Religion Clause

Thursday, May 24, 2012

Court Upholds Termination of Catholic School Principal, Rejecting Retaliatory Discharge Claim

In Petschonek v. Catholic Diocese of Memphis, 2012 Tenn. App. LEXIS 330 (TN App., May 23, 2012), a Tennessee state appeals court dismissed a retaliatory discharge claim brought by the former principal of a Catholic school against the Diocese of Memphis. Plaintiff claimed that the Diocese terminated her employment in retaliation for her refusal to remain silent about the misuse of $50,000 raised by parents to purchase computer equipment for student use. The court refused to decide whether plaintiff's claim was barred by the ministerial exception doctrine because the issue had not been not been certified for interlocutory appeal, decided by the trial court, or raised as an affirmative defense by the Diocese. However the court added:

In so doing, we express no opinion on whether an action alleging common law retaliatory discharge, a cause of action intended to protect the public by encouraging employees to report an employer's illegal or unethical activity ... is sufficiently similar to a cause of action alleging retaliatory discharge in violation of the ADA, a statute protecting certain individuals from discrimination in the work place, to warrant application of the ministerial exception.

The court however granted summary judgment for defendant, holding that the retaliatory discharge doctrine applies only to employees at will. Plaintiff here was under contract. The contract permitted the Diocese to discharge plaintiff without cause before the end of the contract period, and entitled plaintiff to 30 days' pay if that happened.

George Washington's Letter On Religious Tolerance To Go Back On Public Display

CNN reported yesterday that George Washington's famous 1790 letter to the Hebrew Congregation in Newport, Rhode Island, will go back on public display after sitting in storage for nearly a decade. The Forward, which has pressed for release of the letter, reported earlier this month as well on the agreement with the Morris Morgenstern Foundation. The arrangement permits the letter to be displayed at the National Museum of American Jewish History in Philadelphia for 3 months per year for the next 3 years. The letter (full text) is an early affirmation of religious tolerance in the United States:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter will be displayed this year as part of an exhibit titled "To Bigotry No Sanction: George Washington and Religious Freedom," which will run June 29 to September 30.

President Objects To House Passed Defense Bill's LGBT Related Provisions

The U.S House of Representatives last week passed, and sent to the Senate, HR 4310, the 2013 National Defense Authorization Act (full text.) The bill contains two provisions relating to same-sex unions and to broader issues of conscience rights in relation to gays and lesbians. Section 536 of the bill provides in part:

(a) Protection of Rights of Conscience- The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.....

(b) Protection of Chaplains- .... (2) No member of the Armed Forces may--

(A) direct, order, or require a chaplain to perform any duty, rite, ritual, ceremony, service, or function that is contrary to the conscience, moral principles, or religious beliefs of the chaplain, or contrary to the moral principles and religious beliefs of the endorsing faith group of the chaplain; or

(B) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a direction, order, or requirement prohibited by subparagraph (A)....

Section 537 of the bill provides:

A military installation or other property owned or rented by, or otherwise under the jurisdiction or control of, the Department of Defense may not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Last week the White House issued a Statement of Administration Policy objecting to several provisions in the bill. The Statement says in part:

The Administration strongly objects to sections 536 and 537 because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law. Section 536 would prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline. Section 537 would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.

LifeSite News on Tuesday reported on the controversy over these provisions.

New Hampshire High Court Upholds Partial Tax Exemption For Church Property

In Appeal of Liberty Assembly of God, (NH Sup. Ct., May 22, 2012), the New Hampshire Supreme Court held that under state statutory law, space in a house of worship must be used and occupied directly for religious training or for other religious purposes in order to be tax exempt. It thus upheld a decision of the New Hampshire Board of Tax and Land Appeals exempting only 60% of a church's main building. The court observed, however: "that an apportionment inquiry 'must not be taken to an absurd extreme so that every square foot of a building is rigidly scrutinized. Rather, . . . judgment is the touchstone.'" The court also rejected the argument that civil authorities would become unconstitutionally entangled with religion, in violation of the Establishment Clause, if they examine the religious uses and purposes of each room in the main building. The Concord Monitor reports on the decision.

Wednesday, May 23, 2012

Egyptian Court Convicts 12 Christians In Sectarian Violence; Acquits Muslims

On Monday, Egypt's State Security Court sentenced 12 Christians to life in prison after they were found guilty of sowing public strife, possessing illegal weapons and killing two Muslims in Minya province last April. Eight Muslims were acquitted of possessing illegal weapons and burning down Christian-owned homes and businesses. AP reports:

The religious tension in Minya spilled over into violence last year when a Muslim microbus driver, angered by a speed bump outside a wealthy Christian man's villa, got into a scuffle with security guards who beat him.

After returning to his village ... that evening, he rounded up the villagers who then gathered outside an ultraconservative Islamist group's main office there to protest his beating.... [T]he Christians nearby thought they were going to be attacked and shot from their rooftops down at the crowd, killing two and wounding two others.

For several days after, angry villagers torched dozens of Christian homes and stores.

The sentences are not appealable, and only the ruling military council can request a retrial.

Jury Holds Baptist Convention Liable For Abuse By Minister It Sponsored

The Orlando Sentinel and Louisville Courier Journal report on a jury's verdict last week in state court in Tavares, Florida, holding the Florida Baptist Convention liable for sexual abuse of a 13-year old boy by a former pastor. Douglas Myers, who is serving a 7-year prison sentence after pleading guilty to molesting the boy in 2005, founded two churches in Lake County, Florida, after receiving funding and training from the Convention. The Convention ran a background check on Myers, but did not call his references or his prior churches where there had been allegations of sexual abuse against him. This is the first time the Convention has been held liable in a case like this. Baptist churches are run independently, but here the Convention was more involved since it sponsored him as a "church planter".

India's Parliament Allows Separate Registration of Sikh Marriages

The Tribune (Chandigarh, India) reports that both houses of India's Parliament this week passed a long-pending amendment to the Anand Karaj Act 1909 that will now allow separate registration of Sikh marriages solemnized under the Anand Karaj ritual. The bill will become law when the President assents to it. The new law however is only a first step toward Sikhs obtaining separate recognition. India's Constitution (Art. 25) still defines Sikhs as Hindus. The new law is not even a full separate Sikh marriage law, since it says nothing about divorce. It merely will permit the central government to direct states to maintain separate marriage registers for Sikhs and designate separate bodies to register Sikh weddings.

Details on Monday's Lawsuits By Catholic Groups Challenging Health Insurance Mandate

Tuesday, May 22, 2012

Article Faults Operation of School-Choice Scholarship Tax Credit Programs

Today's New York Times carries a long front-page story on abuses in school-choice scholarship tax credit programs. The programs generally give individuals or corporations tax credits for their donations to private non-profit scholarship organizations that, in turn, distribute scholarship funds to students in private schools, mostly religiously affiliated ones. Here is an excerpt from the extensive report:

Spreading at a time of deep cutbacks in public schools, the programs are operating in eight states and represent one of the fastest-growing components of the school choice movement. This school year alone, the programs redirected nearly $350 million that would have gone into public budgets to pay for private school scholarships for 129,000 students....

While the scholarship programs have helped many children whose parents would have to scrimp or work several jobs to send them to private schools, the money has also been used to attract star football players, expand the payrolls of the nonprofit scholarship groups and spread the theology of creationism, interviews and documents show. Even some private school parents and administrators have questioned whether the programs are a charade.

Most of the private schools are religious. Nearly a quarter of the participating schools in Georgia require families to make a profession of religious faith, according to their Web sites. Many of those schools adhere to a fundamentalist brand of Christianity. A commonly used sixth-grade science text retells the creation story contained in Genesis, omitting any other explanation. An economics book used in some high schools holds that the Antichrist — a world ruler predicted in the New Testament — will one day control what is bought and sold.

Vatican Says Leaking Of Confidential Letters Was A Criminal Act

Reacting to a recently published book, the Vatican press office last week issued a statement saying: "The latest publication of documents of the Holy See and private documents of the Holy Father can no longer be considered a questionable – and objectively defamatory – journalistic initiative, but clearly assumes the character of a criminal act." According to a report by CNA yesterday, the statement comes in response to the book by Italian journalist Gianluigi Nuzzi, Sua Santita (His Holiness) which sets out a series of leaked letters addressed personally to Pope Benedict XVI. Last month the Pope set up a special commission of 3 cardinals to investigate the source of the leaks.

Group Claims Baptist Church Violated Limits On Non-Profit Political Involvement

According to a press release yesterday from Americans United, the organization has written the Internal Revenue Service (full text of letter) asking it to investigate whether a Kentucky Baptist church has violated the rules that preclude Sec. 501(c)(3) non-profit organizations from becoming involved in political elections by endorsing or opposing candidates. At issue is the sermon delivered by Pastor Ronnie Spriggs of Hager Hill Freewill Baptist Church in Hager Hill, Kentucky in which he took issue with President Obama's backing of same-sex marriage and said:

We need to really be prayerful, and we need to get active. If you’ve ever opened your mouth, you better open it now. Between now and November, God’s people ought to thunder this country. We ought to let this country know that we will not be silent on these issues....

You know why that Obama said he believes that? Because the polls represent more people in the United States believe they ought to marry than others do. So this is an advantageous time. You know what we got to show him? There’s more saved people in the United States then he thinks there are. And if we don’t voice our opinion now, we’ll lose our country….

New Lawsuits Challenge Health Insurance Contraceptive Coverage Mandate

Politico reports that 12 new lawsuits were filed yesterday around the country by some 40 Catholic institutions challenging the Obama administration's mandate requiring contraceptive coverage in health insurance policies these institutions offer to their employees and, in the case of universities, to students. Among the suits-- all coordinated by the Jones Day law firm-- is one filed in federal district court in Indiana by the University of Notre Dame. (Full text of complaint.) Commenting on the lawsuits (full text of statement), Cardinal Timothy M. Dolan, president of the U.S. Conference of Catholic Bishops, said:

We have tried negotiation with the Administration and legislation with the Congress – and we’ll keep at it – but there's still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.....

Monday, May 21, 2012

Move of Prayer To Precede City Council Meeting Draws Protest

Mount Vernon, Ohio's city council has traditionally opened its 7:30 meetings with a prayer. Yesterday's Columbus Dispatch reports that after council received a letter from atheist Ryan Kitko, a graduate student at Ohio State University, asking council to drop the prayer in order to respect the city as a diverse community, council president Bruce Hawkins moved the prayer 2 minutes earlier so it would precede the meeting. However, near the end of the council meeting, 4 council member spoke out against the change, and complaints from members of the public ensued.

Poland's Agriculture Minister Rejects Challenge To Ritual Slaughter

Poland's Agricultural Minister Marek Sawicki said last week that he rejects demands of animal rights activists to end kosher and halal slaughter in Poland. He says that ritual slaughter is permitted under European Union law, and that banning it would be inconsistent with Poland's constitutional protection of religious freedom According to JTA, the minister of agriculture has exempted ritual slaughter from the requirement that animals be stunned before slaughter. Activists have asked the country's prosecutor to determine if this violates Polish law. In connection with the controversy, a Polish newspaper charges that the slaughterhouses where ritual slaughter is performed are owned by a colleague of the Agriculture Minister.

Canon Lawsuit Planned Against Georgetown University Over Deviations From Doctrine

CNA yesterday reported on the petition posted online at the website of the newly formed Father King Society to Make Georgetown Honest, Catholic and Better. Founded by Georgetown alumnus William T. Blatty, author of the best-selling book The Exorcist, the organization is seeking to file a canon law lawsuit seeking a declaration that Georgetown University is no longer entitled to call itself Catholic or Jesuit, or alternatively seeking a Visitation to correct what is described as the University's:

twenty-one year refusal to comply fully with the law of the Church through the implementation of the general norms of Ex corde Ecclesiae and its eleven year non-compliance with certain particular norms adopted for the United States, which has led directly and indirectly to the tolerance and promotion of deviations from authentic doctrinal and moral teachings by Georgetown University authorities and a long series of Scandals to the faithful through actions inconsistent with a Catholic identity.

The organization's website details more specifically Blatty's concerns. The planned canon lawsuit was announced on the same day the HHS Secretary Kathleen Sebelius-- a controversial figure among Catholic institutions-- spoke at an awards ceremony during Georgetown's commencement weekend.

Sunday, May 20, 2012

Recent Prisoner Free Exercise Cases

In Mitchell v. Quarterman, (5th Cir., May 15, 2012), the 5th Circuit rejected an inmate's religious objections to a prison's policy of permitting female guards to monitor male inmates while they shower and use the rest room.

In Miller v. Collier, 2012 U.S. Dist. LEXIS 67562 (D MD, May 15, 2012), a Maryland federal district court rejected a claim by an inmate who had been involuntarily committed to a psychiatric hospital that his free exercise rights were violated by the temporary confiscation of a cross pendant and a metal rope necklace. The cross was later returned to him on a string.

In Taylor v. Hubbard, 2012 U.S. Dist. LEXIS 67853 (ED CA, May 15, 2012), a California federal magistrate judge permitted an inmate to proceed with his free exercise and RLUIPA challenges to prison rules that prevented him from having tobacco to use in his Wheel of Love Ceremony. The rules limited him to purchasing religious products from a single vendor, limited the amount that could be purchased, and prohibited him from having tobacco in his cell or on his person.

In Jackson v. Thomas, 2012 U.S. Dist. LEXIS 67821 (CD CA, May 15, 2012), a California federal district court adopted a magistrate's recommendation to dismiss (2012 U.S. Dist. LEXIS 67838, April 24, 2012), agreeing that an inmate sentenced to a state hospital as a sexually violent predator had not substantiated his allegation that he was denied the right to attend religious services during the period that his access level was reduced.

In Solomon v. Department of Financial Services, 2012 U.S. Dist. LEXIS 67479 (ND FL, May 15, 2012), a Florida federal district court adopted a magistrate's recommendations (2012 U.S. Dist LEXIS 67480, April 9, 2012) and dismissed a suit in which an inmate claimed 8th Amendment and free exercise violations after he developed paranoia about prison food following an incident in which he found meat mixed in with his supposedly vegan food.

In Gillum v. Cate, 2012 U.S. Dist. LEXIS 68661 (ED CA, May 16, 2012), a California federal magistrate judge rejected an inmate's habeas corpus petition in which the inmate claimed that the California Board of Parole Hearings violated the Establishment Clause by denying him parole based on his failure to attend a religious-based Alcoholics Anonymous program. Petitioner had not objected to attending, and he could have attended alternative programs.

In Doss v. Maples, 2012 U.S. Dist. LEXIS 68292 (ED AR, May 16, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 68294, Feb. 29, 2012) and permitted an inmate to proceed with her free exercise and equal protection challenges to the prison mail room's seizing her copy of "Strong's Concordance," which she needs to practice her religious beliefs.

In Mootry v. Flores, 2012 U.S. Dist. LEXIS 68615 (ED CA, May 15, 2012), a California federal magistrate judge recommended permitting a Muslim inmate to proceed with his free exercise claim that Muslim prisoners were denied Jumu'ah services. Dismissal was recommended as to various other claims, including failure to provide a Muslim or inmate chaplain.

In Sweet v. Northern Neck Regional Jail, 2012 U.S. Dist. LEXIS 68513 (ED VA, April 18, 2012), a Virginia federal district court rejected a Muslim inmate's challenge to a jail policy that prohibits Muslims from praying in Arabic when inmates from different housing units and of different security levels are together.

Article Explores Impact of Mormonism On Romney's Political Beliefs

Today's New York Times carries a long front-page article on the importance to presumptive Republican presidential nominee Mitt Romney of his Mormon religious faith. Romney's views in numerous areas are depicted as an application of Mormon religious teachings to the secular realm:

Mr. Romney’s penchant for rules mirrors that of his church, where he once excommunicated adulterers and sometimes discouraged mothers from working outside the home. He may have many reasons for abhorring debt, wanting to limit federal power, promoting self-reliance and stressing the unique destiny of the United States, but those are all traditionally Mormon traits as well.

Outside the spotlight, Mr. Romney can be demonstrative about his faith: belting out hymns... while horseback riding, fasting on designated days and finding a Mormon congregation to slip into on Sundays, no matter where he is....

... [W]holesomeness is deeply authentic to Mr. Romney, whose spiritual life revolves around personal rectitude. In Mormonism, salvation depends in part on constantly making oneself purer and therefore more godlike....

Having a higher purpose is part of what motivates Mr. Romney, many of those close to him say, and gives him the wherewithal to suffer the slings and arrows of political life..... And while voters tend to see Mr. Romney as immensely fortunate, those close to him say that he never forgets he is a member of an oft-derided religious minority.

Muslim Summer Camp Entitled To Tax Exemption

In Camp Retreats Foundation, Inc. v. Township of Marathon, (MI App., May 15, 2012), a Michigan state appellate court reversed the state's Tax Tribunal and found that a Muslim summer camp is entitled to a property tax exemption as a charitable institution. The Tax Tribunal had held that the camp primarily promoted sports and recreation. The court disagreed, finding that the camp qualified under the definition of a charity:

Despite the articles' emphasis on athletic activities for youth, Camp Retreats' central focus is on providing the Islamic community with religious experience in a camp environment..... Contrary to the Tribunal’s reasoning, the presence of fences on the property and signs warning against trespassing bear no relationship to whether Camp Retreats offers its charity generally and without restriction.

Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

Saturday, May 19, 2012

2 New USCIRF Appointments Announced

According to a press release issued on Thursday by the U.S. Commission on International Religious Freedom two new appointments to the 9-member Commission have recently been made. On May 11, President Obama announced his appointment of the Reverend William J. Shaw to his second term on the Commission. On May 15, Speaker of the House John Boehner announced his appointment of lawyer and foreign policy expert Elliott Abrams.