Tribal Free Exercise Challenge To Road Project May Continue

In Slockish v. U.S. Federal Highway Administration, 2012 U.S. Dist. LEXIS 14422 (D OR, Feb. 6, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152892, Sept. 21, 2011), and allowed members of the Yakima Nation Indian tribe to proceed with free exercise and RFRA claims against the Federal Highway Administration. In the case, plaintiffs claimed that a road widening project damaged sacred burial grounds, destroyed religious artifacts and buried a historic camp site, and that a new guard rail blocked their access to the camp site. The court, distinguishing the Supreme Court's decision in Lyng v. Northwest Indian Protective Association, held that there are disputes of fact that prevent granting summary judgment to defendants. The court, however, rejected a number of claims, including assertions of a protected right to maintain traditional culture and a claimed right of familial association to meditate and worship in the presence of ancestors.

U.S. Officials Help Mark Jewish Holiday of Tu Bishvat

Yesterday was the Jewish holiday of Tu Bishvat, a minor holiday also known as the "New Year of the trees."  Haaretz reports that to commemorate the day, the U.S. Department of Agriculture Under-Secretary who oversees the U.S. Forest Service, Harris Sherman, planted a redwood tree in a ceremony held near USDA headquarters in Washington. Other Obama officials this week planted trees in Arizona, Colorado and Israel to mark the holiday.

Washington State Legislature Passes Same-Sex Marriage Bill With Protections For Religious Organizations

The Washington state legislature yesterday gave final passage, and sent to the governor for her signature, SB 6239 legalizing same-sex marriage in the state. The House of Representatives passed the bill by a vote of 55-43, after the state Senate passed it last week by a vote of 28-21. (See prior related posting.)  CNN reports that Gov. Christine Gregoire will sign the bill that will go into effect in June at the end of the legislative session-- unless opponents place it on the November ballot to seek voter disapproval. The bill contains a number of provisions to protect churches, religious organizations and clergy. No member of the clergy is required to perform or recognized a same-sex marriage. No religious organization or religiously affiliated educational institution is required to provide accommodations, facilities (including campus chapels), goods or services related to the solemnization of a marriage. The bill also provides that:

No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section.

 The bill defines "religious organization" to include faith-based social service organizations even if they offer services to the broader community.

11th Circuit: No Religious Discrimination In Lay Off of Christian Counselor

In Walden v. Centers for Disease Control and Prevention, (11th Cir., Feb. 7, 2012), the U.S. 11th Circuit Court of Appeals rejected claims by Marcia Walden, a counselor in an employee assistance program at the CDC, that her free exercise rights under the 1st Amendment and RFRA were violated when she was laid off because of the way in which she handled a client in need of same-sex relationship counseling. Walden was employed by Computer Sciences Corp. which ran the employee assistance program for CDC, and her lay off came when CDC insisted on it.  Walden is a devout Christian who believes that same-sex relationships are immoral.  She referred a CDC employee client to an outside counselor, telling the client that the referral was "based on my personal values".  The client said she felt "judged and condemned" by this referral. Walden refused the suggestion that in the future in referring out a gay or lesbian client, she not say it is because of her values. The court concluded:

The record is devoid of evidence supporting Ms. Walden’s claim that either defendant called for her removal from the EAP contract due to her religiously-based need to refer clients who needed same-sex relationship counseling.

Instead, ... they were concerned that she would behave the same way [in referring out a client] if a similar situation were to arise in the future. And, significantly, Ms. Walden testified that it was not part of her “religious beliefs” to tell clients ... that she could not counsel them due to her religious beliefs or personal values. Instead, she said she wanted “to be honest with my clients.”... She ... explained that “it seemed unfair that [Ms. Doe] was able to talk about being gay and lesbian, and yet I couldn’t freely talk about me and my religious beliefs, or being Christian.... To me, it’s about honesty. If she can be honest – I mean, I should be honest about why I’m transferring her.”

The court also rejected Walden's Title VII employment discrimination claim because reasonable accommodation had been offered by encouraging Walden to seek another position within the company. The Wall Street Journal yesterday reported on the decision.

Evolution Weekend Designed To Show Religious Acceptance of Science

This week end is the 7th annual Evolution Weekend, sponsored by the Clergy Letter Project. The weekend is designed to demonstrate that many religious faiths see no conflict between religion and science. The Project website says:

Religious people from many diverse faith traditions and locations around the world understand that evolution is quite simply sound science; and for them, it does not in any way threaten, demean, or diminish their faith in God. In fact, for many, the wonders of science often enhance and deepen their awe and gratitude towards God.

Suit Challenges Exclusion of Unvaccinated Students When Disease Occurs

Today's New York Daily News reports that two parents are suing school officials over decisions by two principals to send unvaccinated children home when other students at their schools contracted communicable diseases.  Plaintiffs had invoked a state law that allowed them to object on religious grounds to having their children vaccinated. They are now challenging a Chancellor's regulation that allows principals to exclude unvaccinated children for up to 3 weeks when others have contracted measles, mumps, chicken pox or other similar diseases. Neither plaintiff would disclose their religious affiliation, but one explained: "It is my opinion that resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious." The suit was originally filed in state court but has been removed to federal district court in Brooklyn where the court may schedule an emergency hearing soon.

Indian Court Orders State To Pay For 2002 Riot Damage To Religious Buildings

The High Court in the Indian state of Gujarat today ordered the state government to pay compensation to over 500 religious structures that were damaged in riots in 2002, according to the Economic Times. More than 1000 people were killed in the 2002 Muslim-Hindu riots that followed the burning of a train that was transporting Hindu pilgrims. (Background.) The 3-judge court in Gujarat found that inaction and negligence by the state government in preventing the riots resulted in large-scale damage to religious structures. The court ruled in a case brought by the Islamic Relief Committee of Gujarat. The government has already paid damages for destruction of homes and commercial establishments. The High Court ordered the principal judges of the state's 26 districts to receive applications from religious organizations and send their decisions on them to the High Court within 6 months.

USCIRF Urges Obama To Raise Human Rights Issues With China's VP

Chinese Vice President Xi Jinping will be visiting the United States next week. (Voice of America). Yesterday, the U.S. Commission on International Religious Freedom sent a letter (full text) to President Obama urging him to raise human rights and religious freedom concerns during his meetings with Xi, and to take other suggested steps to demonstrate U.S. concern about human rights in China.

White House Suggests Some Bargaining Room On Contraceptive Coverage Mandate

Facing a continued barrage of criticism particularly from Catholic organizations over its mandate requiring coverage of contraceptive services in health insurance plans offered by religiously affiliated universities and hospitals, the White House yesterday suggested that there may be room for compromise.  In the daily press briefing (full text), White House Press Secretary Jay Carney engaged in this exchange with reporters:

          Q   ...  On the decision about the religious-affiliated groups and contraception, you were asked last week if there’s a debate within the administration about reconsidering, and you flatly said, no, the decision has been made.  Does that absolutely remain the case, no reconsideration?

         MR. CARNEY:  It does.  The President is committed to making sure that all women have access to these important preventive services.  But I think it is important to remember what was clearly stated when this policy decision was announced and that is that we will be working with those organizations and individuals who have concerns about the implementation of this rule, and that’s why that time period of a full year beginning in August of 2012 was put into place because the President is very interested in finding the appropriate balance between religious beliefs and convictions -- and he takes those very seriously -- and his commitment to making sure that women of all faiths have access to these important health care preventive services.  So that process will continue. And I think that that point was overlooked in the initial coverage of the decision....

       Q    ... [T]here’s a perception out there -- and in some cases David Axelrod’s comments led some to think that the very implementation you’ve talked about over the next year or so will lead to a different outcome, that in the rule-making, there will be some deal cut, some out given to get away from this controversy.  Ultimately, no matter how it’s implemented, will the bottom line remain the same, that these organizations have to provide that contraceptive coverage?

        MR. CARNEY:  The President’s interest is in making sure that -- on the one side of this balance ... that all ... women here, have access to the same preventive care services.

        He is also concerned about and understands the religious concerns that have been raised and takes seriously the religious convictions that are behind the concerns that have been raised.  And we will work in this period to see if there is a way, to try to find a way to make sure that the implementation of the policy or to see if the implementation of the policy can be done in a way that allays some of those concerns.

        But there are ways to I think help resolve this issue that ensures that we provide that important preventive service, that health care coverage, to all women, and that tries -- in a way that also tries to allay some of these concerns.

The Los Angeles Times characterized Carney's comments as more a shift in emphasis than substance.

South Carolina Now Sells Specialty "I Believe" Plates

AP reported yesterday that South Carolina motorists can now purchase "I Believe" license tags. They have been available since January 4, when they were added to some 130 other specialty plates. By the end of January, 56 pf the new tags had been sold. Specialty plates cost an added $25 which goes to the sponsoring charity.  The new plates are sponsored by www.IBELIEVEsc.net, which will use the profits for nonpolitical community efforts. The plates (photo) feature the letters "JC" between 3 crosses on a hill and the plate number, and also display the sponsoring charity's name.  In 2009, a federal district court held that a special South Carolina government-sponsored statutory authorization of an "I Believe" license tag violated the Establishment Clause. (See prior posting.) The new plates are being issued under the general provisions of SCL Sec. 56-3-8000 "Non-profit organization license plates."

Split 9th Circuit Invalidates Proposition 8 Without Broadly Ruling On Same-Sex Marriage Right

The 9th Circuit U.S. Court of Appeals today, in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. In Perry v. Brown, (9th Cir., Feb. 7, 2012), [opinion on alternate website in case of traffic overload] Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. Instead, the majority concluded:

Proposition 8 servers no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."

The court briefly discussed the argument that Proposition 8 furthered a legitimate interest in protecting religious liberty.  The majority said:

the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California's antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws.... Amicus's argument is thus more properly read as an appeal to the Legislature, seeking reform of the state's antidiscrimination laws to include greater accommodations for religious organizations.

Judge Smith dissented on this issue, concluding that people of California might have rationally believed that Proposition 8 is related to responsible procreation and optimal parenting.

The Court unanimously held that the proponents of Proposition 8 had standing to bring the appeal, and unanimously refused to accept the argument that the decision should be vacated because of the trial judge's interest in being able to marry his own same-sex partner.

Washington Post reports on the decision.

Bishops' Health Insurance Letter Created Special Issues For Military Chaplains

As previously reported, On Jan. 29 Catholic Churches around the country read similar letters from their local bishops condemning the Obama administration's new rules requiring contraception coverage by most health plans, with exemptions that are too narrow to include most Catholic schools and hospitals. It appears that the letter posed particular issues for Catholic chaplains in the U.S. military who received a letter to read from Archbishop Timothy Broglio, head of the Archdiocese for the Military Services USA. God and Country blog reports that  Army’s Office of the Chief of Chaplains e-mailed senior chaplains advising them that Broglio had not coordinated the letter with the Chief of Chaplains Office. The e-mail advised chaplains not to read the letter from the pulpit, but instead to merely mention it in Mass announcements and distribute it in printed form in the back of the chapel. Archbishop Broglio, who apparently believed that this interference violated his religious liberty, contacted Army Secretary John McHugh. Their discussions led to the Army withdrawing its objections to the letter being read from the pulpit, but Broglio removing from the letter one sentence that could have been seen as encouraging civil disobedience. The sentence read: "“We cannot — we will not — comply with this unjust law"

France Opens First Municipal Muslim Cemetery

AFP and RFI report that on Monday, France opened its first municipal Muslim cemetery.  France's 1905 law on the separation of church and state bars creating municipal cemeteries limited to only one religion. This means that cities have been limited to setting aside Muslim-only sections in existing cemeteries.  However the new Muslim cemetery was opened in the city of Strasbourg in the Alsace-Moselle region which is subject to a different basic law because it came under French control only after World War I. Muslims in France see the new cemetery as an important symbol of their belonging after a series of measures aimed at maintaining France's secular tradition, such as one barring wearing the full-face veil (see prior posting), were perceived as anti-Muslim.

Court Says Christian Prayers At County Board Meetings Violate Establishment Clause

On Friday, a Virginia federal district court issued three separate opinions in Jane Doe v. Pittsylvania County, Virginia, (WD VA, Feb. 2, 2012).  In the first opinion, the court denied defendants' motion to dismiss the lawsuit which challenges on Establishment Clause grounds the Pittsylvania County Board of Supervisors' practice of opening its sessions with Christian prayers.The court held that plaintiff, who regularly attends Board meetings, has standing to bring the challenge. The court also rejected defendants' arguments that doctrines of legislative immunity and privilege require dismissal. It concluded that plaintiff adequately alleged that the county's practice violates the Establishment Clause.

In a second opinion, the court granted a preliminary injunction, barring the county "during the pendency of this case, from continuing its present practice of routinely opening its meetings with Christian prayers." It held that plaintiff is "likely to prevail on her claim that the Board's practice of regularly opening meetings with prayers making specific reference to Jesus Christ constitutes government advancement and endorsement of one faith..."

Finally in a third opinion, the court held that plaintiff cannot continue to prosecute the case as "Jane Doe," but must furnish her actual name if she intends to proceed with the lawsuit. An ACLU press release reports on the decisions.

Recent Articles and Forthcoming Books of Interest

Articles from SSRN:

• Abdulla Galadari, Diversity in Heaven: Qur’anic Perspective Beyond Pluralism, (The International Journal of Diversity in Organizations, Communities and Nations, Vol. 11, No. 3, pp. 135–150, 2012).
• Nina J. Crimm, Reframing the Issue and Cultivating U.S.-based Muslim Humanitarian Relief Organizations, (March 20, 2011).
• KIIT Law School, Shakti Deb, A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law, (February 2, 2012).

Forthcoming books:

• Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, Random House, March 13, 2012).
• John J. Coughlin, Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law, (Oxford Univ. Press, Feb. 2012).
• Martha C. Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age, (Harvard Univ. Press, March 19, 2012).

Ron Paul Supporters Object To Religious Limits For Participating In Late Nevada Caucus

As previously reported, the Nevada Republican Party yesterday scheduled an evening caucus to accommodate Orthodox Jews who could not attend Saturday daytime caucuses for religious reasons. The New York Times reports, however, that the party required anyone attending the caucus to sign a declaration under penalties of perjury that he or she had been unable to attend a caucus earlier in the day because of "my religious beliefs."  This would essentially limit participation to observant Jews and Seventh Day Adventists. However many Ron Paul supporters-- encouraged by Paul campaign robo-calls-- who had been unable to participate in earlier caucuses for other reasons tried to attend the evening caucus. Some who refused to sign the declaration were turned away.  The Paul campaign Nevada chairman said that this amounts to illegally creating a religious test to vote, and suggested that a lawsuit could be forthcoming. Apparently a number of Paul supporters signed the declaration even though they had non-religious reasons for attending. At the caucus, Paul receive 183 votes-- nearly 58% of those cast in the caucus. This seems to be an unlikely result if the caucus was attended mainly by Orthodox Jews given Paul's views on Israel.

Challenge To Utah's Polygamy Law Can Proceed Against County Prosecutor

In Brown v. Herbert, (D UT, Feb. 3, 2012), a Utah federal district court held that members of an openly polygamous family (subjects of the television show Sister Wives) have standing to bring suit against the County Attorney to challenge the constitutionality of the state's Anti-Bigamy Statute. However the court dismissed for lack of standing their similar claims against Utah's governor and attorney general. Finding that Utah's Anti-Bigamy statute is generally considered moribund, the court held that plaintiffs needed to show threatening activities by government officials to show that a credible threat of prosecution exists. State officials had taken no action to credibly threaten prosecution. They have announced that they will not prosecute consenting adults for polygamy unless other crimes are also involved. However the Utah County prosecutor's office has taken threatening steps by opening an investigation that led plaintiffs to flee to Nevada. The court held that plaintiffs also have standing under a First Amendment chilling of speech theory. The Salt Lake Tribune reports on the decision.

O Centro Files Land Use Lawsuit Against New Mexico County

O Centro Espirita Beneficente Uniao do Vegetal (UDV), the religious group that in 2006 won in the Supreme Court the right to use hoasca-- sacramental hallucinogenic tea (see prior posting)-- has now filed a land use lawsuit against Santa Fe County, New Mexico. The Santa Fe New Mexican reports that the federal lawsuit, filed on Thursday, grows out of the county commission's 3-2 denial of UDV's application to build a new temple to replace its current facilities that it has outgrown.  The complaint (full text) in O Centro Espirita Beneficente Uniao do Vegetal (UDV-USA) v. Board of County Commissioners of Santa Fe County, (D NM, filed 2/2/2012) charges in 8 counts that the county's denial violated the 1st and 14th Amendments, various provisions of RLUIPA, and the New Mexico Religious Freedom Restoration Act. [Thanks to Eric Rassbach via Religionlaw for the lead.]

Recent Prisoner Free Exercise Cases

In Johnson v. Hetzel, 2012 U.S. Dist. LEXIS 9033 (MD AL, Jan. 26, 2012), an Alabama federal district court adopted a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 152440, Dec. 12, 2011) and dismissed a Muslim inmate's claim that on one occasion while in a restricted privileges dorm he was not allowed to attend a Friday Jumah service.

In Bartholomew v. Moore, 2012 U.S. Dist. LEXIS 10031 (ED CA, Jan. 26, 2012), a California federal magistrate judge recommended rejecting a Muslim inmate's complaint that his free exercise rights were violated when a prison officials insisted that if he wanted to work in the prison's metal fabricating plant he would be required to work on Fridays and miss Jumah services. The court also rejected the claim that plaintiff was not rehired in the prison job because he is a Muslim.

In Ryidu-x v. Wolfe, 2012 U.S. Dist. LEXIS 11546 (D MD, Jan. 31, 2012), a Maryland federal district court rejected an inmate's claim that his constitutional rights were violated when authorities denied him mail order privileges, commissary items, and access to his prison records because of his use of his legally-recognized religious name.

In Sloane v. Neveda, 2012 U.S. Dist. LEXIS 10400 (D NV, Jan. 30, 2012), a Nevada federal magistrate judge granted a Jewish inmate's motion to amend his complaint to add a free exercise claim against a shift supervisor who allegedly failed to protect Plaintiff's constitutional right to observe Passover by assuring delivery of Seder supplies on time and his right to eat only kosher for Passover meals. The court refused to permit amendments to add various equal protection claims.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 11052 (SD NY, Jan.26, 2012), a New York federal district court denied a TRO and temporary injunction to an inmate who is a Santeria Practitioner who claimed that he was disciplined for wearing religious beads in ways that do not conform to prison rules and that his picture was taken wearing his religious beads.

In Jones v. Williams, 2011 U.S. Dist. LEXIS 152524 (D OR, Jan. 25, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152523, Oct. 28, 2011), and dismissed a Muslim inmate's claims that his free exercise rights were violated when he was served pork on one occasion, was ordered to cook pork as part of his kitchen duties, and when grills were not adequately cleaned after frying pork.

In Aladimi v. Hamilton County Justice Center, 2012 U.S. Dist. LEXIS 12283 (SD OH, Feb. 1, 2012), an Ohio federal magistrate judge recommended dismissing on statute of limitations and other pleading grounds a Muslim inmate's complaint that he was denied the right to pray 5 times a day, harassed when he attempted to pray and subjected to offensive remarks by clergy of other faiths who visited the jail where he was housed. The magistrate also recommended denying plaintiff's motion to file a second amended complaint.

In Mestre v. Wagner, 2012 U.S. Dist. LEXIS 12093 (ED PA, Jan. 31, 2012), a Pennsylvania federal district court dismissed a Buddhist inmate's complaint that there was a 7-week delay in obtaining completely vegan meals.

In Johnson v. Nash, 2012 U.S. Dist. LEXIS 11118 (D NV, Jan. 31, 2012), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152580, Sept. 1, 2011) and denied a Muslim inmate's request for a preliminary injunction against retaliatory cell searches. Plaintiff claimed that defendants destroyed his prayer rug by throwing four cartons of milk on it, and shipped out his copy of Islam in Focus because it was an Islamic book.

In Roy v. Dominguez, 2012 U.S. Dist. LEXIS 11230 (ND IN, Jan. 31, 2012), an Indiana federal district court dismissed a former inmate's complaint that while in jail officials would not schedule Jehovah's Witness chapel services, but allowed plaintiff to move ahead with his claim that jail authorities made it difficult for his minister to give him spiritual guidance. NWI Times reports on the decision.

Texas RFRA Claims Survive In Plano School "Candy Cane" Litigation

Yet another decision has been handed down in the 7-year litigation over Plano, Texas Independent School District rules that, among other things, prevented a student from handing out candy canes with attached religious messages. In Morgan v. Plano Independent School District, 2012 U.S. Dist. LEXIS 12875 (ED TX, Feb. 1, 2012), a Texas federal magistrate judge summarized the prior history of the case:

This Court and the Fifth Circuit have upheld the 2005 policy as to its constitutionality. This Court has also upheld the facial constitutionality of the 2004 policy. The Fifth Circuit en banc has held that various administrators were entitled to qualified immunity. After seven years, the issues have narrowed. Yet, the case proceeds on with both parties having very divergent views of the law and how the law applies to the case.

In this phase of the litigation, the school board sought dismissal of Plaintiffs' claims for monetary, injunctive and declaratory relief under both the Texas Constitution and the Texas Religious Freedom Restoration Act. The magistrate judge recommended dismissal of the state constitutional claims, but concluded that the school district had not met its burden under TRFRA to show a compelling interest in the manner that three children were prevented from handing out religious-themed tickets and pencils under their school's 2004 (as opposed to its 2005) policy. (See prior related posting.)