissible for a prison to allow "Rastafarians to wear long hair and without justification forbid a sincere African Hebrew Israelite of Jerusalem to do so, even if he is more zealous in his religious observances than his religion requires him to be." The court also rejected defendant's claim of qualified immunity since he could not reasonably have thought that an exclusion from grooming requirements only for Rastafarians was constitutional. Interestingly, for illustrative purposes Judge Posner included as part of the opinion a photo of Jamaican musician Bob Marley with dreadlocks of "formidable length and density."

In Burriola v. Nevada Department of Corrections, (9th Cir., Jan. 12, 2012), the U.S. 9th Circuit Court of Appeals held that authorities did not violated an inmate's rights under the free exercise clause, the due process clause or RLUIPA when they confiscated some of his religious magazines.

In Countryman v. Baca, (9th Cir., Jan. 11, 2012), the U.S. 9th Circuit Court of Appeals rejected an inmate's claim that his free exercise and equal protection rights and his rights under RLUIPA were violated when he was denied access to a hardbound book to study the Greek New Testament.

In Cookson v. Commissioner, Maine Department of Corrections, 2012 U.S. Dist. LEXIS 6842 (D ME, Jan. 4, 2012), a Maine federal magistrate judge recommended rejecting a Satanist inmate's request to hold group Satanist rituals, finding that this would create a risk to prison security despite the individual plaintiff's rejection of violence. There is no evidence that others who might join the group similarly reject vengeance and violence. UPDATE: The court adopted the magistrate's recommendations at 2012 U.S. Dist. LEXIS 35053, March 15, 2012).

In Puckett v. Richland County Commissioners, 2012 U.S. Dist. LEXIS 1845 (ND OH, Jan. 6, 2012), an Ohio federal district court held that plaintiff had not alleged enough facts to support his claim that his free exercise rights are violated by a jail's refusal to permit pretrial detainees to participate in religious services.

In Parker v. Trent, 2012 U.S. Dist. LEXIS 3042 (ND WV, Jan. 10, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151089, Dec. 21, 2011) and dismissed a Muslim inmate's complaint, finding that prison authorities had not intentionally set improper meal and prayer times for Ramadan. They believed they were accommodating plaintiff's Ramadan requirements. Authorities also had legitimate penological reasons to refuse to allow Muslims to pray together.

In In re Garcia, (CA App., Jan. 11, 2012), a California state appellate court held that prison officials violated the free exercise and RLUIPA rights of a Messianic Jewish inmate when it refused to allow him to participate in an existing kosher meal program. The refusal was based on the Jewish chaplain's statement that the inmate was not a traditional Jew. In part of its opinion, the court concluded that state courts have concurrent jurisdiction with federal courts over RLUIPA claims.

In Ruffin v. Commissioner, 2011 U.S. Dist. LEXIS 151358 (D ME, Jan. 19, 2012), a Maine federal magistrate judge recommended dismissing a complaint by  Muslim inmate who wanted to conduct his one-person Friday religious service in a commons areas, instead of only in the privacy of his room as prison officials permitted.

In a press release issued on Jan. 10, the U.S. Department of Justice announced that it has entered into a consent injunction with the Berkeley County, S.C., Sheriff’s Office as to claims raised in Prison Legal News v. DeWitt that detainees were being denied access to books, magazines, and newspapers and denied the right to practice their religion, in violation of the1st Amendment and RLUIPA. The consent decree provides for detainees to have appropriate access to religious and reading materials.

Correctional Officer Who Could Not Carry Bible Loses Title VII Case

In Franks v. Nebraska, 2012 U.S. Dist. LEXIS 2829 (D NE, Jan. 10, 2012), a Nebraska federal district court rejected a Title VII employment discrimination claims by a correctional officer who was not permitted to carry a pocket-sized Bible while at work in the Omaha Correctional Center. His claim that his employer failed to accommodate his religious beliefs failed because he acceded to the requirement and thereby avoided any adverse employment consequences. The court also rejected plaintiff's claim that he was subjected to disparate treatment because of his religion and his claim of religious-based harassment.

Break-Away Presbyterian Congregation Keeps Title To Its Property

In Heartland Presbytery v. Gashland Presbyterian Church, (MO App., Jan. 10, 2012), a Missouri state appeals court held that the property of a break-away Presbyterian congregation was not held in trust for the Presbyterian Church (USA) or its Heartland Presbytery.  The Gashland Presbyterian Church obtained title to the property in 1948, prior to the adoption in the 1980's by PCUSA of the Property-Trust Clause in its Book of Order.  The court held that, under neutral principles of Missouri law, some expression of intent by Gashland to be governed by the Property-Trust Clause is required before an express trust can be created. (See prior related posting.)

Religious Conservatives Meeting In Texas Back Santorum

At a ranch near Brenham, Texas, today a gathering of 150 leading religious and social conservatives agreed on Rick Santorum as their consensus choice for the Republican presidential nomination. The Dallas Morning News reports that on the third ballot Santorum received 85 of the 114 votes cast. Family Research Council head Tony Perkins, speaking for the group, said: "There was this unanimous agreement to replace Barack Obama. And the consensus that emerged here was that Santorum was the best to do that." Perkins said that in the speeches and discussion, there was little reference to Romney's Mormon beliefs. Rick Perry, in whose home state the meeting was held, failed to even make the second ballot. (See prior related posting.)

Trial Court Upholds Indiana's School Voucher Program

AP reports that in Indiana yesterday, a state trial court upheld the constitutionality of the state's Choice Scholarship Program. In a suit filed last year, 12 plaintiffs alleged that the program violates state constitutional provisions that bar the use of tax funds for religious institutions and which require a general and uniform system of common schools. (See prior posting.) The court held that the state is not directly funding parochial schools. Instead scholarships go to parents who can decide at which schools they will be used. The court also held that the state constitution authorizes educational options outside of the public school system.  The decision is likely to be appealed.

South Carolina School Board Agrees To Consent Decree On Religion In Schools

The ACLU announced Thursday that the Chesterfield County, South Carolina school board has voted to adopt a proposed settlement agreement in suit filed against it last month challenging religious activities in the schools.  The complaint focused particularly on an an evangelical revival assembly held at New Heights Middle School, but also alleged other instances of prayer and proselytizing as part of school events. A posting on the school district's website says that the board approved the proposed consent decree at a special meeting on Thursday by a vote of 6-3, explaining:

Following legal advice that various practices and events in the schools related to religion needed to stop occurring, based on court decisions interpreting the Establishment Clause of the U.S. Constitution, the Board majority approved the consent decree and order.  The consent decree and order recognizes that students and teachers do have rights under the Free Exercise and Free Speech provisions of the First Amendment to pray at school under certain conditions and to participate in other religious activities.

The Board was advised that defending the lawsuit would result in a court-imposed order after many thousands of dollars had been spent on legal costs.  The Board wishes to make it clear that it intends to abide by the constitutional principle of separation of church and state, while also recognizing and allowing the permissible exercise of religion by its staff and students and all citizens.

Malaysian Court Rules On Jurisdiction To Decide Validity of Conversion

In Malaysia yesterday, an appeals court held that civil courts have jurisdiction to hear a case brought by a woman who is challenging the validity of her conversion to Islam as a child.  Bernama reports that the decision under appeal (originally handed down by the Penang High Court) had held that only Syariah courts have jurisdiction. Plaintiff Siti Hasnah Vangarama Abdullah claims that she was born into a Hindu family that placed her in an orphanage at age 5. She says that when she was 7, a Muslim Welfare Organization official took her to a Kadi court and ordered her to recite an affirmation of Muslim faith and a rejection of Hinduism. She says she did not understand the meaning of what she was doing, and in any event had no choice in the matter. Defendants on the other hand claim that Siti converted along with her parents and siblings when Siti was only 1 year old. Siti is seeking a court declaration that she was wrongfully required to convert, and is asking the court to order the National Registration Department to change her Muslim name back to her original Hindu name. She also wants the word "Islam" omitted from her identity card.

Defendants In Amish Beard-Cutting Assaults Plead Not Guilty; 5 Held In Jail

The Cleveland Plain Dealer reports that on Wednesday, 12 members of an Amish sect in Ohio who have been indicted on charges of conspiring to violate the federal hate crimes statute and the federal witness tampering law all pleaded not guilty. (See prior related posting.) The charges grew out of assaults that included forcible beard-cuttings carried out against members of a rival Amish faction. Seven of the defendants who have been detained since their arrests in November were ordered to remain in jail. Five other of the defendants who were not in detention were ordered to have no contact with the assault victims. Samuel Mullet Sr., the leader of the group to which defendants belong, was among those jailed.  The court concluded that his release with an electronic monitor was not feasible because Mullet has no electricity in his home.

UPDATE: In a Jan. 18 filing with the court, Samuel Mullet's attorney has said Mullet would install electricity in his home  to permit his pre-trial release with electronic monitoring. (Daily Mail).

Al-Azhar Proposed Bill of Rights Gains Widespread Support By Egyptian Political Parties

Daily News Egypt reports that on Wednesday, the Muslim Brotherhood’s Freedom and Justice Party, the Salafi Al-Nour Party, Al Wafd, and many liberal parties all signed onto a bill of rights drafted by the prestigious Muslim religious institution, al-Azhar. Bikya Masr says that the document took 3 months to draft. It was the collaborative work of Islamic scholars, Christian scholars and secular leaders. The document was also endorsed by a number of candidates for Egypt's presidency. The document, according to al-Azhar head Sheikh Ahmed Al-Tayeb, "preserves freedoms of worship, opinion, scientific research and art and creative expression." In a nod to conservative Islamists, the document also provides that the arts must not "contradict religious sentiments and established social mores."  Hassan El-Shafei, El-Tayeb’s consultant, said: "We do not want Egypt to be an Islamists state, but we also do not want Egypt to be a non Islamic state; we want Egypt as a modern democratic state that is based on Islamic values."

Amish Men Jailed After Refusing To Pay Fines For Not Displaying Orange Safety Triangles

In Graves County, Kentucky yesterday, ten Amish men, all members of the Swartzentruber Amish community, were sentenced to jail terms after they refused to pay fines that had been imposed on them for refusing to display orange reflective triangles on their horse-drawn buggies. AP reports that their sentences ranged from 3 to 13 days for fines ranging from $153 to $627. Displaying the bright orange color conflicts with the Amish men's religious beliefs.  In jail the men will wear specially dyed jumpsuits instead of the stand issue orange ones, and the county jail has agreed that mug shots of them will not be taken. The Kentucky legislature is considering a change in the law that would allow the Amish to use gray reflective tape instead of orange triangles. An appeal is pending in the Kentucky Supreme Court in a similar case. (See prior posting.)

NJ Administrative Law Judge Finds Violation For Refusal To Rent Space For Civil Union Ceremony

AP reported yesterday that a New Jersey Division of Civil Rights Administrative Law Judge has issued a proposed ruling concluding that a religious group, the Methodist-affiliated Ocean Grove Camp Meeting Association, violated the state's public accommodation anti-discrimination laws when in 2007 it refused to rent out its boardwalk pavilion to a lesbian couple to use for their civil union ceremony. The Association claimed that its freedom of religious expression would be infringed if it was forced to permit same-sex civil union ceremonies on its property.  The administrative law judge, however, concluded that the pavilion was a public space which until 2007 advertised itself as a wedding venue without any mention of religious conditions. The state Division on Civil Rights now has 45 days to decide whether to adopt, reject or modify the administrative law judge's ruling. The administrative law judge's conclusions are similar to those reached in a 2008 opinion finding probable cause to proceed in the case. (See prior posting.) The Association now apparently no longer rents out its pavilion to anyone.

New Survey Released On Mormons' Views Of Their Place In American Life

The Pew Forum on Religion and Public Life yesterday released a new survey on what Mormons think about their place in American life. The report titled Mormons in America: Certain in Their Beliefs, Uncertain of Their Place in Society comes as a Mormon is among the leading contenders for the Republican nomination for President of the United States.  According to the new report's Executive Summary:

Many Mormons feel they are misunderstood, discriminated against and not accepted by other Americans as part of mainstream society. Yet, at the same time, a majority of Mormons think that acceptance of Mormonism is rising. Overwhelmingly, they are satisfied with their lives and content with their communities. And most say they think the country is ready to elect a Mormon president.

97% of the Mormons surveyed describe Mormonism as a Christian relgion-- a view disputed by some evangelical Christians. (See prior posting.)

Court Holds Diocese Reorganization Not Subject To Property Transfer Tax

According to a January 9 press release from the Catholic Archdiocese of San Francisco, a California Superior Court judge has finalized a tentative opinion issued in November holding that the archdiocese is not liable for some $20 million in transfer taxes that had been assessed against it in connection with a reorganization  that transferred some 232 archdiocese properties to two new Catholic non-profit holding companies. Apparently the reorganization is designed to protect the properties from any future clergy abuse judgments. (See prior posting.)  According to California Catholic Daily, the court found that the transaction was merely a change in corporate form, not a transfer.

8th Circuit Dismisses Tony Alamo Ministry's Challenge To Seizure of Children

In Tony Alamo Christian Ministries v. Selig, (8th Cir., Jan. 11, 2012), the 8th Circuit dismissed on Younger v. Harris abstention grounds a challenge by Tony Alamo Christian Ministries (TACM) to the 2008 removal by state welfare authorities of minor children from the religious group's compound in Arkansas in order to protect them from abuse. (See prior posting.) TACM claimed that its 1st and 4th Amendment rights, and those of its members, were violated by the seizure of the children and the conditions imposed on parents for their return. Various state court proceedings addressing parents' constitutional claims were ongoing when TAMC filed its federal court challenge. The abstention doctrine applies to TACM because its claims stem from injuries alleged by the children's parents.The court rejected TACM's argument that the state's investigation and seizure of the children were carried out in bad faith. In relying on abstention to dismiss the case, the 8th Circuit avoided deciding whether the district court had correctly denied standing to TAMC. Arkansas News Bureau reports on  yesterday's decision.

High School Prayer Mural Violates Establishment Clause

In Ahlquist v. City of Cranston, (D RI, Jan. 11, 2012), a Rhode Island federal district court held that a high school student has standing to challenge on Establishment Clause grounds a prayer mural that hangs in her school's auditorium.  The mural contains the text of a School Prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court's school prayer decision in 1962. The mural, and another containing the school creed, were presented to the school by the Class of 1963. The court granted plaintiff a permanent injunction requiring immediate removal of the mural.  In finding that it violates the Establishment Clause, the court said in part:

The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature.... No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.

The Cranston Patch reports on the decision, as does the Boston Globe. (See prior related posting.)

UPDATE: The Humanist Examiner reports that the teenage plaintiff in the case has been bombarded with taunts and threats of physical violence, many through social media.

Brazilian Official Wants To Regulate Underwear and Necklines On Wedding Dresses

In the Brazilian town of Vila Velha, apparently the latest superstition among brides is that their marriage will last longer if they wear no panties under their wedding dress during the wedding ceremony.  The London Mail reported Tuesday that Vila Velha council member Ozias Zizi wants to protect clergy from embarrassment and protect the dignity of churches by barring the practice, as well as by regulating the lower limit of necklines on wedding dresses. Zizi admitted his proposed law would be difficult to enforce.

In Canadian Province, Catholic Schools Hit By Complaints Under Parental Rights Law

The Edmonton Journal reported yesterday on the unanticipated consequences of a law enacted in 2009 by the Legislative Assembly in the Canadian province of Alberta. Bill 44, the Human Rights, Citizenship and Multiculturalism Amendment Act, added sexual orientation to the province's anti-discrimination law. It also includes a parental rights provision-- advocated by the Catholic Church among others-- requiring a school to provide notice to parents whenever a class or program will be dealing primarily and explicitly with religion, sexuality or sexual orientation, so the parent can request his or her child be excused from class or not participate. (See prior posting.) Now however in the town of Morinville where all public schools are operated by the Greater St. Albert Catholic schools, it is the Catholic school board that is the subject of parental complaints about the ability to opt out. At least 5 non-Catholic parents have filed complaints with the Alberta Human Rights Commission claiming that their non-Catholic children were forced to receive religious instruction, without the ability to opt out. They say that in the Morinville schools, Catholic doctrine permeates all aspects of the school day. Non-Catholic parents in Morinville (which is no longer a homogeneous Catholic village) are attempting to get a secular school alternative for their children.

Virginia Court Awards Property of Break-Away Churches To Episcopal Diocese

In 2010, the Virginia Supreme Court held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. (See prior posting.) On remand, a Virginia state trial court held a 22-day trial and on Tuesday issued a 113-page opinion in the case. In In re Multi-Circuit Church Property Litigation, (VA Cir. Ct., Jan. 10, 2012), the trial court ruled that all the property of the break-away congregations is to be conveyed to The Episcopal Church's Diocese of Virginia. It held that:

the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese.

Finally the court held that the directors of the Falls Church Endowment Fund are to be elected by the vestry of the continuing Falls Church congregation-- the congregation that remained affiliated with The Episcopal Church.

Episcopal Cafe reports on the reactions of the parties to the court's decision. [Thanks to both John Chilton and George A. Sommerville for the lead.]

Analysis: Some Thoughts On Church Autonomy After Today's Hosanna-Tabor Decision

Today the Supreme Court in the Hosanna-Tabor case applied the ministerial exception doctrine to require dismissal of a suit charging a church with a violation of the the Americans With Disabilities Act in firing a "called" teacher. (See prior posting.)

Chief Justice Roberts' opinion for the court made it clear that the ministerial exception doctrine is required by the Constitution.  He says that both the free exercise and the establishment clause bar government from interfering with the decision of a religious group to fire one of its ministers. Many free exercise cases relate to an individual's freedom to practice his or her religion.  This case, the Court makes clear, is instead about the institutional autonomy of the church.  Chief Justice Roberts early on focuses on the Magna Carta's protection of the Church of England, and emphasizes that:

the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices.

Chief Justice Roberts explains that:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

However, Chief Justice Roberts' characterization of the case belies this rationale.  The Lutheran Church's faith or mission does not call for dismissal of a minister who has a health-related disability. Chief Justice Roberts fails to characterize this case as one in which the state interferes with a Church's decision made on theological grounds to hire or fire a minister.  Indeed, he specifically holds that this is irrelevant:

The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” ... —is the church’s alone.

Should the First Amendment really permit churches to stand above the law on matters having no doctrinal component to them?

Justice Alito's concurrence focuses on a much more persuasive basis for the Court's decision, one based on the church's concern about doctrinal matters:

The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’s doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment.

If the Religion Clauses broadly preclude the government from imposing a minister on a church, presumably they likewise preclude the government from preventing a church from hiring particular clergy. Does this mean that the federal government may not deport an alien who is in the United States illegally when that individual has been chosen to be the minister of a church? Does the principle preclude the state from arresting a minister who is charged with criminal activity because doing so would deprive a church of its chosen religious leader?  Where the Constitution was most concerned about autonomy-- Congress' autonomy from interference by the Executive Branch-- the Constitution did create at least limited immunity from arrest.

And if church autonomy precludes governmental interference in selection of those who will personify its beliefs, does it also preclude governmental interference in the design of church buildings that personify the Church's image to its adherents and to outsiders?  If so, how does that limit zoning laws? Indeed Justice Alito's explanation of church autonomy in his concurring opinion suggests a principle broader than just selection of clergy:

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.

Finally, by holding that the ministerial exception is constitutionally required, the Court seems to call for its application at least in every kind of litigation that deals with hiring or firing of a minister. So while the court says it is not deciding the issue, it seems difficult to envision a court being able to adjudicate a breach of contract claim by a fired minister against his or her church without the court also interfering in the church's choice of its leaders.

Supreme Court Upholds Ministerial Exception To Bar Teacher's ADA Claim

The Supreme Court this morning handed down its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (Sup. Ct., Jan. 11, 2012), concluding unanimously that "there is a ministerial exception grounded in the Religion Clauses of the First Amendment," and that it applies to bar a suit claiming that a "called" teacher at a Lutheran elementary and middle school was fired in retaliation for threatening to bring a lawsuit under the Americans With Disabilities Act. In finding that the exception applied to plaintiff, the court emphasized that she was given the title "minister of religion":

In light of ...  the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we concludethat Perich was a minister covered by the ministerial exception

Chief Justice Roberts writing for the Court, and reversing the decision of the Sixth Circuit (see prior posting), summarized the Court's holding:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Concurring opinions were filed by Justice Thomas, and by Justice Alito joined by Justice Kagan.  Later postings on Religion Clause will offer more analysis of today's opinions.