Court Says Evidentiary Hearing Needed On Christian Group's Use Of School Publicity Channels

In Owasso Kids for Christ v. Owasso Public Schools, 2012 U.S. Dist. LEXIS 23000 (ND OK, Feb. 23, 2012), Owassso Kids for Christ (OKFC), a Christian group that wants to share its religious message with students and parents, sued complaining that they were not give the same access as other community organizations for distributing flyers and posting information in the Owasso, Oklahoma public schools. The court held first that an individual plaintiff in the lawsuit, one of the founders of OKFC, has standing to bring a civil rights claim on behalf of OKFC which is an unincorporated association. Moving to the merits of plaintiffs' claim for a preliminary injunction, the court held that the fact the school system has issued a new viewpoint-neutral policy on access to the flyer distribution program, bulletin board, open house events, and for the posting of signs on School property does not automatically dispose of plaintiffs' free speech claim. There is at least a question of whether the new policy is in fact being applied in a viewpoint-neutral manner.

The court went on to hold that an evidentiary hearing will be required if the parties do not reach a settlement:

The evidence submitted by the parties is insufficient for the Court to determine whether the public address system, bulletin board, open house events, and the posting of signs on school property constitute designated public fora or nonpublic fora.... [Plaintiff] has also not shown ... that she was denied access to the speech fora because of the religious nature of her speech. The Court reserves factual findings on these issues, because the record is insufficient for the Court to determine [Plaintiff's] likelihood of success on the merits as to these speech fora.

Recent Prisoner Free Exercise Cases

In Low v. McGinness, 2012 U.S. Dist. LEXIS 20428 (ED CA, Feb. 16, 2012), a California federal magistrate judge recommended dismissing a claim by a Muslim  prisoner that while he was a pre-trial detainee his request for a copy of the Qur'an and Islamic prayer literature was denied. The magistrate recommended that plaintiff's claim that he was denied a halal diet be dismissed, but with an opportunity to amend.

In Lindsay v. Earlston, 2012 U.S. Dist. LEXIS 20627 (MD PA, Feb. 17, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 20720, Jan. 13, 2012) and dismissed free exercise and RLUIPA claims by a Nation of Islam inmate who complained, among other things, of disparaging remarks made about African-American inmates with dreadlocks; a one-time mistaken refusal to show a video of Minister Louis Farrakhan; refusal to videotape NOI meetings for airing on the institutional channel; and refusal for NOI inmates to participate in a fast and feast separate from other Muslim inmates.

Miles v. Moore, 2012 U.S. Dist. LEXIS 21641 (ED VA, Feb. 21, 2012) is a case on remand from the 4th Circuit which ordered the district court to evaluate whether a prison policy limiting the periods during which an inmate could be added to a pass list to attend religious services is the least restrictive means to further a compelling governmental interest. The district court ordered defendants to file a motion setting out their position on this issue and also denied a motion to disqualify the state attorney general's office from representing the prison chaplain.

In Evans v. Somers, 2012 U.S. Dist. LEXIS 20890 (ED NC, Feb. 17, 2012), a North Carolina federal district court dismissed an inmate's challenge to a disciplinary action against him after he was observed nude in his cell.  Plaintiff argued that he was nude because he was  performing Ghusl, ceremonial washing before Jum'ah prayer. However he was observed nude outside the time period permitted by prison regulations for performing Ghusl.

In Vigil v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 21090 (D CO, Feb. 21, 2012) a Colorado federal district court adopted in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 20934, Jan. 24, 2012) and refused to dismiss an inmate's claim that RLUIPA requires recognition of his "Judeo-Christianity" as a faith group and that he should be permitted to participate in accompanying Jewish and Christian practices, including Communion.

In Gee v. Fischer, 2012 U.S. Dist. LEXIS 21279 (ND NY, Feb. 21, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 21280, Jan. 23, 2012) and refused to dismiss an inmate's claim that the prison system's hiring only of Sunni Muslim clergy, and its failure to hire Shi'i clergy and to provide Shi'i Friday Prayer Services, violate his free exercise and equal protection rights.

In Milhouse v. Bledsoe, 2012 U.S. Dist. LEXIS 22704 (MD PA, Feb. 23, 2012), a Pennsylvania federal district court dismissed a Muslim inmate's claim that his free exercise rights were infringed when special management unit inmates were precluded from attending or listening to group religious services, and when components of the special meal at the end of Ramadan were served to non-Muslim inmates as well, thus detracting from the special nature of the meal.

In Fard v. Arpaio, 2012 U.S. Dist. LEXIS 22919 (D AZ, Feb. 22, 2012), an Arizona federal district court  dismissed, with leave to amend, an inmate's claim that his free exercise rights were violated when, during a morning check, a detention officer spoke loudly to him and threatened him while he was praying next to his bed.

In Abdul-Mateen v. Phipps, 2012 U.S. Dist. LEXIS 23216 (WD VA, Feb. 22, 2012), a Virginia federal district court permitted a Muslim inmate to move ahead with various of his claims that his rights under RLUIPA were infringed when officials refused to change his medication schedule to make it consistent with rules relating to the Ramadan fast.

Break-Away Churches Want Court To Reconsider Personal Property Ruling

Last month, a Virginia court held that all the property of seven break-away Episcopal congregations belong to The Episcopal Church's Diocese of Virginia. (See prior posting.) While the court's opinion devoted most of its discussion to the real property of the churches, the decision also held that personal property of the churches follows disposition of the real property.  On Feb. 22, the break-away congregations filed a motion (full text) seeking reconsideration of the court's ruling on personal property-- In re: Multicircuit Episcopal Church Litigation, (Cnty. Cir. Ct., motion filed 2/22/2012). The churches contend that the court's ruling violates rights and the intentions of donors to the congregations. Fairfax City Patch reports on the filing of the motion.

District Judge Defies 2nd Circuit On Scope of Injunction Permitting Churches To Use School Buildings

The tug-of-war between New York federal district court Judge Loretta Preska and the Second Circuit over use of New York City school buildings by churches has gotten more complicated. As previously reported, on Feb. 16 Judge Preska issued a temporary restraining order 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. Even though the 2nd Circuit had upheld the Board's policy of excluding churches from using school buildings after hours for worship services, Judge Preska said that that the 2nd Circuit's decision only dealt with the free speech issue, and that Bronx Household of Faith still had a free exercise claim on which it was likely to succeed. The next day, the 2nd Circuit issued an order limiting the district court's TRO only to enforcement of the regulations against Bronx Household of Faith. (See prior posting.) The court said: "The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties."  Both Judge Preska and the 2nd Circuit promised that their orders would be followed up by full opinions.

Yesterday Judge Preska issued the promised opinion (51 pages). In Bronx Household of Faith v. Board of Education of the City of New York, (SD NY, Feb. 24, 2012), Judge Preska enjoined the Board of Education "from enforcing Ch. Reg. D-180 § I.Q so as to deny Plaintiffs' application or the application of any similarly-situated individual or entity to rent space in the Board's public schools for morning meetings that include religious worship."  In a footnote, Judge Preska explained:

The Court is, of course, aware of the Court of Appeals' order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly-situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.

In explaining why Bronx Household of Faith is likely to succeed on the merits, Judge Preska concluded that the Board's regulation is not a neutral rule of general applicability because it targets religious conduct. This triggers strict scrutiny-- a standard the court found was not met.  The court held that allowing religious services during non-school hours does not violate the Establishment Clause.  She also found that the rule excessively entangles the government in religion because of the way in which the Board of Education investigates whether a church will be engaging in "religious worship services".

New York City plans an immediate appeal of Judge Preska's decision. (Business Week).

Suit Challenges City Council's Invocation Policy

A lawsuit has been filed against the city of Ontario, California challenging city council's practice of opening its sessions with prayer.  The complaint (full text) in Inland Oversight Committee v. City of Ontario, (CD CA, filed 2/6/2012), alleges that more than 75% of the invocations were offered in the name of Jesus, while less than 10% were offered by individuals of non-Christian faiths. The suit claims that this violates the establishment clause as well as provisions of the California constitution. Friday's Inland Valley Daily Bulletin reports on the lawsuit.

Maryland Legislature Passes Same-Sex Marriage Bill; Governor Will Sign It

WBAL-TV reports that the Maryland legislature yesterday gave final passage to House Bill 438, the Civil Marriage Protection Act, which legalizes same-sex marriage in Maryland. A statement issued by the Governor immediately after the bill's passage made clear that he will sign the bill. The state Senate passed the bill yesterday by a vote of 25-22, following passage last week in the House of Delegates by a vote of 72-67. When effective, this will make Maryland the 8th state to recognize same-sex marriage.

The bill provides that clergy may not be required to perform marriage ceremonies that violate their free exercise rights. It also provides a religious organization, or any nonprofit institution supervised or controlled by a religion organization, "may not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual ... related to:  (1) the solemnization of a marriage or celebration of a marriage that is in violation of the entity’s religious beliefs; or (2) the promotion of marriage through any social or religious programs or services, in violation of the entity’s religious beliefs, unless State or federal funds are received for that specific program or service." The bill also contains a non-severability clause, calling for invalidation of the entire law if any part or application of it is found unconstitutional.

In the hard-fought debate in the legislature, opponents raised numerous issues, including a concern that the bill would threaten Mothers Day and Fathers Day.  Opponents promise to seek a referendum on the bill and placed language in it attempting to assure that it would not become effective until after a referendum on it.

U.S. Officials Condemn Iran's Sentence of Pastor For Apostasy

CNN reports that the White House and the State Department have both condemned the death sentence that has been handed down by an Iranian court against Pastor Youcef Nadarkhani, an Iranian Christian charged with apostasy for leaving Islam. A statement (full text) issued by the White House press secretary yesterday reads in part:

The United States condemns in the strongest possible terms reports that Iranian authorities’ reaffirmed a death sentence for Iranian Pastor Youcef Nadarkhani for the sole reason of his refusal to recant his Christian faith.  This action is yet another shocking breach of Iran’s international obligations, its own constitution, and stated religious values.

In its release (full text), the State Department, calling for Nadarkhani's immediate release, said in part:

The United States is deeply concerned by reports that a provincial court has renewed the execution order for Iranian Pastor Youcef Nadarkhani. Mr. Nadarkhani is facing a death sentence on charges of apostasy and has refused to recant his Christian faith. Such government persecution for simply following one’s faith is common in Iran, where followers of many religious traditions face harsh treatment and severe violations of their religious freedom. We have also witnessed a dramatic increase in the arrest of adherents to the Baha’i Faith recently, as well as an increase in repression of freedom of expression in all forms.

Court Upholds City Council Invocation Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, Feb 22, 2012), a Florida federal district court rejected challenges to the invocation policy of the Lakeland City Commission. Before 2010, individuals from a congregation list that included only Christian congregations were invited to deliver the invocation. Beginning in 2010, the policy was changed to expand the congregation list to include all congregations with a presence in the community, including several non-Christian congregations. The court said that legislative prayer, including sectarian prayer, can be constitutionally permissible under the type of selection process which Lakeland had after 2010. The court also rejected challenges to the pre-2010 policy. The Lakeland Ledger reports on the decision. The Lakeland Ledger reports on the decision.

7 States Sue HHS Over Contraceptive Coverage Mandate

Yesterday saw still another lawsuit challenging the Obama administration's mandate requiring most health insurance policies to cover contraceptive services.  This suit was filed by seven state attorneys-general (Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma) along with several Catholic institutions and individuals.  The complaint (full text) in State of Nebraska v. U.S. Department of Health and Human Services, (D NE, filed 2/23/2012) alleges that the mandate violaes the Religious Freedom Restoration Act as well as constitutionally protected freedom of speech, association and free exercise of religion. The section of the complaint relating to the interest the attorneys-general have in bringing the lawsuit interestingly sets forth different allegations of interest for different states. It asserts that the Nebraska and Michigan attorneys-general are bringing the lawsuit on behalf of the people of their state.  As to the other attorneys general, the complaint alleges only that they are bringing the lawsuit on behalf of each of their sovereign states. Nebraska's Attorney General issued a press release announcing the lawsuit.

DOMA Held Unconstitutional By Federal District Court

A California federal district court has held that the Defense of Marriage Act is unconstitutional.  In Golinski v. United States Office of Personnel Management, (ND CA, Feb. 22, 2012), the court held that the equal protection rights of a female staff attorney employed by the U.S. 9th Circuit Court of Appeals were infringed when the Administrative Office of the U.S. Courts refused to process her application to add her same-sex spouse to her family coverage health insurance plan. The court concluded that heightened scrutiny should apply when reviewing statutory classifications based on sexual orientation. It added, however, that even under rational basis review, the statute fails.

In applying heightened scrutiny, the court rejected four justifications identified by Congress in enacting DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. In applying rational basis review, the court also examined three other justifications that Congress might have had:  (1) preserving the status quo in the federal definition of marriage while waiting for the states to tinker with the traditional definition of marriage; (2) an interest in remaining cautious in an area of so much social divisiveness; and (3) avoiding the inconsistency of eligibility for federal benefits turning on the vagaries of state law. The San Jose Mercury News reports on the decision. [Thanks to Volokh Conspiracy for the lead.]

Scientology Australia Asks For Minimum Wage Exemption For Volunteers

In Australia, the Church of Scientology has filed a petition with Fair Work Australia, the national workplace relations tribunal, seeking an exemption from the minimum wage law for church volunteers.  A report from the Daily Telegraph quotes Scientology's public affairs director who says that requiring non-profit organizations to pay minimum wage levels is a violation of human rights. The Telegraph also reports:

The Church of Scientology was investigated by the Fair Work Ombudsman last year for claims some adherents worked up to 72 hours without a break and for as little as $10 a week. However, it was deemed that some of these workers were volunteers.

Recall Petitions Invalidated Because Church Improperly Promoted Them

In Cook v. Tom Brown Ministries, (TX App., Feb. 17, 2012), a Texas state appeals court ordered the decertification of recall petitions that were circulated by Word of Life Church (WOL) in an effort to recall the mayor of El Paso and two city council members.The effort was undertaken after the mayor and the two council members supported restoring health care benefits that had been taken from some city employees by the Traditional Family Values Ordinance that limited benefits to city employees, their legal spouse and dependent children. (See prior posting.)  The court found that WOL had violated Texas election rules:

WOL Church, as a corporation, through the use of its website, promoted the circulation of recall petitions, created a portal whereby volunteers could register through WOL Church to circulate petitions, provided the facility and personnel to assist in the signing and circulation of the recall petitions, and notified the public that recall petitions were available for signing at WOL Church. The evidence establishes that WOL Church made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee ... and that WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee in violation of Sections 253.096 and 253.094(b) of the Election Code.

The court also held that the Texas restrictions on corporate involvement in elections is not inconsistent with the U.S. Supreme Court's Citizens United decision. The El Paso Times last week reported on the decision.

Islamic School Sues Over Rezoning Denial

Ann Arbor.com reports that the Michigan Islamic Academy has filed a federal lawsuit against the Pittsfield Township, Michigan Board of Trustees challenging their denial of zoning changes needed for the Academy to build a new school to replace its current overcrowded facility.  The lawsuit, alleging violations of RLUIPA as well as the 1st and 14th Amendments, claims that the township used fabricated reasons to deny the school's rezoning request. It charges religious discrimination that imposes a substantial burden on the free exercise rights of the school and its students.

Copyright Infringement Claims Against Joel Osteen Dismissed, But With Leave To Amend

In Yesh Music v. Lakewood Church, (SD TX, Feb. 14, 2012), the composers of the song "Signaling Through the Flame" sued televangelist Joel Osteen, his wife and their Lakewood Church for copyright infringement, claiming that they continued to use the song to promote the Osteen's DVD "Supernatural" after the expiration of a one-year licensing agreement. Christian Post reports that "Supernatural" features Osteen speaking about God's plan for each individual. The court held that the Licensing Agreement provided perpetual-use Internet rights only for productions created prior to expiration of the Agreement. However the court dismissed claims against the Osteens for direct or contributory infringement because plaintiffs failed to allege that they had a financial stake in or personally supervised the infringing activity, but gave them 14 days to amend their complaint to cure these pleading problems. The court also rejected defendants' claim that allegations of infringement outside the United States should be dismissed. The complaint alleged that the song was broadcast in ads throughout the United States and in certain foreign countries, and in global broadcasts of church services.  But the court concluded that plaintiffs properly state a claim for extraterritorial infringement because the infringing acts were initiated in the United States.

Chabad Group Loses Challenge To Zoning Denial

In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Lichtfield, Connecticut, 2012 U.S. Dist. LEXIS 20758 (D CT, Feb. 17, 2012), a Connecticut federal district court dismissed constitutional challenges and challenges under the Religious Land Use and Institutionalized Persons Act brought by an Orthodox Jewish group to zoning rulings that prevented it from expanding a building in Lichtfield's Historic District.  Chabad wanted to use the expanded building for religious purposes. Lichtfield County Times reports on the decision.

Washington Pharmacy Board Rules Violate Free Exercise Rights of Objecting Pharmacists

Yesterday in Stormans, Incorporated v. Selecky, (WD WA, Feb. 22, 2012), a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. At issue are Plan B and ella that prevent implantation of a fertilized egg in the uterus. In a 97-page Findings of Fact and Conclusions of Law, a 48-page Opinion, and a Permanent Injunction order, the court held that the rules, as applied to those with religious objections, violate the Free Exercise and Equal Protection clauses. More specifically, the court held:

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs.

The court enjoined the state from enforcing the rules "against Plaintiffs, or against the pharmacies in which Plaintiffs have an ownership or managerial interest, or where Plaintiffs are employed, insofar as those Regulations would prohibit Plaintiffs from declining based on their religious beliefs to stock or deliver Plan B or ella and instead providing a referral to a nearby pharmacy or other location that provides Plan B or ella." The Becket Fund issued a press release announcing the decision. (See prior related posting.)

Court Says Now Scientology Church Can Pursue Discrimination In Zoning Claim

In Church of Scientology of Georgia v. City of Sandy Springs, 2012 U.S. Dist. LEXIS 19087 (ND GA, Feb. 10. 2012), a Georgia federal district court granted a motion for reconsideration of its earlier zoning decision (see prior posting). The earlier decision held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise, but dismissed its RLUIPA discrimination, equal terms and exclusion claims. In its new opinion, the court held that it now believes a question of fact exists as to whether Sandy Springs discriminated against the Church of Scientology on the basis of its religious denomination when, in granting conditional approval of its rezoning application, it refused to allow expansion of the church's existing building based on a lack of sufficient on-site parking. In an amended opinion, the court said:

Based on the entirety of the evidence in the record as more clearly demonstrated by Plaintiff in its motion for reconsideration, in conjunction with new, unchallenged evidence provided in the briefing on ripeness that Plaintiff originally sought a parking variance but was informed by a member of the City's planning staff that no variance was needed because the Church met the City's minimum parking requirement, the Court finds that Plaintiff has now sufficiently demonstrated evidence from which a possible inference of discrimination could be made.

Israel's High Court Strikes Down Law On Deferring Service For Yeshiva Students

Jerusalem Post reports that Israel's High Court of Justice yesterday struck down Israel's "Tal" law-- the "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law."  The law was passed by the Knesset in 2002 and requires renewal every 5 years. The current lawsuit was filed in 2007 by the Movement for Quality Government along with other groups, challenging the small number of haredi men who have enlisted under the law. Yesterday's holding means that the Knesset will not be able to renew the law in its present form this year. The law was designed to encourage haredi (strictly Orthodox) men to enlist in the armed forces. In 2011, 1282 of the men enlisted in the IDF and 1079 in a national service program. In a 6-3 decision, the Court held that the law conflicts with the provision in Israel's Basic Law: Human Dignity and Liberty, Sec. 8 that provides "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." The majority apparently agreed with petitioners' argument that the law does not work because it permits too many yeshiva students to avoid mandatory military service, and creates inequality by transferring the burden of serving to other groups in society.

Two dissenters argued that the government should be given more time to make the law work. A third dissenter said that there is no basis for judicial review of a law granting benefits to a minority group. Prime Minister Benjamin Netanyahu said that a revised version of the law will be forumulated.

En Banc Review By 9th Circuit Sought In Proposition 8 Invalidation

A petition (full text) for a rehearing en banc was filed with the U.S. 9th Circuit Court of Appeals yesterday in Perry v. Brown. In the case, a 3-judge panel of the 9th Circuit (by a 2-1 vote) struck down California's Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) AP reports on the rehearing petition. In a separate motion (full text) filed yesterday, Imperial County Clerk, Chuck Storey, sought again to intervene as a defendant in the case.

Cert. Denied In Claim Challenging Teacher's Anti-Religious Comment

Yesterday the U.S. Supreme Court denied certiorari in C.F. v. Corbett, (Docket No. 11-759). In the case, former high school student Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. The 9th Circuit dismissed the case on mootness and qualified immunity grounds. (See prior posting.) The Orange County Register reports on the Supreme Court's refusal to review the decision.