Recent Prisoner Free Exercise Cases

In Nance v. Miser, 2012 U.S. Dist. LEXIS 75307 (D AZ, May 30, 2012), an Arizona federal district court permitted a Muslim inmate to proceed against the prison's deputy director and its chaplain on his free exercise and equal protection challenges to the refusal to provide him with a Halal diet.

In Patterson v. Ryan, 2012 U.S. Dist. LEXIS 75289 (D AZ, May 30, 2012), an Arizona federal district court, in a suit by a Messianic Jew, rejected plaintiff's complaint that his request for kosher meals was fulfilled by serving him vegetarian meals for breakfast and lunch, and kosher meals for dinner. Only Orthodox Jews received 3 kosher meals. Plaintiff failed to show any burden on his religious practice.

In Muhammad v. Martel, 2012 U.S. Dist. LEXIS 76445 (ND CA, June 1, 2012), a California federal district court denied an inmate's habeas corpus petition, holding in part that derogatory references to petitioner's religion by the victim at his trial for stalking, and in the pre-sentence report, did not violate his free exercise rights.

In Erickson v. Lopez, 2012 U.S. Dist. LEXIS 76548 (WD WA, June 1, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 76552, April 27, 2012) and dismissed a Muslim inmate's free exercise claim growing out of the prison's assignment of him to a cell with a Wiccan inmate who assaulted him after authorities refused to transfer him to a different cell. The court held that placing inmates of different religions together does not necessarily substantially burden either's free exercise.

In Foster v. Bhambi, 2012 U.S. Dist. LEXIS 77188 (ED CA, June 4, 2012), a California federal magistrate judge rejected a state prisoner's claim that his free exercise rights were violated when prison officials allowed coronary bypass surgery, which he had previously refused, to be performed on him.

In Glenn v. New Hampshire State Prison Family Connections Center, 2012 U.S. Dist. LEXIS 78689 (D NH, June 4, 2012), a New Hampshire federal magistrate judge permitted a Muslim inmate to proceed with free exercise, RLUIPA, establishment clause and equal protection challenges. He complained that there had been no Muslim Jum'ah services for three years. Authorities said there were no approved volunteers to conduct them; but there were state-paid Christian chaplains.  Plaintiff also complained that he had no Qur'an or other Muslim literature, that the prison had not accommodated his need for a Muslim diet, shaving practices, or prayer requirements and had not provided him with food for a Ramadan feast.

In Jordan v. Fuller, 2012 U.S. Dist. LEXIS 78338 (D CO, June 5, 2012), a Colorado federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 78378, Jan. 17, 2012) and dismissed the claim of an inmate who does not practice any particular religion that his free exercise, equal protection, 8th Amendment and due process rights were infringed when he was not permitted a vegetarian diet.

In Johnson v. Carroll, 2012 U.S. Dist. LEXIS 79380 (ED CA, June 6, 2012), a California federal magistrate judge refused to dismiss a Muslim inmate's free exercise and equal protection claims growing out of the confiscation of his religious diet card when he was transferred to a different prison.

Muslim Can Move Ahead With Challenge To Ban On Kufi In Juvenile Court

In Al-Qadir v. Wackenhut Corp., 2012 U.S. Dist. LEXIS 75304 (MD TN, May 31, 2012), a Tennessee federal magistrate judge recommended against dismissing a free exercise claim by a Muslim who contended that a Wackenhut security guard denied him entry to, and subsequently removed him from, the Juvenile Court building in Nashville, Tennessee because he was wearing a Kufi. Plaintiff agreed to remove the kufi to be searched, but insisted on then wearing it again. Apparently the publicity caused by the filing of this case has caused the Juvenile Court to modify its policy for the future.

Religious Beards Continue To Violate Military and Police Grooming Standards

The clash between beards grown for religious purposes and grooming standards continues to make the news.  McClatchy Newspapers reported Friday that at Texas' Fort Hood, a military judge delayed the pre-trial hearing for accused mass killer Maj. Nidal Hasan because Hasan appeared in court with a full beard, grown for religious reasons. The beard violates the Army's grooming regulations, and Col. Gregory Gross said it was a disruption to court proceedings.  When the hearing resumes, possibly this week, Hasan will be required to watch it on closed-circuit television outside the courtroom if he does not comply with an order to "appear with proper military grooming standards."

Meanwhile, in New York City, a Hasidic Jewish Police Academy recruit was dismissed last Friday  for refusing to keep his beard, grown for religious purposes, trimmed to the 1 millimeter length permitted by police grooming rules. Fishel Litzman was only a month away from graduation, according to AP and the New York Daily News. [Thanks to Rabbi Michael Simon for this lead.]

Denmark Approves Full Wedding Ceremonies For Same-Sex Couples

AP and RT report that on Thursday, Denmark's parliament, by a vote of 85-24, approved a change to the country's marriage law that permits same-sex couples to be married in formal church weddings by the Church of Denmark. According to the Copenhagen Post, bishops will quickly develop a separate ceremony for such marriages. The change becomes effective June 15.  Previously, under a 1997 law, the state's Lutheran Church could only marry same-sex couples in a special short blessing ceremony at the end of a regular church service. Under the new law, any minister can refuse to conduct a same-sex ceremony, but the local bishop is then required to arrange for a replacement to do so. Also the new legislation automatically recognizes the 4,100 couples in registered civil partnerships as married.

State Department's New Format For Human Rights Report Triggers Partisan Debate On Religious Liberty

On May 24, the State Department released the 2011 Country Reports on Human Rights Practices in a new streamlined format that includes a country-specific executive summary and examples of the significant human rights problems reported in each country.  The report can be accessed for each country, or a customized report across any number of countries by human rights topic can be created online. A report by CNS News this week illustrates, however, that the new format has become part of the partisan battle over the Obama administration's commitment to religious liberty. In the new format, for each country under the section on "Respect for Civil Liberties," the subtopic of "Freedom of Religion" reads:  See the Department of State’s International Religious Freedom Report at http://www.state.gov/j/drl/irf/rpt/"  According to CNS, some are claiming that this move is part of an effort by the Obama administration to downplay international religious freedom, and particularly to hide violence directed at Christians and other minorities in Muslim nations in Africa and the Middle East since the Arab Spring uprisings of 2011.  The cross-referenced State Department religious freedom report only covers the period through December 2010.

Vouchers Are Benefiting Catholic Schools

In a long front-page article in today's weekend edition, the Wall Street Journal reports that Catholic parochial schools are making a come back, and "are benefiting disproportionately from the rise of vouchers, available in 10 states and Washington, D.C.," as well as from and tax credit programs. According to the report, vouchers benefit Catholic schools more that higher-priced private schools because Catholic schools are often in urban areas, they have space, and they have an established history in the community. When Indiana began a voucher program last year, over 2,400 students transferred from public to Catholic schools, and another 1,500 moved to other religious or private schools.

House Hearing Held On Bill Clarifying VA's Role In Veterans' Funeral Ceremonies

On June 6, a subcommittee of the House Committee on Veterans' Affairs held hearings on a series of bills, one of which was HR 2720 (full text) which is designed to clarify the VA's role in military funerals.  Witnesses on Panel 3 and the submission of Rep. Poe at the hearing focus on this bill, which was prompted by a dispute last year over rules at the National Cemetery in Houston, including allegations that the Department of Veterans Affairs restricted religious content at ceremonies. (See prior posting.) The government claimed that the VA was merely attempting to honor the wishes of families. (See prior posting.) The bill would require the VA to make certain that a chapel displaying religious symbols chosen by the family is available at national cemeteries, and that access to the cemetery is provided to honor guards when requested by the family.  It also provides:

The Congress reaffirms the inviolable individual zone of privacy that each American possesses, including the deeply private act of choosing the content and creed of an individual's funeral, memorial service, or ceremony... [N]o official of the Federal Government, including the Secretary of Veterans Affairs, may interfere with the content and creed of the funeral, memorial service, or ceremony of a deceased individual, as expressed by the last will and testament of the individual or as determined by the family or agent of the individual....

The Washington Post reports on some of the questions raised by lawmakers during the hearing. [Thanks to Don Byrd for the lead.] 

Lawsuit Against USCIRF Claims Anti-Muslim Bias

On Thursday, a lawsuit was filed in federal district court in Washington, DC against the U.S. Commission on International Religious Freedom by a lawyer and expert on South Asian affairs, Safiya Ghori-Ahmad, who alleges that a permanent job offer with the Commission that she accepted was withdrawn because of anti-Muslim bias of two of the USCIRF commissioners. The complaint (full text) in Ghori-Ahmad v. United States Commission on International Religious Freedom, (D DC, filed 6/7/2012), recounts that plaintiff, formerly employed by the Muslim Public Affairs Council, was hired as an analyst by USCIRF’s executive director after staff interviews and review of her qualifications. However, after she left her prior job and before she began with USCIRF, the Commission, particularly at the urging of then-Commissioner Nina Shea, reneged on its hiring decision and instead offered her only a temporary 90-day position. According to the complaint:

Internal USCIRF email and discussions make clear that Ms. Ghori-Ahmad’s national origin and religion drove USCIRF’s ultimate decision to rescind its job offer. For example, Commissioner Shea, a particularly influential voice with long tenure on the Commission, wrote that hiring a Muslim like Ms. Ghori-Ahmad to analyze religious freedom in Pakistan would be like “hiring an IRA activist to research the UK twenty years ago.”

USCIRF allegedly retaliated further against Ghori-Ahmad when she filed a complaint about her treatment with the EEOC. The lawsuit claims that USCIRF's discrimination against plaintiff violates the Congressional Accountablity Act which was made applicable to USCIRF by the legislation passed last year that reauthorized the Commission.The Washington Post, reporting on the lawsuit, adds:

The allegations in the suit are the most explicit in a years-long series of allegations that commission leaders are biased against Muslims, specifically people associated with groups critical of U.S. foreign policy and who work for groups that fight anti-Muslim discrimination.

[Thanks to all who sent me leads on this.]

Kuwait's Emir Vetoes Increased Blasphemy Penalties, But Override Possible

RTT News reports that on Wednesday, Kuwait's Emir, Sabah Al-Ahmad Al-Jaber Al-Sabah, rejected legislation that had been passed by the National Assembly (Parliament) last month increasing the penalties for blasphemy. The Emir sent the bill back for reconsideration. Upon reconsideration, a 2/3 vote by the National Assembly requires the Emir to promulgate the law (Kuwait Constitution Art. 66) -- a result that seem likely since the bill originally passed by a vote of 40-6. (See prior posting.) The law would amend Article 111 of the Kuwait Penal Code to provide that any Muslim who mocks God, his prophets, messengers, Prophet Mohammad’s wives or the Qur'an may be subject to the death penalty or life in prison unless the defendant repents. If he does, then the judge is to instead impose a sentence of at least 5 years in prison and a fine equivalent to $36,000 (US). Lower penalties are provided for non-Muslim offenders. (See prior posting.) Currently, Section 111 provides only a one-year penalty for defamation of religion. (Background.)

9th Circuit Affirms Dismissal of Establishment Clause Challenge To Waldorf Schools

In a 3-page opinion in PLANS, Inc. v. Sacramento City Unified School District, (9th Cir., June 7, 2012), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's dismissal of an Establishment Clause challenge to two Northern California school districts that have created "Waldorf" schools. These schools use a holistic teaching method based on the educational philosophy of Rudolf Steiner, creator of the spiritually-based philosophy known as Anthroposophy. (See prior posting.) The 9th Circuit held that:

PLANS failed to meet its burden of showing that anthroposophy is a religion for purposes of the Establishment Clause. Although we express no view as to whether anthroposophy could be considered a religion on the basis of a fuller or more complete record, the record as it is before us is simply too thin to sustain that conclusion.

The court also held that PLANS had waived any argument that it could prevail on its Establishment Clause claim even without a determination that anthroposophy is a religion. The case has been winding its way through the courts since 1998.

USCIRF Elects Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom announced yesterday that Dr. Katrina Lantos Swett has been elected Chair of USCIRF.  Rev. William J. Shaw and Mary Ann Glendon were elected Vice-Chairs. Section 201(d) of the International Religious Freedom Act mandates election of a chair by a majority of the USCIRF members present and voting at the first meeting after May 30 each year.

CDC Issues Report On Risky Ultra-Orthodox Jewish Circumcision Procedure

Time Magazine reports that the U.S. Centers for Disease Control and Prevention (CDC) released a report yesterday on Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction — New York City, 2000–2011. The report finds that during the 12 year period covered 11 newborn males contracted HSV infection from the ultra-Orthodox Jewish practice of  metzitzah b'peh in which the mohel places his mouth directly on the newly circumcised penis and sucks blood away from the circumcision wound. This circumcision method increases the risk for neonatal herpes 3.4 times that of male infants who have not had direct orogenital suction. On Wednesday, the New York City Health Department issued a statement (full text) strongly advising against the practice of metzitzah b’peh.  It also announced that 9 New York hospitals have agreed to distribute a Health Department pamphlet, Before the Bris: How to Protect Your Baby Against Infection, to parents considering out-of-hospital circumcision of their newborn boys. The New York Health Department's warnings echo those it issued as early as 2005. (See prior posting.) [Thanks to Vos iz Neias? for the lead.]

Egypt's Constitution Drafting Panel To Be Split Between Islamists and Non-Islamists

In Egypt, the Supreme Council of the Armed Forces has invited both chambers of parliament to meet next Tuesday to select the 100 members of the panel that is to draft the country's new constitution.  According to the Financial Times, this move came after agreement was reached on Thursday between the army and representatives of Islamist, liberal and leftwing parties in parliament on the makeup of the new drafting commission. Its membership will be split evenly between Islamists and non-Islamists, and will include members of parliament, judges, young people, women, public figures, Muslim clerics and church representatives.

Sikh Employee Wins Settlement With TSA

The Washington Post reported Wednesday that a Sikh man has won a $30,000 settlement in an employment discrimination claim against the Transportation Security Administration.  Kulwinder Singh, a TSA employee at New York's Kennedy Airport, was told by his TSA supervisor that he had to hide his kara (religious wristband) under a long sleeve shirt, or not wear it at all. In a decision last March, the EEOC ruled that the TSA needed to permit employees to wear the kara freely. Singh's attorney says that hiding the kara from sight defeats its purpose of reminding its wearer to act righteously and protect others.

Note to Readers: Comment Feature To Be Reactivated On Religion Clause Blog

A Note to Religion Clause Readers--

Beginning today, I am experimenting again with activating the Comment feature on Religion Clause blog.  Readers, after registering, will be able to post Comments relating to this and future items.  I deactivated the Comment feature in February 2010 after the Comment forum stopped serving a useful purpose. You can see my concerns that led to the decision at that time here.  Some readers were using it more to proselytize than to comment on the postings, and the number of readers submitting posts was small. I hope that its use will prove more effective this time.  However if it does not, I will again deactivate it.

Comments will not be moderated before they appear.  I do not have the time necessary to carry out that labor intensive function.  However, I reserve the right to remove any Comment that I find inappropriate for any reason.  Needless to say, though, my failure to remove a comment in no way indicates that I endorse it or find it appropriate.  Religion Clause has a knowledgeable and articulate readership. I hope the Comments will reflect this, and will respect the overall tone and goal of the blog. I also reserve the right to remove excessive numbers of postings by any individual reader, even if their content is appropriate.

The Comments will be accessible in a pop-up window so that they will not distract readers who are interested only in the main postings. I welcome Comments suggesting anything else that would make the Comment forum of more interest to you.  As always, feel free to contact me by e-mail where that is more appropriate. Thanks again to all the loyal Religion Clause readers.  I hope you find this step an improvement in the blog.

Best wishes,
Howard Friedman

Another Court Says DOMA Is Unconstitutional

Another court has held that the Defense of Marriage Act is unconstitutional.  In Windsor v. United States, (SD NY,June 6, 2012), a New York federal district court awarded plaintiff Edith Windsor damages equal to the $353,000 in estate taxes paid to the federal government on her same-sex spouse's estate. Edith and her long-time partner Thea Spyer, who were New York residents, were married legally in Canada in 2007. Spyer by will left her estate for the benefit of Windsor, but because of DOMA Spyer did not qualify for the unlimited estate tax marital deduction. Without invoking strict scrutiny, the court held that Section 3 of DOMA violates the equal protection component of the 5th Amendment because the government's asserted interests are inadequate to support the law. Jurist reports that this is the fourth federal court decision invalidating DOMA. (See prior related posting.)

Former Cadet May Challenge Required Prayer At Honor Code Hearing

In Spadone v. McHugh, (D DC, June 6, 2012), the U.S. District Court for the District of Columbia held that former West Point cadet Alan Spandone has standing to claim that the Establishment Clause was violated when, at a hearing on his alleged Honor Code violations, he was ordered by the Commandant of Cadets to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer."  The hearing involved charges of plagiarism, and the Commandant thought that Spandone had not shown contrition or accepted responsibility for his conduct. The Army argued to the court that reinstating Spandone would not cure the Establishment Clause violation.  The court held, however, that the likely remedy would be an injunction banning forced religious prayer. The court however rejected due process and other challenges by Spandone to his removal from West Point.

9th Circuit Upholds Hawaii Licensing Requirement For Commercial Beach Weddings

In Kaahumanu v. State of Hawaii, (9th Cir., June 6, 2012), the U.S. 9th Circuit Court of Appeal for the most part upheld against 1st and 14th Amendment challenges Hawaii's regulation and associated guidelines that require permits for "commercial weddings" on public beaches.  The permit requirement applies to any wedding involving receipt of compensation for goods or services, other than service of a photographer, even if the only compensation is that paid to a member of the clergy for performing the ceremony. The court held that the state regulation "is is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits." The court however struck down a provision in the regulation giving the Department of Land and Natural Resources authority to revoke or add terms and conditions to an already issued permit for any reason.  The court rejected a contention by plaintiffs that the regulation's prohibition on placing various types of wedding accessories on the beach creates a preference for nonliturgical religions and targets members of the Catholic, Orthodox or Jewish faiths. The court interpreted the regulation as permitting hand-held accessories including religious objects such as hand-held chuppas, chalices, and small, handheld kahilis.

Suit Challenges NYPD Surveillance of Muslim Communities

Yesterday, a group of Muslim organizations, Muslim-owned businesses and individuals filed suit in federal district court in New Jersey to challenge the New York Police Department's program of secretly infiltrating and monitoring Muslim religious institutions, schools, businesses, associations, and congregations around New York City. The complaint (full text) in Hassan v. City of New York, (D NJ, filed 6/6/2012), charges that the NYPD program impermissibly discriminates against plaintiffs because of their religion and intentionally denigrates Islam:

The NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.

The lawsuit seeks a declaratory judgment, an injunction against continuation of the program and asks that all records of plaintiffs made through unlawful spying be expunged. It also asks for nominal damages and attorneys' fees. Muslim Advocates issued a press release announcing the filing of the lawsuit.  The Wall Street Journal reports on the lawsuit.

UPDATE: An amended complaint was filed on Oct. 3, 2012. Center for Constitutional Rights has links to subsequent pleadings in the case.

Suit Claims Anti-Gay Discrimination By Doctor On Religious Grounds

In New Jersey, an HIV-positive gay man has filed suit against a hospital under the state's Law Against Discrimination charging that his treatment was delayed and he suffered embarrassment and humiliation as a result of discrimination against him on the basis of his sexual orientation and/or his HIV-positive status. The state-court complaint (full text) in Simoes v. Trinitas Regional Medical Center, (NJ Super., filed 5/23/2012) alleges that shortly after plaintiff was admitted to the hospital's mental health wing, he was approached by Dr. Susan Borga, who walked out on him after she learned that he contracted HIV from unprotected sex with men. The complaint alleges the Dr. Borga hung up the phone on plaintiff's HIV doctor, telling him: "This is what he gets for going against God's will."  The complaint faults the hospital for failing to promulgate or enforce an anti-discrimination policy. Courthouse News Service reports on the case. [Thanks to Scott Mange for the lead.]