Religion Clause

Monday, February 20, 2012

Sunday, February 19, 2012

Recent Prisoner Free Exercise Cases

In McKennie v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 16924 (WD TX, Feb. 10, 2012), a Texas federal district court held that the rights of a Hebrew-Israelite inmate under RLUIPA were not violated when he was not permitted to congregate on the Sabbath with his fellow believers without a religious volunteer present and was not provided a vegan diet.

In Mathis v. Manza, 2012 U.S. Dist. LEXIS 17147 (WD PA, Feb.9, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 17148, Jan 18, 2012) and dismissed equal protection and Establishment Clause claims brought by a non-religious inmate in a jail's restricted housing unit who complained that religious inmates are allowed access to religious texts and jail visits from religious advisers, while he is not allowed access to non-religious texts and extra visits.

In Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807 (SD WV, Feb. 10, 2012), a West Virginia federal district court rejected RLUIPA. equal protection and retaliation claims by an inmate who adhered to a Taino/Arawak belief system. Plaintiff complained about hair length restrictions, restrictions on tobacco use, restrictions on his use of music during religious observances and interference with his mail. The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 153093, Oct. 6, 2011.

In Santos v. Allen, 2012 U.S. Dist. LEXIS 17206 (D NV, Feb. 13, 2012), a Nevada federal district court held that an inmate had no free exercise claim based on the loss or destruction of a mail-order Passover meal. However the court permitted another free exercise claim, not described in the opinion, to proceed.

In Hallman v. Metts, 2012 U.S. Dist. LEXIS 17393 (D SC, Feb. 13, 2012), a South Carolina federal district court rejected a Muslim inmate's claims that he was not provided adequate and appropriate meals during Ramadan, that he was not provided adequate privacy in communal rest rooms, that n Imam was provided and that he was prevented from praying with other Muslims. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 17390, Jan. 19, 2912.

In Shabazz v. Virginia Department of Corrections, 2012 U.S. Dist. LEXIS 17746 (ED VA, Feb. 13, 2012), a Virginia federal district court ordered various defendants to file a memo explaining their position on equal protection, free exercise and RLUIPA claims of a Nation of Islam plaintiff who wished to purchase Nation of Islam non-music CDs directly from The Final Call. Prison authorities required him to go through the Faith Review Committee for approval to add them to the catalog of the prison's distributor.

In Murden v. DeRose, 2012 U.S. Dist. LEXIS 19112 (MD PA, Feb. 15, 2012), a Pennsylvania federal district court rejected an inmate's claim that his free exercise rights were infringed when, his copy a Qur'an was confiscated for 16 days in a general cleaning of cell contents undertaken in response to a riot.

In Mujahid v. Cunningham, 2012 U.S. Dist. LEXIS 19773 (WD WA, Feb. 16, 2912), a Washington federal district court dismissed an inmate's complaint that unidentified mail room staff trashed or rejected several religious books, magazines and publications. The magistrate's recommendation is at 2011 U.S. Dist. LEXIS 153281, Nov. 8, 2011.

In Barbosa-Orona v. Flores-Dasta, 2012 U.S. Dist. LEXIS 19951 (D PR, Feb. 15, 2012), a Puerto Rico federal district court held that a Catholic inmate who claims he had made a religious vow not to cut his hair had failed to exhaust his administrative remedies before suing over the forced cutting of his hair by prison guards.

In Palermo v. Wrenn, 2012 U.S. Dist. LEXIS 19154 (D NH, Feb. 8, 2012), a New Hampshire federal magistrate judge recommended permitting an inmate to move ahead with his free exercise, RLUIPA and equal protection claims against two defendants. Plaintiff alleged that he was denied access to Asatrú religious services, religious items, literature, and a religious diet on the basis that Asatrú is not a religion, but a white supremacist group.

In Vazquez v. Waln, 2012 U.S. Dist. LEXIS 18186 (D NC, Feb. 14, 2012), a North Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153278, Nov. 28, 2011) and permitted an inmate to move ahead with his free exercise and RLUIPA claims that a correctional officer
interfered with his religious practices by seizing his Religious Box which he needed to engage in prayers. However the court rejected his due process challenge to the seizure.

Saturday, February 18, 2012

2nd Circuit: TRO On Church Use of Schools Only Applies To One Church

As previously reported, on Thursday a New York federal district court issued a temporary restraining order in the long-running case of Bronx Household of Faith v. New York City Board of Education, temporarily barring the Board of Education from enforcing a Chancellor's Regulation precluding use of school buildings for religious worship. Yesterday, the U.S. 2nd Circuit Court of Appeals issued an order (full text) in the case, clarifying that the TRO applies only to evicting Bronx Household of Faith, and does not apply to protect other churches that are not parties to the litigation. However the Circuit Court refused to stay the TRO as it applies to Bronx Household of Faith. Reporting on the 2nd Circuit order, New York Law Journal says that the city and some 50 religious groups had understood the TRO to apply to churches using any public school, and a number of churches were scrambling to get permits for this Sunday.

Canada's Supreme Court Upholds Quebec's Ethics and Religious Culture Program In Schools

In S.L. v. Commission scolaire des Chênes, (Canada Sup. Ct., Feb. 17, 2012), the Supreme Court of Canada rejected a religious liberty challenge to the mandatory Ethics and Religious Culture Program that in 2008 replaced Catholic and Protestant programs of religious and moral instruction. Two parents challenged the program, arguing that it interfered with their obligation to pass on the teachings of the Catholic religion to their children. Justice Deschamps' opinion for 7 justices held:

Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

A concurring opinion by Justices LeBel and Fish agreed that on the current record, the program should not be struck down. They said, however, that once the program is full implemented so that the actual content and approach are known, it may be that a valid challenge will be available.

One News Now reports on the decision. (See prior related posting.)

Dutch Court Dismisses Charges Against Jewish Man Who Could Not Produce ID On Sabbath

DutchNews.nl reports today that an appeals court in the Hague has dismissed charges of failing to produce an identification card that had been brought against an Orthodox Jewish man who for religious reasons did not carry his ID on the Sabbath. A court spokesman said that the defendant's religious requirement was more important than the requirement to meet Dutch law.

UPDATE: DutchNews.nl (Feb. 22) reports that the public prosecution department will appeal the decision.

Preacher Loses Challenge To University's Speaker Rules

In McGlone v. Cheek, 2012 U.S. Dist. LEXIS 18820 (ED TN, Feb. 15, 2012), a Tennessee federal district court upheld rules at the University of Tennessee that permit outside speakers on campus only if they are sponsored by a student organization. The rule was challenged by a Christian preacher who wanted to share his religious beliefs at various outdoor areas on campus, but did not have student organizational sponsorship. The court held that the University's rules were reasonable content-neutral restrictions on use of a limited public forum. The court also rejected vagueness and overbreadth challenges.

Friday, February 17, 2012

Court Can Apply "Neutral Principles" To Dispute Over Removal Of Church Board Members

In Bendross v. Readon, (FL Aoo., Feb. 15, 2012), a Florida appeals court held that the ecclesiastical abstention doctrine does not apply to prevent a civil court from adjudicating a dispute over the make up of the a church's board. Bible Missionary Baptist Church was incorporated as a non-profit corporation under Florida law. Eugene Rice, a member of the church's board,, filed the corporation's 2010 annual report with the state without notice to the remaining directors. The report removed four members of the board and added three new directors. Other board members objected, and eventually filed suit. The court held that since the church by-laws were silent on procedures for removing board members, default provisions in the non-profit corporation law should apply. The court explained:

Because the statute unambiguously establishes procedures of uniform law, the instant dispute "can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy." ... The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint — that Appellees improperly attempted to remove members of the Board of Trustees — are entirely controlled by neutral application of section 617.0808.

House Committee Holds Hearing On Obama Contraception Coverage Mandate

The House Committee on Oversight and Government Reform yesterday held a hearing titled Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience? Eleven witnesses appeared on two panels before the committee. The Committee's website has transcripts of the prepared statements of the witnesses along with videos of the hearing. Reporting on the hearing, McClatchy Newspapers said:

Leaders from the Catholic, Jewish, Baptist and Lutheran faiths joined in opposition to a proposed federal mandate that would require church-affiliated employers to cover birth control in their health plans.

The leaders took part in a highly politicized oversight hearing led by one of President Barack Obama's chief critics, Rep. Darrell Issa, R-Calif. But for those leaders, the issue was deeply serious and personal, touching on one of the basic tenets of the nation's democracy and raising questions about government's place in the faith community.

AP reports that Democrats on the committee were unhappy that Republicans accepted only one Democratic witness. Democrats were also concerned about the fact that only two women were slated as witnesses.

UPDATE: Apparently only ten of the witnesses appeared, with Barry Lynn of Americans United not appearing.

New Jersey Legislature Passes Same-Sex Marriage Bill; Veto Expected

In New Jersey yesterday the Assembly gave final legislative approval to a bill legalizing same-sex marriage. However, according to a report by AP, it is expected that Gov. Chris Christie will veto the bill. The bill (full text) earlier this week passed the state Senate by a vote of 24-16, and then passed the lower house yesterday by a vote of 41-33.

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."