Student May Hand Out Christmas Party Invitations

In K.A. v. Pocono Mountain School District, 2012 U.S. Dist. LEXIS 28749 (MD PA, March 2, 2012), a Pennsylvania federal district court issued an opinion explaining its denial of reconsideration of a previously granted preliminary injunction (2011 U.S. Dist. LEXIS 121250, Oct. 20, 2011) allowing a 5th grader to distribute flyers to her classmates inviting them to a Christmas party sponsored by her church. In denying reconsideration, the court held that the issue should be analyzed under the standards set out in the Supreme Court's Tinker case, rather than using a non-public forum analysis. The Legal Intelligencer reports on the decision.

Recent Articles of Interest

From SSRN:

• Meredith Render, Religious Practice and Sex Discrimination: An Uneasy Case for Toleration, (Matters of Faith, Austin Sarat, ed., Cambridge University Press, 2012).
• Howard M. Wasserman, Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption, (University of Pennsylvania Law Review PENNumbra, Vol. 160, 2012).
• John D. Inazu, The Limits of Integrity, (Law and Contemporary Problems, Vol. 75, 2012).
• Yossi Nehushtan, Granting Conscientious Exemptions: The Need to Take Sides, (Religion and Human Rights, Vol. 7, pp. 31-58, 2012).
• Roberta Rosenthal Kwall, The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights, (Vanderbilt Journal of Entertainment & Technology Law, Forthcoming).
• Carl H. Esbeck, A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment, (Engage, Forthcoming 2012).
• Beverly I. Moran, Islamic Law Meets Erisa: How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It, (Vanderbilt Law and Economics Research Paper No. 12-6, March 2012).
• Or Bassok, To Die for the Empty Constitution, (March 4, 2012).
• Kenneth Stahl, Local Government, One Person/One Vote, and the Jewish Question, (Chapman University Law Research Paper No. 12-3, March 2012).
• W. Edward Afield, Getting Faith Out of the Gutters: Resolving the Debate Over Political Campaign Participation by Religious Organizations Through Fiscal Subsidiarity, (Nevada Law Review, Vol. 12, No. 83, 2011). 
• Corri Zoli, The ‘God Gap’ in International Humanitarian Law: Lessons Learned from Islamic Jurisprudence, (January 1, 2012).

From SmartCILP and elsewhere:

• Donald L.Beschle, Does a Broad Free Exercise Right Require a Narrow Definition of "Religion"?, 39 Hastings Constitutional Law Quarterly 357-390 (2012).
• Danielle N. Boaz, Dividing Stereotype and Religion: The Legal Implications of the Ambiguous References to Voodoo in U.S. Court Proceedings, 14 Scholar 251-299 (2011).
• Paul Weitzel, Protecting Speech From the Heart: How Citizens United Strikes Down Political Speech Restrictions on Churches and Charities, 16 Texas Review of Law & Policy 155-174 (2011).
• The March 2012 issue of Church & State has recently appeared.

Louisiana Appeals Court Affirms Trial Court Decisions In Church's Factional Dispute

A Louisiana state appeals court last month issued two decisions in the ongoing litigation between factions of a 130-member Baptist church. (See prior posting.) In Mount Zion Missionary Baptist Church v. Jones, (LA App., Feb. 1, 2012), the court upheld the trial court's determinations that the pastor at the center of the controversy had been properly dismissed by the church's board, and in issuing a TRO barring the fired pastor's supporters from conducting any meeting to change the make-up of the church's board. In Ambush v. Mt. Zion Baptist Church, Inc., (LA App., Feb. 22, 2012), the court upheld the appointment of a special master to hold a church election.

Recent Prisoner Free Exercise Cases

In Funderburk v. Neven, (9th Cir., March 6, 2012), the 9th Circuit upheld the dismissal of a claim by a former state prisoner that his free exercise rights were violated when he was not provided a sack lunch as part of the prison's  Ramadan meals.

In Thompson v. Smeal, 2012 U.S. Dist. LEXIS 27456 (MD PA, March 1, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 27967, Feb. 3, 2012) and rejected claims by a Catholic inmate that the Department of Corrections should designate Christmas and Easter each year as feast days and serve the same type of food that is served for feasts of other religions.

In Rich v. Buss, 2012 U.S. Dist. LEXIS 28306 (ND FL, March 4, 2012), a Florida federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 28304, Jan. 12, 2012), and dismissed a Jewish inmate's RLUIPA, free exercise and 8th Amendment challenges to Florida's refusal to provide kosher meals to inmates. Instead it offers vegan meals and meat-free alternative entrees.

In Jean-Pierre v. Bureau of Prisons, 2012 U.S. Dist. LEXIS 28737 (WD PA, March 2, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 28736, Feb.13, 2012) and dismissed a complaint by a Rastafarian inmate over the decision to remove him from the prison's Certified Religious Diet Program. The court held that the decision was reasonably related to legitimate penological interests and thus did not violate plaintiff's free exercise rights. The court also rejected plaintiff's equal protection claim.

In Myslicki v. Gage, 2012 U.S. Dist. LEXIS 29282 (WD TX, March 6, 2012), a Texas federal magistrate judge recommended dismissing as too vague a claim by a paroled inmate in a transition center that he is not allowed to attend the unspecified outside church of his choice on Saturdays or Sundays. He can attend church services at his transition center.

In Watson v. Mecklenburg County Jail, 2012 U.S. Dist. LEXIS 28360  (WD NC, March 2, 2012), a North Carolina federal district court dismissed an inmate's complaint regarding the scheduled time for Muslim Jumah prayer services and a one-time interruption of plaintiff's prayer.

In Cain v. Caruso, 2012 U.S. Dist. LEXIS 29380 (WD MI, March 6, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 29376, Jan. 31, 2012) and dismissed a number of claims by a former inmate who is a follower of the African Shetaut Neter Ausarain religion, but permitted plaintiff to move ahead with his damage claim for violation of his 1st Amendment free exercise rights when he was deprived of his religious diet for 8 days.

Anti-Abortion Group Sues University Over Rules Limiting Its Ability To Restrict Membership On Basis of Belief

Alliance Defense Fund announced last week that it has filed a federal lawsuit against the University of North Carolina Greensboro on behalf of a student anti-abortion group, Make Up Your Own Mind. The complaint (full text) in Make Up Your Own Mind v. Members of the Board of Trustees of University North Carolina Greensboro, (MD NC, filed 2/29/2012), challenges on 1st and 14th Amendment grounds the University's refusal to recognize MUYOM as a student organization because of noncompliance with the University's non-discrimination rules.  MUYOM limits membership to those who agree with its Statement of Faith and religious beliefs regarding the sanctity of life and sexual purity. The University says that MUYOM cannot rely on a belief-based exception in the University policy for religious organizations because the group is not a religious group. It is not affiliated with a church.

Becket Fund Becomes More Proactive In Religious Liberty Advocacy

The Huffington Post today reports on a new activism at the Becket Fund, traditionally a religious liberty advocacy group known for its defense of religious liberty across faith groups.  Under the new leadership of Wall Street trader William P. Mumma, the organization has expanded its fundraising and become more proactive in seeking out potential litigants when a religious liberty issue arises. The Becket Fund has raised its profile by bringing several lawsuits challenging the Obama administration's contraception coverage mandate under the Affordable Health Care Act. (See prior posting.)

Pope Addresses U.S. Bishops On Traditional Marriage

VIS reports on Pope Benedict XVI's remarks (full text) on traditional marriage delivered today in the Vatican to a group of U.S. bishops who who have recently competed their "ad limina" visit. The Pope said in part:

[P]articular mention must be made of the powerful political and cultural currents seeking to alter the legal definition of marriage. The Church’s conscientious effort to resist this pressure calls for a reasoned defense of marriage as a natural institution consisting of a specific communion of persons, essentially rooted in the complementarity of the sexes and oriented to procreation. Sexual differences cannot be dismissed as irrelevant to the definition of marriage. Defending the institution of marriage as a social reality is ultimately a question of justice, since it entails safeguarding the good of the entire human community and the rights of parents and children alike.

In our conversations, some of you have pointed with concern to the growing difficulties encountered in communicating the Church’s teaching on marriage and the family in its integrity, and to a decrease in the number of young people who approach the sacrament of matrimony.... 

On the practical level, marriage preparation programs must be carefully reviewed to ensure that there is greater concentration on their catechetical component and their presentation of the social and ecclesial responsibilities entailed by Christian marriage. In this context we cannot overlook the serious pastoral problem presented by the widespread practice of cohabitation, often by couples who seem unaware that it is gravely sinful, not to mention damaging to the stability of society.

Court Upholds Scientology Church Arbitration Clause

Today's Tampa Bay Times reports that in Clearwater, Florida, a Pinellas County Circuit Court judge has ruled that an arbitration agreement in a Church of Scientology contract with two former members is enforceable. Plaintiffs Lynne Hoverson and Bert Schippers were declared "suppressive" by the Church for publicly criticizing it.  The couple then sued for return of $27,583 that they had made in advance for services never received. The agreement the couple had signed designates prepayments  for services as donations and requires any claim for a refund to be decided by a panel of three active Church of Scientology members. The couple had challenged the arbitration clause, arguing that it was buried in fine print and that it did not allow them to consult with attorneys or negotiate. They say the arbitrators would not be permitted to rule in their favor by the Church. The court disagreed and upheld the clause.

The court however allowed the couple's civil case to proceed as to a refund claim for $7500 placed on account on the Church's cruise ship, because no agreement had been signed as to those funds. The court also permitted them to proceed with their claim for the return $147,183 in "freeloader debt'' they paid in 2008. The amount reimbursed the Church for training and services received by the couple's children while they were members of the Chuch's Sea Org.

Suit Challenges School District Rules Limiting Faith-Based Service Learning Credit

A federal lawsuit filed earlier this week challenges the rules that determine what sort of student activities will count toward service learning requirements of the Fairfax County, Virginia school system. The complaint (full text) in S.S. v. Fairfax County School Board, (ED VA, filed 3-6-2012), alleges that plaintiff's 1st and 14th Amendment rights were violated when the school refused to count, for purposes of remaining a member of the Thomas Jefferson High School National Honor Society, the hours she spent teaching a Sunday school class. Under the school district's rules, faith-based service counts only if it has a secular purpose and is based on a recognized need in the community. Activities must affect individuals beyond the immediate religious community and may not include preparation or participation in the performance of religious services. Alliance Defense Fund announced the filing of the lawsuit.

UPDATE: According to Fox News (3/9), shortly after this lawsuit was filed, Fairfax County school officials announced that they would reverse their decision to place plaintiff on probationary status, saying her faculty adviser was mistaken about the hours teaching Sunday School not counting. According to WUSA News, the student's attorneys will continue the suit in order to get the school's official policy rewritten and to obtain relief for any scholarship deadlines plaintiff may have missed.

5th Circuit Dismisses Disjointed Free Exercise Claim of Former City Employee

In Sawyer v. Wright, (5th Cir., March 7, 2012), the U.S. 5th Circuit Court of Appeals dismissed a free exercise claim brought against an array of church and city officials by a former employee of the city of Austin, Texas. Plaintiff, appearing pro se, claimed that the city fired him when he refused "to lie, cheat, deceive, and steal," which he considers violations of "the religion he was ordained in."  The court, describing plaintiff's pleadings as disjointed and his brief as incomprehensible, held: "Nowhere does [plaintiff] allege a coherent sequence of facts tending to show that his Free Exercise claim is plausible."

Presbyterian Church Loses Malpractice Claim Appeal Against Lawyers In Property Dispute

In Eastminster Presbytery v. Stark & Knoll, (OH App., March 7, 2012), an Ohio appeals court dismissed a malpractice claim brought against a law firm by a local Presbytery of the Presbyterian Church USA after the Presbytery lost its claim that property of a break-away congregation was held in trust for PCUSA. The Presbytery argued that had counsel included a complete and properly authenticated copy of the PCUSA 1981 Book of Order as an exhibit in support of its motion for summary judgment, it would have prevailed in the underlying case. The court of appeals agreed with the trial court that even if a copy of the Book of Order had been properly provided to the court, it would not have changed the result in the case. Despite provisions in the Book of Order stating that church property is held for the benefit of PCUSA, the break-away congregation "did not indicate by words or acts that it intended by its voluntary association with the PCUSA to create a trust over its property." The court also held that the 1st Amendment permits it to apply neutral principles of law to resolve the property dispute and does not require a court to defer to ecclesiastical documents of the parent denomination.

Argentine Court Bars Religion In Public Schools; Bishops Object

CNA reported yesterday that Catholic bishops in Argentina's Salta province are criticizing a local appeals court decision that bars Catholic religious practices in public school classrooms. The decision banned  classroom prayers, grace before meals, the reading of the Bible and the celebration of Catholic feasts in public schools. The bishops, however, asserted: "It is the duty of the public school to respect and creatively pass on the culture and identity of a people," and argued that public expression of faith is a protected right so long as it does not obstruct the functioning of the school or deny the rights of others. The bishops want religion taught in the schools, with parents having the right to opt their children out of the class.

Court Sorts Out Privilege Claims In Discovery of Diocese Documents

Thopsey v. Bridgeport Roman Catholic Diocesan Corp., 2012 Conn. Super. LEXIS 448 (CT Super. Ct., Feb. 15, 2012), involves a dispute over plaintiff's discovery of certain documents in a suit against the Bridgeport Roman Catholic diocese growing our of alleged sexual abuse of plaintiff by a priest, John Castaldo. Plaintiff sought various documents relating to what the diocese knew about the sexual proclivities of Castaldo. The court concluded that 7 of the documents at issue in some fashion seek religious or spiritual advice, aid or comfort, and are therefore protected from disclosure by a state statute protecting confidential communications with members of the clergy. The court found that a number of documents at issue concern the internal management of the diocese and not the claim of tortious conduct. Finally, as to 14 other documents, the court holds that they are not protected by a "free exercise" privilege:

Certainly, the Catholic Church finds the sexual abuse of children to be wrongful. The contribution toward, condoning or causation of such activity in no way comports with the tenets or practices of Catholicism. Government interference with the practices of the Catholic faith are not implicated in this discovery matter. Therefore, the court does not find that invocation of the free exercise privilege is separately warranted as to these 14 documents in light of the allegations of the complaint.

French Presidential Election Debate Focuses On Halal and Kosher Slaughter

The first round of the French Presidential elections are scheduled for April 22. Just as in the U.S., economic issues appear to have become sidetracked in the election battles by church-state and religious freedom issues. This week, the Washington Post, Bloomberg News and Haaretz all report that the issue of halal and kosher slaughter of meat has become a central issue in the bitter election campaign. The furor began with a claim by right-wing National Front party leader Martine Le Pen that in slaughter houses around Paris, all meat is slaughtered according to halal rules and that millions of French people are eating halal meat without knowing it.  Apparently that claim is accurate since the economics of the meat industry lead slaughter houses to use only one method of slaughter. Halal meat can be sold to general supermarkets as well as to Muslim consumers.

Sensing the appeal of the issue, President Nicolas Sarkozy on Saturday called for labels on all meat describing whether or not the animals were stunned before slaughter. Neither halal nor kosher slaughter stuns animals. After Sarkozy's statetment,  Prime Minister Francois Fillon said in a radio interview that "religions should reflect on dietary rules that don’t have much to do with the modern state of science, technology and sanitation." In the same vein, Interior Minister Claude Gueant warned against the Socialist Party's proposal to allow immigrants the right to vote in municipal elections. He said this would lead to Muslims forming majorities on local councils and their requiring halal meat in school cafeterias.

Prime Minister Fillon's remarks have particularly upset Muslim and Jewish leaders who have strongly criticized his statements. Fillon met yesterday with Jewish leaders where he said that nothing should put into question the continuation of ritual slaughter in France. Fillon will meet today with Muslim leaders.

U.S. Agrees To Kosher Food Condition For Extradition of Fugitive From Israel

As previously reported, a trial court in Tel Aviv, Israel last month 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. Haaretz reported today that the U.S. has agreed to the condition for extradition. U.S. authorities say that Lawrence Seth Wayne will be placed in a county jail where he can receive kosher food, until a decision is made on a more permanent facility with kosher food which would house him. [Thanks to Joel Katz [Relig & State in Israel] for the lead.]

Chabad Seeks Contempt Sanctions Against Russia In Suit Over Library Collection

In 2010, the D.C. federal district court issued a default judgement against the Russian Federation in Agudas Chasidei Chabad of United States v. Russian Federation, ordering it to return two collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. (See prior posting.)  Now, according to Blog of the Legal Times, Chabad has filed a request for issuance of contempt sanctions (full text of motion filed 3/5/2012). The filing explains:

Chabad has made a good faith effort to negotiate with Defendants, including multiple meetings at the Russian Embassy in Washington, D.C. Unfortunately, Defendants have not complied with the Court’s judgment. Nor have Defendants agreed to return any portion of the Collection as a result of diplomatic efforts... On January 13, 2012, Russian Culture Minister Alexander Avdeyev announced at a press conference that “A constructive dialogue over the Schneerson Library will be possible only after the U.S. court reverses its decision and the claimant withdraws its lawsuit.” Defendants’ position is unacceptable.

Accordingly, Chabad respectfully requests that the Court enter an Order finding defendants ... in contempt of court and issue a significant daily or weekly monetary sanction against each them for refusing to comply with the Court’s judgment. Chabad also intends to proceed with enforcement of the Court’s judgment ... but will not seek to attach any art or objects of cultural significance subject to the immunity protections of 22 U.S.C. § 2459.

Britain's Equality and Human Rights Commission Issues New Report

Britain's Equality and Human Rights Commission yesterday issued its Human Rights Review, a study of how well public authorities protect and promote human rights in England and Wales. One chapter of the study is devoted to Art. 9 of the European Convention on Human Rights that protects freedom of thought, conscience and religion. The chapter concludes that "Courts are setting too high a threshold for establishing 'interference' with the right to manifest a religion or belief."  The report also criticizes "indirect discrimination" precedents in which British courts focus on group, rather than individual, disadvantage growing out of challenged practices. Christian Today reports that the Evangelical Alliance protested another passage in the Commission's report: "The Commission believes that an employer may legitimately refuse to accommodate an individual’s religious beliefs where such accommodation would involve discrimination on the basis of other protected characteristics."

Religious Objections Raised To Possible Saturday Referendum On Scottish Independence

The Scottish government is planning to hold a referendum in Fall 2014 on Scottish independence from the United Kingdom. (Background).  In response to a Consultation Paper issued by the Scottish government that raises the possibility of holding the referendum on Saturday, the Scottish Council of Jewish Communities plans to say that holding the referendum on Saturday will disadvantage observant Jews.  According to the Press Association yesterday, the draft response by the Jewish organization says that voting by mail is not an adequate alternative since it would require voting before the end of the campaign. The organization is also concerned about pressure on Jews to work at the polls on Saturday.  The Scottish Churches Parliamentary Office that coordinates responses from Christian churches also warns that a Saturday primary could create problems because it might involve counting of votes on Sunday.

Amish Defendants Say Hate Crimes Law Is Unconstitutional and Inapplicable To Alleged Assaults

As previously reported, last November federal prosecutors brought charges of conspiracy to violate the federal  Hate Crimes statute against seven members of the Amish Bergholz clan who allegedly assaulted and cut the beards of 4 members of a different Amish community. Yesterday's Pittsburgh Post-Gazette reported that lawyers who are defending Bergholz clan leader Sam Mullet have asked the court to dismiss the charges on the ground that Congress exceeded its constitutional powers in enacting the Hate Crimes law.  They argue that hate crimes do not affect interstate commerce, and that the crimes involved here were all committed in Ohio. They also argue that the Hate Crimes Prevention Act was designed to protect members of minority religions against actions from those outside it, and that it should not apply where the defendants and the victims were members of the same religion. They say that the assaults here are not alleged to be based on anti-Amish bias.

Suit Invokes Whistle Blower Protections of Dodd-Frank Against Religious Organization

The Tennessean yesterday reported on a lawsuit, recently removed to federal court, testing the extent to which employees of the Southern Baptist Convention and its International Mission Board are protected by the whistle blower protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Sec. 21F of the Securities Exchange Act). Plaintiff is Ron Nollner, a former Nashville Metro councilman, who, with his wife, was sent to India to oversee construction of an office building for the International Mission Board. Nollner says he was fired when he complained about illegal and unsafe  building practices and reported that the builder and the architect were paying bribes to obtain approvals to complete the building. While so far defendants have raised mainly procedural issues, they indicate they will assert the ministerial exception defense if the case is not dismissed on other grounds.