Religion Clause

Friday, February 17, 2012

New TRO Issued In Bronx Household Case, Keeping Churches In School Buildings

As reported by AP, yesterday a New York federal district court issued a temporary restraining order (full text) against the New York City Board of Education in Bronx Household of Faith v. New York City Board of Education, a suit that most observers had assumed was concluded. The TRO temporarily bars the Board of Education from enforcing against a small Bronx church Chancellor's Regulation D-180. That regulation bars public schools from allowing their buildings to be used for religious worship services or otherwise as a house of worship even though the buildings are available to be used outside of normal school hours for programs by community groups. Most observers thought that the validity of the regulation had been definitively upheld when last December the U.S. Supreme Court denied certiorari in this case which has worked its way up and down the courts for 17-years. (See prior posting.) After the Supreme Court's denial of review of the 2nd Circuit's decision, widely published media reports indicated that scores of churches were being forced to seek out new places to meet, at significant extra cost to the churches. On Feb. 3, plaintiffs in Bronx Household however filed a new motion (full text) in federal district court seeking a preliminary injunction against enforcement of the school board rule, asserting:

While the Second Circuit ruled in June 2011, that the Department’s policy did not violate the Free Speech Clause of the First Amendment, neither this Court nor the Second Circuit have ever analyzed the Department’s policy under the Free Exercise Clause.... Further, that decision also requires new analysis of the Church’s Establishment Clause claim because it excessively entangles the government with religion.

In issuing the 10-day TRO yesterday, Judge Loretta Preska found that plaintiffs had demonstrated irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establishment Clause claims. She also said that a written opinion explaining her ruling further would follow.

State Appeals Court Affirms Attorney Sanctions In Jews For Jesus Case

According to a press release yesterday by Liberty Counsel, a Florida state appeals court has affirmed a trial court order requiring attorney Barry Silver to pay $56,000 in attorneys' fees incurred by Jews for Jesus in a long running case in the state courts of Florida. The case was filed by Silver on behalf of Edith Rapp who claimed that Jews for Jesus published a false report from her missionary stepson that she had joined the organization. The trial court found that the pleadings included redundant, immaterial and scandalous content that the court had previously ordered stricken, and that this involved bad faith litigation conduct on the part of attorney Silver. (See prior posting.) Liberty Counsel also said that the appeals court indicated that if Silver files more motions on appeal, their denial will lead to more sanctions.

Thursday, February 16, 2012

Challenge To Excommunication Dismissed Under Church Autonomy Doctrine

In Cassell v. Christian Science Board of Directors, 2012 Mass. App. Unpub. LEXIS 173 (MA App., Feb. 15, 2012), the Appeals Court of Massachusetts affirmed the trial court's application of the church autonomy doctrine and dismissed a challenge by plaintiff to her excommunication from the Christian Science church. Plaintiff was a member of a "restoration group" that challenged modernization efforts by the board. The court said it was clear that "the First Amendment forbids courts from interfering with a church's internal governance or with the excommunication of its members." The court held that plaintiff's appeal was frivolous and awarded attorneys' fees to defendant.

Christian Employee's Title VII Claim May Proceed

In Grant v. I.N.I. Corp., 2012 U.S. Dist. LEXIS 18113 (D SC, Feb. 14, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 18116, Jan. 25, 2012) and permitted a Christian employee to proceed with a Title VII religious discrimination claim. Plaintiff alleged that he informed his employer about his obligations to his church on Saturdays and Sundays, but that he was continuously scheduled him for Saturday shifts. Management failed to respond to his complaints. He alleges that he was harassed because of the complaints and eventually was terminated from his position.

Revised Contraceptive Coverage Mandate Challenged In Lawsuit

The first lawsuit to challenge the Obama Administration's revised health care reform mandate on insurance coverage for contraceptive services was filed yesterday by Priests for Life, an organization with 50 to 60 employees. The complaint (full text) in Priests for Life v. Sebelius, (ED NY, filed 2/15/2012), claims that the group's free exercise and free speech rights, as well as its rights under RFRA are violated by the mandate requiring its health insurance policy to cover contraceptive services. The suit also claims violations of the Administrative Procedure Act. Focusing for the first time in litigation on the Obama administration's new framework that calls for insurance companies to provide contraceptive coverage without charge when a religious employer has moral or religious objections to paying for such coverage, the complaint alleges:

There is no logical or moral distinction between the original contraceptive services mandate and the “revised” regulation announced on February 10, 2011. Employers who offer health insurance do not pay for individual benefits and products as they are provided. Rather, they pay a premium for a policy that gives their employees access to covered benefits and products when they need them. Under the “revised” regulation, all non-exempted health plans must include contraceptive services among their covered benefits. The choice for religious employers is still between paying an insurer to provide their employees with access to a product that violates their convictions (i.e., contraceptives, sterilization, and abortifacients) or paying a large annual fine to the federal government.

A press release from the American Freedom Law Center reported on the filing of the suit.

Wednesday, February 15, 2012

Mexican Catholic Church Criticized Over Voter Guidelines

Mexico's Constitution (Art. 130) provides that: "priests and ministers cannot form political associations nor carry out propaganda for any candidate, party or political group." AP reported yesterday that Mexico's Catholic Church is being criticized for releasing voter guidelines for the faithful as the July 1 presidential elections approach. The guidelines appear to be in technical compliance with the constitutional requirement, but they implicitly endorse certain candidates. The guidelines say that Catholics may not "choose as a political option those who support or promote false rights or liberties that attack the teachings contained in the Holy Scriptures, tradition and doctrine of the Church." They also say that Catholics should watch for whether candidates and parties support the right to life. These warnings appear to be directed against candidates from the Democratic Revolutionary Party which, in control of the Mexico City government, has legalized abortion and same-sex marriage.

Mormon Church Apologizes For Posthumous Baptism of Holocaust Victims; Comment Sought From Romney

The Los Angeles Times reported yesterday that Mormon Church leaders have apologized to the family of Simon Wiesenthal, a Holocaust survivor and activist in tracking down Nazi war criminals, for the posthumous proxy baptism of Wiesenthal's parents who were Holocaust victims. The proxy ceremonies took place last month at Mormon temples in Arizona and Utah, despite an agreement in 2010 between the Church of Jesus Christ of Latter Day Saints and the American Gathering of Jewish Holocaust Survivors and Their Descendants that the Church would end the practice by removing the names of Holocaust victims from its data base. Mormon Church spokesman Scott Trotter told the Salt Lake Tribune that the church member who submitted the names of Wiesenthal's parents for baptism engaged in a "serious breach of our protocol, and we have suspended indefinitely this person’s ability to access our genealogy records."

Meanwhile the Huffington Post yesterday reported that Holocaust survivor and Nobel Peace Prize winner Elie Wiesel is calling for Republican Presidential candidate Mitt Romney to speak out on the issue of posthumous proxy baptism of Jews after a researcher reported that the names of two of Wiesel's ancestors-- as well as the name of Wiesel himself who is still alive-- had been submitted to a restricted genealogy website from which a process for proxy baptism can be initiated.

British Muslim Cabinet Minister Urges Greater Role For Christianity In Public LIfe

In Britain, Sayeeda Warsi, Co-Chairman of the Conservative Party and the first Muslim to serve as a full member of the British Cabinet is leading a ministerial delegation from the United Kingdom to the Vatican to mark the 30th anniversary of Margaret Thatcher's restoration of Britain's full diplomatic relations with the Holy See. Writing in today's London Telegraph, Warsi argues for a stronger role for Christianity and religion more generally in Britain and elsewhere in Europe. She says in part:

[T]his trip is about more than a Valentine’s Day “love in” with our Catholic neighbours. This is about recognising the deep and intrinsic role of faith here in Britain and overseas. For a number of years I have been saying that we need to have a better understanding of faith in our country.....

I will be arguing that to create a more just society, people need to feel stronger in their religious identities and more confident in their creeds. In practice this means individuals not diluting their faiths and nations not denying their religious heritages....

I will be arguing for Europe to become more confident and more comfortable in its Christianity. The point is this: the societies we live in, the cultures we have created, the values we hold and the things we fight for all stem from centuries of discussion, dissent and belief in Christianity....

My fear today is that a militant secularisation is taking hold of our societies. We see it in any number of things: when signs of religion cannot be displayed or worn in government buildings; when states won’t fund faith schools; and where religion is sidelined, marginalised and downgraded in the public sphere.

It seems astonishing to me that those who wrote the European Constitution made no mention of God or Christianity.

Tuesday, February 14, 2012

"Under God" In Pledge Questioned Under State Constitution

Yesterday's Boston Herald reports on the lawsuit under way in state court in Massachusetts challenging the inclusion of the phrase "under God" in the Pledge of Allegiance. Unlike previous challenges, this one relies on the equal protection clause of the Massachusetts state constitution. The lawsuit argues that atheist children are made to feel marginalized when the Acton, Massachusetts schools recite the pledge that includes the reference to God, even though any child may be excused from joining in the pledge. Last October, other parents as well as the Knights of Columbus filed a motion to intervene in the case to support the constitutionality of the Pledge (full text of memo in support). A hearing in the case was held yesterday. WCVB-TV reports that attorneys for the plaintiff argued: "This is a daily exercise that favors a particular religious view and defines patriotism according to a particular religious belief."

6th Circuit: Injunction Granted To Allow Proselytizing At Sweet Corn Festival

In Bays v. City of Fairborn, (6th Cir., Feb. 13, 2012), the U.S. 6th Circuit Court of Appeals held that a preliminary injunction should issue to prevent enforcement of the policy at the annual Fairborn Sweet Corn Festival held at a 200-acre park in Fairborn, Ohio that allows sales or soliciting of causes only from booths at the Festival. The court read the policy as even barring one-on-one conversations. The suit was filed by two Christian men who wanted to walk around and preach, distribute literature and display signs at the Festival. The court concluded that the policy is not narrowly tailored to serve a significant governmental interest. It pointed out: "Here, there is no fence surrounding the Festival at Community Park and no admission fee to enter.... And Fairborn does little to demonstrate the significance of crowd control at the Festival." AP reports on the decision.

Israel Will Not Extradite Fugitive To U.S. Unless He Will Have Kosher Food In Prison

According to Haaretz, a trial court in Israel on Sunday ruled that a U.S. request for extradition of a convicted hit-and-run driver should be denied unless it is assured that the driver will have access to kosher food while serving his sentence. Jerusalem District Court Judge Ben-Tzion Greenberger pointed to Israel's Extradition Law that prohibits extradition where it will "harm public policy or a crucial interest of the State of Israel." According to the court, if Wayne is not assured kosher food, it would be "a serious violation of his most basic rights to freedom of religion and worship."

In 1998, Lawrence Seth Wayne was sentenced to 19 years in prison by a Florida court on charges of DUI manslaughter. In 2000, after losing an appeal but before he was sent to prison, Wayne fled to Israel using a forged passport and assumed name. Wayne was finally located in Israel last year. Florida stopped offering a kosher food alternative to its inmates in 2007 (see prior posting) but in 2010 began a trial program to reinstate availability through the Aleph Institute. (See prior posting.) The United States could still obtain Wayne's extradition by promising that he will obtain kosher food in his Florida prison or that he will serve his sentence in one of the 35 other states, or in a federal prison, that provide kosher food. However, according to Haaretz, "Florida has refused to allow Wayne to receive kosher food in prison even if he pays for it privately, and insists he must begin serving his sentence in Florida while awaiting the proceedings to transfer him to another state."

Monday, February 13, 2012

Recent Prisoner Free Exercise Cases-- Second Weekly Installment

In Theron v. County of York, 2012 U.S. Dist. LEXIS 16377 (MD PA, Feb. 9, 2012), a Pennsylvania federal district court dismissed claims by an immigration detainee that while housed at a state prison he was not provided an Imam for Jumah services or Halal food during Ramadan, and that one of the defendants destroyed a Quran during a cell search.

In Blankenship v. Reginald, 2012 U.S. Dist. LEXIS 16481 (SD OH, Feb. 9, 2012), an Ohio federal district court refused to appoint counsel and ordered an Asatru inmate to file an amended complaint in a damage claim which was severed from a class action for injunctive relief on behalf of Asatru inmates that was previously resolved. Damage claims under RLUIPA were dismissed.

In Wilson v. Sabatka-Rine, 2012 U.S. Dist. LEXIS 15844 (D NE, Feb. 9, 2012), a Nebraska federal district court dismissed, with leave to file an amended complaint, claims by a Wiccan inmate that he was not allowed to attend group rituals, was denied possession of his religious medallion for 30 days, while in segregation was denied hardcover books and several religious items, and that authorities failed to recruit Wiccan clergy.

In Alexander v. California Department of Corrections, 2012 U.S. Dist. LEXIS 16019 (ED CA, Feb. 8, 2012), a California federal magistrate judge recommended dismissing an inmate's challenge to a California prison regulation that prohibits inmates from possessing non-obscene, "sexually explicit material." Among the challenges rejected was the claim that the provision promotes religious belief in violation of the Establishment Clause.

In Nassar v. Butler County Jail, 2012 U.S. Dist. LEXIS 16421 (SD OH, Feb. 9, 2012), an Ohio federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153057, Sept. 1, 2011) and dismissed a Muslim inmate's complaint that authorities did not provide him adequate Ramadan meals and wrongfully removed him from the Ramadan observance list while he was a pretrial detainee.

In Snyder v. Swarthout, 2012 U.S. Dist. LEXIS 16300 (ED CA, Feb. 7, 2012), a California federal magistrate judge recommended denying an inmate's habeas corpus petition, rejecting the claim that the Board of Parole Hearings conditioned his release on parole on his participating in a religious 12-step program of NA or AA.

Saudi Writer Deported Home To Face Blasphemy Charges

The New York Times reported yesterday that Saudi journalist Hamza Kashgari was stopped by Malaysian authorities at Kuala Lumpur airport on Thursday and was deported back to Saudi Arabia at the request of the Saudi king where the journalist will face blasphemy charges. The journalist has angered Saudis by writing in a series of tweets on Twitter about an imaginary meeting with the Prophet Muhammad. The Daily Beast quotes some of the tweets. Human Rights Watch says that Kashgari will face a possible death sentence in Saudi Arabia. Kashgari was attempting to fly on to New Zealand when he was detained. A lawyer hired by Kashgari's family obtained an order from a Malaysian court on Sunday that would stop Kashgari's deportation, but the lawyer discovered that Kashgari had by then already been returned to the Saudis on a private Saudi jet.

Lawsuit Challenges Limits On Keeping Animals As Impairment of Religious Freedom

Cecil Daily reported last Friday on a federal lawsuit field by a Chesapeake, Maryland man who has been ordered by Cecil County (MD) officials to get rid of his pet goat. Under the county zoning code, a homeowner can keep animals, other than dogs and cats, only on property that is at least an acre in size. However homeowner Craig Balunsat says that he needs his goat, as well as his six chickens and two ducks in order to practice his Native American religious beliefs. His lawsuit alleges that his "native American religious beliefs require the keeping of his pets as a balance of symbiosis and harmony between animals and humans, and his Messianic Judaism Christian beliefs coincide with this."

British Court Acquits Street Preacher Who Condemned Gay Couple

The London Mail reports that lay Christian street preacher, Michael Overd, was acquitted last Thursday by Taunton Deane Magistrates court of charges of directing threatening or abusive language at Craig Manning and Craig Nichol, a gay couple. Apparently Overd had a previous altercation with the couple in 2010. When he saw them again in July 2011, he said: "I have already told these two sinners over here that they are going to burn in hell." Nichol asked who he was to judge him. Overd replied that it is God's words. Overd's attorney argued that Overd was merely reciting a passage from 1 Corinthians that reads: "Neither the sexually immoral nor idolaters nor adulterers nor homosexuals nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God."

Scientology Church Withdraws Temporary Injunction Request To Avoid More Damaging Testimony [Corrected]

According to the San Antonio Express-News, the Church of Scientology last Friday decided to withdraw its request for a temporary injunction in a suit against a former church official and her husband after testimony by defendant in a Texas state court in the case described physical abuse and detention of Scientology adherents who fell out of favor with church leadership. Debbie Cook, who spent 29 years with the church, including 17 as an official at its spiritual headquarters in Clearwater, Florida, left the church in 2007. In exchange for a payment of $100,000, she and her husband signed a nondisclosure agreement. However last December she sent out an e-mail to other Scientologists charging that the church had strayed from the teachings of its founder, L. Ron Hubbard. In January, the Church sued charging breach of the nondisclosure agreement. But in court, Cook's attorney argued that the agreement was signed under extreme duress. The Express-News described Cook's testimony supporting this defense as "lurid and highly damaging" to the church. In moving for dismissal of its case, attorney for the Church of Scientology said that withdrawal will "prevent the defendant from using the court as a pulpit for false statements." [An earlier version of this posting incorrectly reported that the entire lawsuit, rather than just the request for a temporary injunction, had been withdrawn.]

Sunday, February 12, 2012

Victim Withdraws Suit Against Vatican In Favor of Bankruptcy Proceedings

Now that sex abuse victim claims have all been filed (see prior posting) in the bankruptcy proceedings of the the Catholic Archdiocese of Milwaukee, the Archdiocese reports that in bankruptcy court proceedings on Feb. 9:

The judge ruled that the claimants could no longer bring a negligence claim against the archdiocese. It also found that the claimant seeking to upset a prior settlement failed to meet the high standard under Wisconsin law to upset the settlement and disallowed the claim. The judge determined that the question of whether the fraud claims should be dismissed on statute of limitations grounds needed to be considered in further proceedings that would determine the factual issues.

The Milwaukee Journal-Sentinel reported yesterday that in response to the court's allowing the fraud claims to proceed to trial, a lawsuit filed in 2010 (see prior posting) against the Holy See, the Pope, and two Vatican cardinals has been withdrawn. The suit sought damages because of sexual abuse plaintiff suffered in the early 1960's at the hands of Rev. Lawrence Murphy who taught at St. John's School for the Deaf in suburban Milwaukee. Jeffrey Anderson, attorney for the plaintiff, who also represents victims in the bankruptcy proceedings, said that his client "felt that his energies would be best spent working alongside fellow survivors toward justice and healing at the archdiocese level." Presumably the plaintiff has filed a claim in the bankruptcy proceedings.

British Court Rules On Opening Town Council Meetings With Prayer

The dispute over opening city council sessions with prayer which has surfaced in many U.S. cities has now, according to the Telegraph, also become the subject of legal dispute in Britain. A trial court has ruled in a challenge to the practice brought by the National Secular Society and a secular member of Council in the town of Bideford. In National Secular Society v. Bideford Town Council, (EWHC, Feb. 10, 2012), the London High Court held that under the Local Government Act 1972, there is no statutory authority for a town council to have prayers or a period of quiet reflection as a part of the Council's business. It went on to hold, however, that if prayer were permitted, it would not violate the religious discrimination provisions of the Equality Act 2006 (now replaced by the Equality Act 2010). The court, referring to claims by the secular member of Council, said in part:

I do not see that the feelings of discomfort or exclusion which he has, and which he says are shared by a number of other actual or possible Councillors in the minority on this issue, should be regarded as a discriminatory disadvantage when its elimination would prevent the degree of comfort or composure which the majority seek being achieved, merely substituting one set of uncomfortable feelings for another.

However, according to today's Telegraph, Communities and Local Government Secretary Eric Pickles says that Britain's new Localism Act 2011 which will become effective in the next few weeks gives Councils a new “power of competence” to determine their own procedures. According to Pickles, this new power should be broad enough to allow Councils to include prayers to open their meetings.

Recent Prisoner Free Exercise Cases

In Sharp v. Johnson, (3d Cir., Feb. 9, 2012), inmates who were members of the Habashi sect of Sunni Islam sought, and were refused, separate religious services from the existing Sunni services. In affirming the district court's judgment for defendants, the 3rd Circuit held that RLUIPA does not impose liability for damages in suits against defendants in their individual capacities. It also held that prison officials, in defending against a 1st Amendment free exercise claim, have the burden to show a connection between a restriction and penological interests, but the trial court error in that regard did not matter because here defendants had qualified immunity.

In Davis v. Castelloe, (4th Cir., Feb. 2, 2012), the 4th Circuit, reversing the district court, held that an inmate's free exercise claim survives frivolity review. The district court (2011 U.S. Dist. LEXIS 152786, ED NC, April 15, 2011) had dismissed plaintiff's claim that religious property belonging to him, including a prayer book, other books, a rosary and a crucifix were destroyed by the chaplain who was "anti-Catholic" and who denied the Catholic community equal time as other religious groups.

In Damron v. Jackson, 2012 U.S. Dist. LEXIS 13359 (SD OH, Feb. 3, 2012), an Ohio federal district court denied a motion to amend its earlier decision that rejected a complaint over a prison's refusal to permit separate congregate worship services for Christian Separatist adherents.

In Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana, 2012 U.S. Dist. LEXIS 13121 (SD IN, Feb. 3, 2012), an Indiana federal district court, in a lawsuit by convicted enemy combatant John Walker Lindh, held that recitation of the 5 daily Muslim group prayers is a religious exercise based on Lindh's sincerely held religious beliefs. But genuine issues of material fact remain as to whether a restriction on group prayer substantially burdened Lindh's free exercise and, if it did, whether the government showed a compelling interest and least restrictive means.

In Thaxton v. Simmons, 2012 U.S. Dist. LEXIS 12841 (ND NY, Feb. 2, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 13555, Jan. 5, 2012) and dismissed an inmate's claim that his free exercise rights were violated when his kosher food tray was contaminated on two occasions.

In Lister v. Coleman, 2012 U.S. Dist. LEXIS 15016 (ND OH, Feb. 6,2012), an Ohio federal district court held that an inmate had not sufficiently alleged a free exercise claim through a general allegation that he was denied the right to purchase religious items to practice his Native American Indian religion.

In Martz v. SCI-Coal Township Therapeutic Community, 2012 U.S. Dist. LEXIS 15821 (MD PA, Feb. 8, 2012), a Pennsylvania federal district court permitted an inmate to proceed against certain defendants on his complaint that he was required, in order to receive favorable parole consideration, to complete a substance abuse program that violated his religious beliefs.

In Porter v. Van Tatenhove, 2012 U.S. Dist. LEXIS 15396 (WD MI, Feb. 8, 2012), a Michigan federal district court rejected claims by an inmate that he had the right to have his religious name, which he legally adopted after his commitment, appear on his prison pass.

In Johnson v. Alvarez, 2012 U.S. Dist. LEXIS 14253 (D NV, Feb. 7, 2012), a Nevada federal district court denied an inmate a preliminary injunction, rejecting his claim that he was disciplined for disobedience solely because he was a Muslim practicing his religious beliefs.

In North v. Clarke, 2012 U.S. Dist. LEXIS 15204 (ED VA, Feb. 7, 2012), a Virginia federal district court granted an inmate summary judgment, holding that a Department of Corrections policy that allows inmates to receive music and religious CD's, but not secular spoken-word CD's, violates the 1st and 14th Amendments. However, the court denied an award of damages on qualified immunity grounds.

In Cottier v. Schaeffer, 2012 U.S. Dist. LEXIS 14062 (D SD, Feb. 6, 2012), a South Dakota federal district court held that plaintiff failed to plead facts to support his claim that, while in prison, he has not been permitted to "worship through ceremonials and traditional rites of the Lakota Nation."

In Turner v. Gibson, 2012 U.S. Dist. LEXIS 16065 (ED CA, Feb. 9, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that Catholic, Muslim, Buddhist and Jewish prisoners in administrative segregation are not provided spiritual counseling or services.

In Colvin v. Caruso, 2012 U.S. Dist. LEXIS 16151 (WD MI, Feb. 9, 2012), a Michigan federal district court, in a case on remand from the 6th Circuit, issued declaratory relief finding that a Department of Corrections policy that provides a prisoner's religious menu is to be revoked for mere possession of "any food item that violates a tenet of his or her designated religion" violates prisoners' free exercise rights. Here plaintiff was taken off a kosher diet after a non-kosher powder protein supplement was found in his cell.