German Political Leaders Say Religious Circumcision Should Be Protected

According to AP, Germany's foreign minister Guido Westerwelle moved today to reassure critics after a controversial German court ruling last week held that young boys' rights were infringed when parents decided to have them circumcised for religious reasons. Westerwelle said:

The free exercise of religion is protected in Germany. That includes religious traditions. All our partners in the world should know that.

Volker Beck, an opposition Green Party senior lawmaker, said that it should be clarified that circumcision on religious grounds is justified as long as hygienic and medical standards are met. However he left open the question of whether this clarification should be obtained through the courts or by legislation.

Meanwhile YNet News reports that Jewish Hospital in Berlin has decided to suspend all circumcisions of children for religious reasons until the legal situation is clarified.

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Recent Prisoner Free Exercise Cases

In Walker v. Cate, 2012 U.S. Dist. LEXIS 86987 (ED CA, June 21, 2012), a California federal magistrate judge recommended dismissing claims by a white Christian/Odinist inmate that his rights under the free exercise clause and RLUIPA were violated when he was classified as eligible for double celling with inmates of other races. Plaintiff claimed that his religious beliefs forbid him from sharing a cell with someone of another race.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 87620 (SD NY, June 20, 2012), a New York federal district court permitted an inmate who was a practitioner of Santeria to move forward on free exercise, RLUIPA and equal protection claims. Plaintiff alleged that he was not allowed to wear Santeria beads.

In Davis v. Armenta, 2012 U.S. Dist. LEXIS 88381 (ED CA, June 25, 2012), a California federal magistrate judge dismissed as frivolous an inmate's claim for $999 trillion in damages after the sheriff tore down a picture of a Thompson sub-machine that hung on plaintiff's bunk bed. Plaintiff claimed that the image of the sub-machine gun was his god/goddess.

In La Vell Harris v. Lake County Jail, 2012 U.S. Dist. LEXIS 89306 (ND CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's free exercise claim against a jail nurse. Plaintiff claimed his religion prevents him from taking pain medication (other than marijuana), that he cannot stand or walk without pain, and that he was denied a wheel chair. His claim of religious and racial discrimination was dismissed with prejudice.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 89813 (D CO, June 28, 2012), a Colorado federal magistrate judge, while dismissing many of plaintiff inmate's claims, permitted plaintiff to move ahead on a free exercise and RLUIPA complaint that he was required to surrender various art works, including religious art, and was terminated from the sex offender treatment program for refusing to write essays on how images of minors were high risk and how he used "religiosity" as a tactic to avoid treatment.

In Villanueva v. River, 2012 U.S. Dist. LEXIS 89399 (D SC, June 28, 2012), a South Carolina federal district court held that an inmate's free exercise claims are not cognizable in a habeas corpus proceeding. Plaintiff complained that federal prison officials refused to accommodate his "Kingism" religious beliefs by not allowing him to wear his religion's colors. He sought prison recognition of his religion.

In Quinn v. Knab, 2012 U.S. Dist. LEXIS 89479 (SD OH, June 27, 2012), an Ohio federal magistrate judge recommended that an inmate, a white separatist "Christian Identity" adherent, be allowed to proceed with his free exercise and RLUIPA challenges to prison officials' refusal to permit him to take the Nazarite vow which entails restrictions on cutting hair, foods consumed, and working on the Sabbath. The court rejected plaintiff's equal protection and retaliation claims.

In Sousa v. Wegman, 2012 U.S. Dist. LEXIS 90023 (ED CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that prison officials refused to accommodate his Mexican Indian (Aztec/Mayan/Toltec) religion and instead required him to use an existing Native American religious services program.

In Crosby v. Lee, 2012 U.S. Dist. LEXIS 90090 (WD VA, June 28. 2012), a Virginia federal district court dismissed without prejudice a Muslim inmate's suit against a jail superintendent complaining that he was deprived of the opportunity to attend Friday Jumm'ah services, he was denied his prayer rug, and he was not alerted when meals contained pork.

In Johns v. Lemmon, 2012 U.S. Dist. LEXIS 89901 (ND IN, June 26, 2012), an Indiana federal district court permitted plaintiff, who claimed to be an "observant Jewish prisoner," to proceed with his suit alleging that a fundamental tenet of his religious beliefs is that he cannot eat food cooked on Saturday, and that prison officials have stopped their previous practice of providing him his food for Saturday on Friday night.

Church Autonomy Doctrine Does Not Bar Defamation and Breach of Fiduciary Duty Claims

In Bilbrey v. Myers, (FL App., June 29, 2012), a Florida state appellate court reversed a trial court's reliance on the church autonomy doctrine and permitted a former church member, Darrel Bilbrey, to proceed with his defamation and breach of fiduciary duty claims against the church's pastor David Myers. Originally Myers sponsored Bilbrey to obtain a license to minister in the Pentecostal church.  Subsequently Myers came to believe that Bilbrey was gay and claimed that  Bilbrey's upcoming marriage was a sham to hide his homosexuality. Myers made these charges of homosexuality during a meeting with Bilbrey and three others; in a sermon; and to Bilbrey's pastor in Michigan after Bilbrey moved and sought to have his ministerial license transferred there.  The court held:

The First Amendment does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine.... 

As to Bilbrey's claim for breach of fiduciary duty—based on allegations that Myers had a fiduciary duty to Bilbrey because of the pastor/church member relationship and the internet filtration and accountability program [in which Myers was Bilbrey's "accountability partner"]—the First Amendment does not necessarily bar such claims.

Plaintiff's intentional infliction of emotional distress and invasion of privacy claims were dismissed.

Michigan Outlaws Disrupting Religious Services

As reported by WLNS News, last Monday (legislative history) Michigan Governor Rick Snyder signed HB 5560 (full text) making it a misdemeanor to enter or remain on property, or obstruct entry or exit to property, with the intent of disrupting individuals meeting there in the pursuit of their free exercise of religion. First offenders may be sentenced to up to 93 days in jail, $1000 fine or 100 hours of community service.

District Court's Permanent Injunction Lets Churches Rent New York School Building Space On Weekends

In Bronx Household of Faith v. Board of Education of the City of New York, (SD NY, June 29, 2012), a New York federal district court issued a permanent injunction barring the New York City board of education from enforcing a rule that keeps churches from renting out space in school buildings for their weekly services. While generally allowing community groups to rent out space outside normal school hours for meetings and activities, Chancellor’s Regulation D-180 precludes rental by churches that wish to use the space for worship services or wish to use the school space as a house of worship. Earlier this year, the court granted a preliminary injunction in the 17-year long dispute over the regulation. (See prior posting.) In granting the permanent injunction the court held that the Regulation violates plaintiff’s free exercise rights, saying that the rule imposes “a substantial burden on Plaintiffs’ free exercise rights,” while the school board raises only “a misperceived Establishment Clause concern.”.

The court found, further, that as administered Regulation D-180 violates the Establishment Clause by involving Board of Education officials in determining whether or not a group’s proposed activities amount to religious worship or use of the school building as a house of worship. This type of Board review requires state officials to inquire into religious doctrine. Alliance Defense Fund issued a press release announcing the court’s decision. The New York Times yesterday reported on the decision. Bloomberg News reports that the city plans an immediate appeal.

Supreme Court Denies Cert. In Free Exercise Challenge To Affordable Care Act

After yesterday's historic decisions, the U.S. Supreme Court today denied certiorari (Order List) in other cases involving challenges to the Patient Protection and Affordable Health Care Act. The petition for certiorari (full text) in at least one of those cases, Docket No. 11-679, Seven-Sky v. Holder, had raised a free exercise challenge to the ACA. In the case, the D.C. Circuit Court of Appeals had given short shrift to challengers' Religious Freedom Restoration Act argument, holding that appellants had "failed to allege facts showing that the mandate will substantially burden their religious exercise." (See prior posting.) For a lengthier discussion of free exercise challenges to the individual mandate, see my posting from yesterday.

Religious Interrogatories Quashed On Privacy and Free Exercise Grounds

In Guthrey v. California Department of Corrections & Rehabilitation, 2012 U.S. Dist. LEXIS 89174 (ED CA, June 27, 2012), a California federal magistrate judge sustained objections by defendants in a religious discrimination lawsuit to interrogatories put forward by plaintiff Raymond Guthrey regarding the individual defendant's religious beliefs.  Guthrey, an adherent of the Ananda Marga faith, was prevented by Department of Corrections employee Michael Pate, Jr. from participating in the Department of Corrections Retired Annuitant Program. Guthrey, who had been approved as a Correctional Counselor in that program, contended that Pate's actions were motivated, at least in part, by his dislike of Guthrey's religion.  Seven of plaintiff's interrogatories asked about Pate's religious beliefs and attendance at religious services. Plaintiff claimed that answers would lead to information regarding defendant's likely level of religious and racial intolerance. The court disagreed, holding that the interrogatories are irrelevant, and that even if they are not, defendant's right to privacy and the 1st Amendment protection of his religious associations allow him to refuse to answer. The court said in part:

[I]f this Court were to become a "sword" of Title VII plaintiffs used to gain access to unfettered inquisitions into an individual's most private and intimate religious views, a "chilling" impact on religious associational rights would result. Plaintiff asks this Court to compel disclosure so that the information may be used to attain monetary damages for such religious beliefs. Such circumstances would substantially burden both the individual's and the group's ability and inclination to freely pursue their religious beliefs and practices.

The court did allow Guthrey to pursue interrogatories regarding any past religious discrimination complaints against defendants, but allowed defendants to omit the names of the complainants in order to protect their privacy.

3rd Circuit: Ousted Church Member May Not Sue On Behalf of Church

In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., (3d Cir., June 28, 2012), the U.S. 3rd Circuit Court of Appeals held that plaintiff, a member of a dissident faction in a Church, lost standing to continue a lawsuit charging Church leaders with misappropriation of assets once plaintiff's Church membership had been terminated by the Church's religious leader. Joseph Askew filed suit against Bishop Kenneth Shelton in January 2009. In August 2009, Shelton executed a sworn declaration stating that Askew and other dissidents had not been recognized as Church members since 1992 when the split occurred. The court held that Bishop Shelton's authority to excommunicate members "falls squarely within the realm of matters insulated from civil court review." The court added that "consistent with the nonentanglement principle,we accept [Shelton's] pronouncement as conclusive. Any other approach would embroil this Court in a two-decade-long intra-Church battle central to its mission and spiritual identity." The court went on to hold that once Askew had lost his Church membership, he no longer had standing to assert claims alleging harm to the Church. The court added:

A doctrinally grounded decision made during litigation to insulate questionable church actions from civil court review may indeed raise an inference of fraud or bad faith.... Under those circumstances, the integrity of the judicial system may outweigh First Amendment concerns such that a civil court may inquire into the decision.  But we find no basis for the inference here.

The Philadelphia Inquirer reports on the decision.

Diocese and Bishop Sued Over Sexual Abuse of Woman In Deliverance and Exorcism Sessions

In Arlington, Virginia last week, a woman filed suit in state court against the Catholic Diocese of Arlington, the bishop responsible for the diocese, and two pro-life organizations, seeking to hold them liable for injuries plaintiff suffered when she was sexually abused by a priest in the course of Spiritual Deliverance and the rite of exorcism. The suit seeks $5.35 million in damages. The complaint (full text) in Doe v. Catholic Diocese of Arlington, (VA Cir. Ct., filed 6/19/2012), alleges that plaintiff signed an "Agreement for spiritual help" with a priest, Thomas Enteneuer, under which he was to apply the spiritual resources of the Church to liberate plaintiff from a demonic infestation of unclean spirits. As Enteneur's sessions with plaintiff progressed over a two year period, he touched and kissed her sexually, telling her that he was blowing the Holy Spirit into her. He also digitally penetrated here. Enteneur eventually paid for moving plaintiff closer to him, and hired her through pro-life organizations he headed. The suit claims that the Diocese and related defendants should be held liable for Enteneur's actions.  Plaintiff alleged claims for assault, battery, intentional and negligent infliction of emotional distress, negligent entrustment and negligent retention. Courthouse News Service and the Huffington Post report on the lawsuit. According to the Palm Beach Post, other women have made similar charges against Eneneur, who has been recalled by his Palm Beach Diocese.

4th Circuit Upholds Released Time Program of South Carolina School District

In Moss v. Spartanburg County School District Seven, (4th Cir., June 28, 2012), the U.S. 4th Circuit Court of Appeals upheld Spartanburg's released time program that permits high school students to receive two academic credits for off-campus religious instruction offered by a private Bible school. Grades are funneled through an accredited private Christian school that reviews and monitors the program, and the grades are then transferred to the student's public school transcript. The program is authorized by the state's Released Time Credit Act. (See prior posting.) Approximately 20 out of the school's 1500 students take the religion course each year. Finding that only some of the plaintiffs had standing to challenge the program, the court went on to conclude that under Supreme Court and 4th Circuit precedent, the Spartanburg program does not violate the Establishment Clause:

Here, the School District’s released time policy takes place off campus and expressly prohibits any use of public staff or funds for its execution.... The fact that a public school accepts credits for released time courses does not alter the analysis under any one of Lemon’s three prongs in view of the neutral administrative manner adopted by the School District for accepting those credits. The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools.

[Thanks to  Stephen Ruckman and Derek Gaubatz for the lead.]

The Free Exercise Issues As To the Individual Mandate That Were Not Decided By SCOTUS Today

As has been widely reported, today in National Federation of Independent Business v. Sebelius, (Sup. Ct., June 28, 2012), the U.S. Supreme Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act (often referred to by its detractors as "Obamacare").  However the Court's opinions did not deal with narrower conscience challenges to the individual mandate.  These have generally been rejected by lower courts. The Affordable Care Act (26 USC 5000A(d)(2)) has two explicit, but narrow conscience exemptions from the mandate to buy health insurance:

(1) members of religious sects, such as the Amish, who are exempt from Social Security taxes under exiting law. These are described in Sec. 1402(g) of the Internal Revenue Code:

a member of a recognized religious sect ... [who] is an adherent of established tenets or teachings of such sect ... by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care...

(2) members of health care sharing ministries.

Some lawsuits have unsuccessfully claimed that these exemptions violate the Establishment Clause by privileging some religious sects over others.

Beyond this, individuals who do not fit into either of these two specific groups of statutory exemptions have brought claims that their free exercise rights are violated by the individual mandate.  One type of claim is that rejected by the D.C. Circuit in Seven Sky v. Holder (see prior posting), where plaintiff alleged (see prior posting) that she:

has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

A second type of conscience objection-- also rejected by lower courts-- has been raised by those who claim that payments required under the Act will somehow be used for abortion services. An elaborate compromise adopted as part of the Act was designed to prevent this (see prior posting), and decisions such as the district court's in Liberty University Inc. v. Geithner  have held that "the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  A similar result was reached by at least one Circuit Court judge. (See prior posting.)"  The only mention of religious exemptions in today's opinions came in Justice Scalia's dissent as part of his argument that the individual mandate is not an exercise of Congress' taxing power. He said:

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,§5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: [e.g.] Those who cannot afford coverage.... If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.

Sheriff Can Be Sued By Rape Victim Denied Anti-Conception Pill By Religious Jail Guard

In R.W. v. Spinelli, (MD FL, June 14, 2012), a Florida federal district court denied a sheriff's motion to dismiss an official capacity suit against him under 42 USC Sec. 1983 by a woman alleging privacy and equal protection violations.  Plaintiff, R.W., was a rape victim and was prescribed two anti-conception pills at a rape crisis center. She took one there and was instructed to take the other 12 hours later.  Shortly thereafter, while investigating the rape, a police officer discovered that R.W. had an outstanding arrest warrant against her and took her to jail.  Her remaining pill was taken from her, and the only employee on duty with authority to do so refused to give it to her to take because doing so would violate the employee's religious beliefs. R.W. was allowed to take the pill the next morning just prior to her release. In an earlier decision (see prior posting), the court permitted R.W. to move ahead with her suit against the jail employee, but dismissed the claims against the sheriff in his official capacity.  Plaintiff then filed an amended complaint against the sheriff, who again sought dismissal. In moving to dismiss, the sheriff argued that the complaint did not allege that an unconstitutional official policy or custom of the county was involved. The court this time, however, disagreed, saying: "the single action of a final policy-maker can represent official government policy, even when the action is not meant to control later decisions...."  Since the sheriff had not promulgated any policy on refusing to dispense anti-conception medication, the jail employee essentially became the final policy maker on this issue. Courthouse News Service reports on the decision.

4th Circuit: Required Posting By Pregnancy Centers Is Unconstitutional Compelled Speech

In a 2-1 decision in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, (4th Cir., June 27, 2012), the U.S. 4th Circuit Court of Appeals yesterday struck down a Baltimore ordinance that requires "limited-service pregnancy centers" to post signs announcing that that they do not provide or make referrals for abortion or birth control services. The majority agreed with plaintiff, a Catholic  pregnancy center, that the law compels it to speak to clients and potential clients in a manner that it would not otherwise do. The majority found that the city has not shown a compelling interest for infringing on the Center's non-commercial speech rights in this manner. The majority explained:

Here, the record establishes, at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the Pregnancy Center itself. Indeed, the record contains no evidence that any woman has been misled into believing that any pregnancy center subject to Ordinance 09-252 was a medical clinic or that a woman in Baltimore delayed seeking medical services because of such a misconception. The City instead cites allegations of deceptive practices occurring in other locations or second-hand reports of "stories about harassment."

Judge King dissenting called the majority's conclusion "indefensible." He argued:

Rushing to summary judgment, the court subverted the Federal Rules of Civil Procedure ... by ... denying the City essential discovery, refusing to view in the City’s favor what evidence there is, and making untoward findings of fact, often premised on nothing more than the court’s own supposition.

Defending the city, the dissent said:

The evidence relied on by the City Council revealed that limited-service pregnancy centers were using questionable tactics to delay women from accessing abortions. Such tactics included counseling women to undergo pregnancy tests and sonograms that were scheduled weeks after their initial pregnancy center visit, and misinforming women about abortion services, including when abortions could be lawfully obtained. Such delays placed the health of women who decided to have abortions at risk....

Newsmax reports on the decision. 

Islamist Invasion of Art Show In Tunisia Raises Fears Among Secular Intellectuals

Reuters yesterday reported from Tunisia on the impact of a June 10 incident in which Islamists broke into the Printemps des Arts fair being held at Abdeliya Palace in Tunis and destroyed a few pieces of artwork to protest art they deemed insulting to Islam. This was followed by days of Islamist riots that killed one person. Among the most controversial art on display was one depicting veiled women as punching bags and another showing veiled women in a pile of stones (commenting on stoning of adultresses). The piece causing the most anger was one that spelled out "Sobhan Allah" (Glory to God) in ants. Reuters comments that this is the latest incident to raise fears among secular intellectuals that the freedoms won in the Arab Spring revolution are being slowly contracted by the religious views of zealots.  Meriem Bouderbala, one of the curators at Printemps des Arts, said: 

After the revolution, artists had a feeling of freedom. They wanted to express freely. They produced very powerful art. The artists were not expecting this reaction. That is why they feel so fragile. They turned to the government but it is not supporting them so they feel they have hit a wall.

Church's "As Applied" Zoning Challenge Dismissed For Lack of Ripeness

Woodridge Church v. City of Medina, 2012 U.S. Dist. LEXIS 87687 (D MN, June 25, 2012) is a challenge under RLUIPA, the 1st and 14th Amendments and the Minnesota constitution to Medina, Minnesota's refusal to approve a church's expansion plans.  The city's refusal was followed by a moratorium on church construction and then the creation of a new zoning district that includes the church. The church withdrew its application for a conditional use permit and filed suit when city council implemented a square footage requirement below that of the church's planned expansion. The court dismissed for lack of ripeness the church's "as applied" challenges to the city's zoning decisions since the church has not obtained a final ruling from the city on its plans. However the court permitted the church to proceed with its facial challenges to the city's zoning decisions and its damage claims growing out of the zoning moratorium.

Hungarian Reform Jewish Congregations Challenge Non-Recognition In European Court

Jewish Journal reported from Hungary that the European Union for Progressive Judaism and Hungary’s two Reform Jewish congregations on Tuesday submitted an application to the European Court of Human Rights contending that Hungary's new Church Law is illegal and discriminatory. Hungary's Constitutional Court has already rejected their claims. Under the Hungarian law, which took effect on January 1, 3 other branches of Judaism are granted official recognition, but the Reform movement is not.  The law recognizes Neolog (Hungarian Conservative), Orthodox and Status-quo (associated with Chabad-Lubavitch) congregations. (Background.)

Cert. Denied In Challenge To Firings Of Moorish American Correctional Officers

The U.S. Supreme Court on Monday denied certiorari in Bey v. New York, (Docket No. 11-1340, cert. denied 6/25/2012). (Order List.) In the case, the 2nd Circuit dismissed on res judicata grounds a suit by two former New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes. In the suit, the officers challenged on constitutional grounds their termination for filing false tax documents. The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions. (See prior posting.)

German Court Says Parents May Not Decide On Religious Circumcision For Their Sons

The Algemeiner as well as the Jewish Press report that a district court in Cologne, Germany ruled this week in an appeal from a trial court's decision that parents do not have the right to decide on religious circumcision for their sons.  The court said that non-medically necessary circumcision causes "serious and irreversible interference in the integrity of the human body." The court went on to hold that circumcision "contravenes the interests of the child to decide later on his religious beliefs."  It held that the parents' rights to provide for their children and their religious freedom are not sufficient justifications for imposing the harm caused by circumcision. According to Haaretz, the case grew out of a suit brought by German authorities against a Muslim doctor after his botched circumcision on a 4-year old boy caused the boy to be rushed to an emergency room. While the court held that doctors in the future can only perform circumcision for health-related reasons, it acquitted the doctor involved in this case because it was not clear previously that his conduct was illegal. Criticizing the court's decision, Rabbi Aryeh Goldberg of the Rabbinical Center of Europe said: "The decision is contrary to human rights charter of the European Union, to which the German legal system is committed, and undermines the basic right to worship in the German Constitution."

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Former Student's Challenge To Remediation Plan On Counseling LGBT Clients Dismissed

In Keeton v. Anderson-Wiley, (SD GA, June 22, 2012), a Georgia federal district court, in a lengthy opinion, dismissed claims by a former graduate student in Augusta State University's graduate counselor education program that her constitutional rights were infringed when she was dismissed for refusing to complete a required remediation plan.  The remediation requirements were imposed when graduate student Jennifer Keeton, a devout Christian, told faculty that she would not condone the propriety of homosexual relations or a homosexual identity in a counseling situation.  This position violates professional ethical standards of the American Counseling Association that require counselors to respect the diversity of their clients and avoid imposing values on them that are inconsistent with counseling goals. The court rejected both Keeton's facial overbreadth and vagueness challenges as well as her "as applied" challenges to the remediation plan. Finding no viewpoint discrimination against Keeton, the court said:

Keeton's conflation of personal and professional values, or at least her difficulty in discerning the difference, appears to have been rooted in her opinion that the immorality of homosexual relations is a matter of objective and absolute moral truth. The policies which govern the ethical conduct of counselors, however, with their focus on client welfare and self-determination, make clear that the counselor's professional environs are not intended to be a crucible for counselors to test metaphysical or moral propositions. Plato's Academy or a seminary the Counselor Program is not; that Keeton's opinions were couched in absolute or ontological terms does not give her constitutional license to make it otherwise.

The court also rejected Keeton's "compelled speech" claim, saying that when someone voluntarily chooses a profession, the person must comply with its rules and ethical requirements.  Finally the court rejected Keetons's free exercise of religion, unconstitutional condition and equal protection challenges.

The court's decision was consistent with an earlier 11th Circuit decision in the case that refused to grant a preliminary injunction because plaintiff had not shown a substantial likelihood of succeeding on the merits. (See prior posting.)  SPLC reports on the district court's latest decision.

Issues of Fact Remain On Accommodation of Employee's Sunday Observance

In Jacobs v. Scotland Manufacturing, Inc., (MD NC, June 21, 2012), a former employee who was fired for refusing to work on Sundays for religious reasons sued under Title VII of the 1964 Civil Rights Act. The company claimed that it had offered the employee an accommodation. He could use vacation time in lieu of working on Sundays. Plaintiff, however, contended that this arrangement also violates his religious beliefs. The court refused to grant summary judgment for defendants, saying that factual questions remain as to the reasonableness of the employer's proposed accommodation and as to whether other accommodations would cause the employer undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]