3rd Circuit: Religious Accommodation For Bus Driver Would Involve Undue Hardship On Employer

In Fouche v. NJ Transit, (3d Cir., July 16, 2012), the U.S. 3rd Circuit Court of Appeals held that accommodating a bus driver's need for religious reasons to not work on Sundays would have placed an undue hardship on New Jersey Transit. It would have required the transit authority to shift some Sunday driving to other drivers in breach of the seniority provision of the union's collective bargaining agreement. The court said it was impressed by the agency's willingness to employ the driver on a part-time basis to make it possible for him to avoid Sunday driving. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Town Reacts To Group's Complaint About Cross On Public Property

The Indianapolis Star reported Tuesday on the reaction of residents of Dugger, Indiana to the complaint filed by Americans United with the Town Council over a cross put up two years ago on a piece of land owned by the town located near the "Welcome to Duggar" sign.  The 26-foot tall cross, with "Jesus Saves" written on it, was put up by a 72-year old retired welder with the approval of Town Council. Now however, to the consternation of many residents, Council president Dwight Nielson says the town cannot afford to fight this in court, and would likely lose anyway. He is considering either moving the cross to private property or selling the land on which the cross stands to Faith Community Church that owns the cross. Charles Hay, who originally proposed to the Town Council that it allow the cross on public property said of the cross: "It ain’t hurting nobody. If you’re not for it, don’t look at it."

Population Flees Northern Mali As Strict Islamic Law Is Imposed

A front-page article in today's New York Times reports on the thousands fleeing from the imposition of strict Islamic law in the northern section of the African country of Mali:

The vast desert expanse of northern Mali has become a magnet for Islamic extremists who have tightened their grip on Timbuktu and other far-flung towns, imposing a strict form of justice that is prompting tens of thousands of people to flee what some are likening to an African Afghanistan.

Rattled recent arrivals at a 92,000-person makeshift camp here at Mauritania’s remote eastern edge describe an influx of jihadists — some homegrown and others possibly from afar — intent on imposing an Islam of lash and gun on Malian Muslims who have long coexisted with Western tourists in the fabled town of Timbuktu.

Ministerial Exception Inapplicable To FLSA Suit By Mashgiach Against Catering Firm

Altman v. Sterling Caterers, (SD FL, July 17, 2012), is a suit alleging violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) brought by a masgiach (kosher standards supervisor) against the catering firm for whom he works. Plaintiff Mauricio Altman supervises the food served by the catering company at the Jewish Community Center in Davie, Florida. The court, in a decision by a federal magistrate judge, rejected defendants' claim that the lawsuit should be dismissed under the ministerial exemption (ministerial exception) doctrine. It held that without deciding whether or not the ministerial exception applies to suits under the FLSA, the defendant, a commercial catering firm, would not qualify for the exemption because it is not a religious institution:

As a for-profit catering company providing both kosher and non-kosher food, Sterling is more akin to a restaurant serving special food to customers than a religious institution.

Challenge To ACA Contraceptive Services Mandate Dismissed On Standing and Ripeness Grounds

In State of Nebraska v. United States Department of Health and Human Services, (D NE, July 17, 2012), a Nebraska federal district court dismissed on standing and ripeness grounds a lawsuit by 7 states, 3 Catholic organizations and 2 individuals challenging the mandate issued under the Affordable Care Act that health insurance policies (with limited exceptions) cover contraceptive services. (See prior posting.) Plaintiffs claimed that the mandate will coerce religious institutions and organizations to subsidize contraception, abortifacients, sterilization, and related services in violation of their religious beliefs. They also alleged that state budgetary stability will be threatened if religious organization employers stop providing health insurance in order to avoid the mandate.

The court held that the 3 Catholic organizational plaintiffs as well as the 2 individuals lack standing because their health plans are grandfathered and thus not covered by the mandate. Also it was not shown that the employers of the individual plaintiffs do not qualify for the narrow religious organization exemption from the mandate. The court held that the states' theory of standing "is based on layers of conjecture." The complaint:

merely offers guesses about how independent actors will respond to the Rule and speculation that these responses could cause people to qualify for, and obtain, state benefits that they would not otherwise seek, which will then strain the States’s budgets. This is not sufficient to establish standing.

The court also held that the claims are not ripe:

although the Rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of "religious employer," ... [it] is currently undergoing a process of amendment to accommodate these organizations. The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the Rule when the temporary enforcement safe harbor terminates....

AP reporting on the decision quotes Nebraska Attorney General Jon Bruning's reaction:

Today's decision completely disregards the federal government's continued shell game when it comes to this rule. Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated.

Israel's Coalition Government Fragments Over Law To Draft Ultra-Orthodox Yeshiva Students

In Israel yesterday, the Kadima Party withdrew from Prime Minister Benjamin Netanyahu's coalition government after only 73 days when negotiators were unable to reach a compromise on a new law to provide for the drafting of haredi (ultra-Orthodox) Jews into the Israeli military. The withdrawal of the 28 Kadima members of the Knesset from the coalition left Netanyahu with a narrow majority in the 120-seat legislative body. As reported by the Jerusalem Post and JTA, Prime Minister Netanyahu had proposed a law that would have required half of the haredi men to enlist in the military at age 18-23, while the other half would have performed civilian service at ages 23-26. Kadima leader Shaul Mofaz said that this did not go far enough toward the concept of equal service by all. The current Tal Law that grants draft deferrals to most haredi yeshiva students was struck down by the Israeli Supreme Court in February. (See prior posting.) If the Knesset does not pass a new law by August 1, the Defense Ministry will have authority to draft all yeshiva students. Defense Minister Ehud Barak said his ministry would increase the number of yeshiva students who are drafted, but would not conscript all haredi.

Faith-Based Recovery Shelter Loses RLUIPA Challenge To Zoning and Fire Code Enforcement

In Affordable Recovery Housing v. City of Blue Island, (ND IL, July 13, 2012), an Illinois federal district court denied a faith-based recovery and housing facility a preliminary injunction it sought to prevent enforcement against it of Blue Island, Illinois' zoning and fire codes.  Plaintiff claimed that the city's enforcement activity violated the federal Religious Land Use and Institutionalized Persons Act and Illinois' Religious Freedom Restoration Act. The court held, however, that neither the requirement to obtain a special use permit to operate the extensive residential and training facility in an area zoned for residential usage, nor the requirement to install a sprinkler system, imposed a substantial burden on plaintiff.

Justice Department Files Brief In Support of Native American Inmates' Challenge To No Tobacco Rule

As reported by AP, the U.S. Department of Justice yesterday filed a brief in support of Native American inmates who are challenging South Dakota's ban on their use of tobacco in religious ceremonies. The government's brief (full text), captioned "Statement of Interest of the United States," in Native American Council of Tribes v. Weber, (D SD, filed 7/16/2012), contends that the ban violates inmates' rights protected by the Religious Land Use and Institutionalized Persons Act.  The government argues:

Defendants’ argument that plaintiffs are not substantially burdened by the tobacco ban is, in actuality, a request for a judicial determination of the importance and centrality of tobacco use to the plaintiffs’ religious practice. This determination, however, is explicitly forbidden by RLUIPA and relevant case law, and this court should decline to undertake such a task.

RFRA Challenge By Native Americans To Solar Project Rejected

In La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. U.S. Department of the Interior, 2012 U.S. Dist. LEXIS 97759 (CD CA, July 13, 2012), a California federal district court rejected a claim by a Native American group that a solar energy generation project on federal land approved by the government will substantially burden their religious exercise in violation of the Religious Freedom Restoration Act. According to the court:

Alleging that the Project impedes Plaintiff's access to a religious site [the Salt Song Trails] is simply not enough to suggest that the Plaintiffs are deprived of the kind of benefit protected by RFRA....Neither do Plaintiffs demonstrate how the Project forces them to act contrary to their religious beliefs....

Early Cert. Petition Filed In Another DOMA Case

In an unusual tactical move announced yesterday, a petition for certiorari was filed with the U.S. Supreme Court in Windsor v. United States even though the case has not yet been decided by the Second Circuit where an appeal is pending.  In the case, a New York federal district court held that the Defense of Marriage Act is unconstitutional. (See prior posting.) At issue is whether the federal government must recognize the unlimited estate tax marital deduction in the case of the death of a same-sex spouse. The lesbian couple involved had been legally married in Canada. The ACLU explained its reasoning in petitioning on behalf of the parties that prevailed at trial before the government's appeal has been decided:

At this point petitions for Supreme Court review have been filed in two other DOMA cases – GLAD’s Gill v. OPM case, which has been decided by the First Circuit, and Lambda Legal’s Golinski v. OPM case, which, like Windsor v. United States, doesn’t have an appeals court decision yet.

The Court will likely decide the constitutionality of DOMA this coming term, using one or more of these cases as vehicles for addressing the issue. We filed because we believe that Edie [Windsor's] story is a strong addition to the striking collection of plaintiffs in the Gill case and to Karen Golinski’s story as well. Now the Court has three cases, offering a variety of harms, to choose from.

[Thanks to Alliance Alert for the lead.] 

7th Day Adventists Challenge Alabama City's License Requirement For Door-to-Door Solicitaitons

The Birmingham (AL) News reported yesterday that the South Central Conference of the Seventh Day Adventist Church has filed a federal lawsuit against the city of Alabaster, Alabama challenging the constitutionality of its ordinances governing door-to-door pamphleteering and solicitation.  The suit was filed after a member of the Church's Summer Student Missionary Program was ticketed for failing to register and pay a license fee under the city's business license permit and solicitation ordinances.  The Church contends that the ordinances impose an unconstitutional prior restraint on speech. The solicitation permit ordinance requires review by a city-council appointed committee, with the potential for a public hearing. The court has set a hearing for Wednesday on plaintiffs' motion for a temporary injunction barring enforcement of the ordinances.

Egyptian Christians Boycott Talks With Clinton Claiming U.S. Favors Islamists

Ahram and Digital Journal both report that in Egypt, representatives of the Coptic Orthodox Church as well as representatives of Egypt's Evangelical Church refused an invitation to meet with U.S. Secretary of State Hillary Clinton yesterday. A number of Christian politicians also declined to meet with her.  They all believe that the United States favors Islamist parties over secular and liberal forces and is interfering in internal Egyptian affairs. A U.S. spokesman, however, said that Clinton "wanted, in very, very clear terms, particularly with the Christian group this morning, to dispel that notion and to make clear that only Egyptians can choose their leaders, that we have not supported any candidate, any party, and we will not."

Haiti's New Constutition Eliminates Prior Protection For Voodoo Practitioners

As reported by Reuters last month, on June 19 Haiti's President Michel Joseph Martelly finally published the amended version of the country's Constitution that that had been approved by Haiti's Parliament in May 2011.  The delay was caused by disputes over whether the version originally sent to the President for publication was accurate. Haiti reverted to its 1987 Constitution while a correct version was being created.  The publication last month puts the new amendments into effect. The most widely publicized amendments relate to dual citizenship, a new electoral council and greater independence for the judiciary.  However Haiti Libre reported last week that a less-publicized amendment may have the effect of reducing protections for practitioners of voodoo.  A 1935 Haitian law-- Decree-Law of 5 September 1935 on superstitious beliefs-- outlawed ceremonies and rituals involving offerings to "alleged deities," making believe by occult means that it is possible to cure individuals or change their wealth, and possessing cabalistic objects used to exploit the public's gullibility or naivety. Section 297 of Haiti's 1987 Constitution repealed this Decree-Law, along with certain others that were seen as "arbitrarily limiting the basic rights and freedoms of citizens." The new constitutional amendments that took effect last month in turn abrogate Section 297 of the 1987 Constitution. Priestess Euvonie Auguste, Head of the National Confederation of voodoo in Haiti, says that now vodoo practitioners will need to use their own means to protect themselves from any attacks.

UPDATE: A government spokesman says that voodoo practitioners' concerns are misplaced. He says that a 2003 Presidential decree recognized voodoo as a religion, and that the 1935 decree was never promulgated and thus never became law. (Haiti Libre 7/23/12).

Recent Articles of Interest

From SSRN:

• Moamen Gouda and Sang-Min Park, Religious Loyalty and Acceptance of Corruption, (January 29, 2012).
• Zvi H. Triger, Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court, (Israel Studies Review, 2013).
• Munir Ahmad Mughal, Judicial Education and Training: Importance in Islam, (July 8, 2012).
• Konstantinos Tsitselikis, Aspects of Legal Communitarianism in Greece: between Millet and Citizenship, (Oñati Socio-Legal Series, Forthcoming).
• Richard F. Storrow, Religion, Feminism and Abortion: The Regulation of Assisted Reproduction in Two Catholic Countries, (Rutgers Law Journal, Vol. 42, No. 3, 2011).

From SmartCILP and elsewhere

• Michale P. Mosher and Ryan K. Oberly, A Gift Not So Simple-- Tax Issues Associated With 'Love Offerings', Taxation of Exempts, July/Aug. 2012, pg. 28.
• Margaret F. Brinig and Nicole Stelle Garnett, Catholic Schools and Broken Windows, 9 Journal of Empirical Legal Studies 347-367 (2012).
• Marie A. Failinger, Finding a Voice of Challenge: The State Responds to Religious Women and Their Communities, 21 Southern California Review of Law & Social Justice 137-206 (2012).
• A Survey of Religious Freedom for Individuals and Faith-Based Institutions. Articles by Erik W. Stanley, Michael Stokes Paulsen, Wesley J. Campbell, Stanley W. Carlson-Thies and Francis J. Manion. 24 Regent University Law Review 237-402 (2011-2012).
• Citizenship and Civility in a Divided Democracy: Political, Religious, and Legal Concerns. Introduction by Mark L. Jones; articles by Eugene Garver, David Lyons, Jeremy Waldron, Marianne Constable, Steven D. Smith and Jack L. Sammons; response by David P. Gushee. 63 Mercer Law Review 793-913 (2012).

Wisconsin High Court In Fragmented Decision Dismisses Fired Church Employee's Breach of Contract Claim

DeBruin v. St. Patrick Congregation, (WI Sup. Ct., July 12, 2012), is a suit by a Catholic Church's former Director of Faith Formation against the parish claiming that she was fired from her position in breach of her contract with the congregation. The case was certified by the state court of appeals to the Wisconsin Supreme Court.  The case generated 4 separate opinions, with 5 of the 7 Supreme Court justices agreeing with the trial court that plaintiff's suit should be dismissed.  Justice Roggensack, in an opinion joined by 2 other justices, held that permitting the claim to proceed would unconstitutionally interfere with the Church's choice of ministerial employees.

Justice Crooks and Justice Prosser each wrote a concurring opinion taking the position that the court should decide the case on contract, rather than constitutional, grounds (though Justice Prosser discussed the constitutional issues at some length). Justice Crooks held that no contract exists because the contract provision plaintiff sought to enforce amounted to an illusory promise.  Plaintiff could be terminated only for good an sufficient cause, but the determination of what is sufficient cause was left by the contract solely to the employer's determination.  Justice Prosser concluded that a contract exists, but that the Church "reserved its rights to terminate its ministerial employees on grounds of 'dissatisfaction,' and it exercised those rights." Second-guessing the parish's decision would involve the court in an internal parish conflict and would be inconsistent "with any reasonable view of religious liberty."

Finally, Justice Bradley (joined by Chief Justice Abrahamson) dissented, holding that the common law contract claims at issue do not implicate free exercise concerns, and that it premature on the record before the court to determine whether the claims would foster excessive state entanglement with religion.  Among the issues on which the various justices disagree is the extent to which the the U.S. Supreme Court's 2012 Hosanna-Tabor decision on the ministerial exception doctrine (see prior posting) should be seen as barring common law breach of contract suits by ministerial employees.

Recent Prisoner Free Exercise Cases

In Guillory v. Ellis, 2012 U.S. Dist. LEXIS 94619 (ND NY, July 9, 2012) a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 94618, March 22, 2012) and held that factual disputes prevent the granting of summary judgment in favor of a Jewish inmate who complained about two incidents: on one date, due to confusion regarding the call-out list he was not permitted to attend religious services and on another date religious services for Purim were cut short.

In Farrell v. Ercole, 2012 U.S. Dist. LEXIS 95595 (SD NY, July 10, 2012), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 155,633, Dec. 8, 2011) and denied the habeas corpus petition of an inmate whose convictions grew out of several armed robberies. Among petitioner's complaints was the trial court's denial of his request for an adjournment of his trial on a Friday afternoon so he could return to Rikers Island before sundown to observe the Jewish Sabbath.

In Morales v. Putnam, 2012 U.S. Dist. LEXIS 96327 (MD PA, July 11, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 95906, June 7, 2012) and dismissed, for failure to exhaust administrative remedies, the complaint of an inmate who adhered to the Taino Indian religion that he was required to shave and get a hair cut after his transfer to an out-of-state prison. He says his religious grooming exemption should have prevented his being placed on the out of state prison transfer list.

City's Ban on Fortune Telling Violates 1st Amendment

In Adams v. City of Alexandria, (WD LA, July 11, 2012), a Louisiana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 97042, June 20, 2012) and entered a declaratory judgment that a city's ban on "palmistry, card reading, astrology, fortune-telling, [and] phrenology" violates the First Amendment.  Plaintiff is a tarot card reader who reads fortunes in exchange for voluntary donations. The magistrate rejected the city's argument that the ordinance merely regulates commercial speech. Applying strict scrutiny to the ordinance, the magistrate said:

Based on its own clairvoyance, the City has decreed in brief that it is impossible to predict the future, and contends the business of fortune-telling is a fraud and is inherently deceptive....  The City suggests that "fortune-tellers have no demonstrable facts upon which to base their predictions."... The danger of the government deciding what is true and not true, real and unreal, should be obvious. For example, some might say that a belief in God or in a particular religion, for example, or in the "Book of Revelations" is not supported by demonstrable facts. Books that repeat the predictions of Nostradamus and the daily newspaper horoscope could be banned under the City's reasoning.

In adopting the magistrate's recommendations, the federal district judge added one comment--  as a supplement to a footnote in the magistrate's opinion. The footnote had said that Tarot cards are a set of 22 pictorial playing cards. The court added:

tarot cards come in many forms, some dating back centuries.... Tarot decks are often 78 card decks, consisting of face cards (sometimes called Major Arcana) and number cards.... It is usually the 22 face cards that are used in fortune telling. We note also with interest that the "art" of fortune telling proliferates in front of St. Louis Cathedral, in the City of New Orleans, apparently without incident.

Delaware High Court Rejects Wife's Claim That Alimony Computation Infringed Her Free Exercise Rights

In Wright v. Wright, (DE Sup. Ct., July 10, 2012), the Delaware Supreme Court rejected a claim that the state's Family Court violated the free exercise clauses of the Delaware and federal constitutions in the way it computed a wife's ability to pay alimony. In reviewing her monthly expenses, the Family Court reduced her monthly charitable contributions from $1000 to $100, finding that to be a "more reasonable amount."  The $1000 represented the wife's tithing to her church, and she claimed that the alimony award prevents her from paying the obligatory 10% required by her religious beliefs. However, the Supreme Court held: "The Family Court found that even after the alimony payments, the Wife still has a surplus of $1,402—more than enough to pay for the remaining $900 for tithing should the Wife so choose."

Court Temporarily Enjoins Philadelphia's Ban On Food Program In Parks

Yesterday, a Pennsylvania federal district judge issued a temporary injunction against enforcement of Philadelphia's new ordinance that bans public feeding of groups of more than 3 people in any city park.  The ordinance is part of the city's efforts to close down an established program by Philadelphia churches to feed the homeless in city parks, and move the food program to indoor facilities.  As an interim measure, the program would be moved to an area outside city hall. (See prior posting.) According to the Philadelphia Inquirer, yesterday's ruling in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, July 12, 2012), did not focus on the constitutional objections that had been raised by plaintiffs, but instead on the fact that there had been little evidence that the City Hall site was preferable. In his ruling from the bench-- to be followed by a formal written opinion-- Judge William H. Yohn, Jr. said:

It seems to me that . . . the parks provide more dignity than the concrete apron outside City Hall. It doesn't strike me that City Hall is an acceptable option.

Judge Yohn said he was inclined to leave the temporary injunction in place for a year to give the city and homeless advocates time to work out an alternative arrangement.

Critical Reaction To German Ban on Ritual Circumcision of Boys Continues

Jewish Journal reported yesterday that rabbis from around Europe have held a 3-day meeting in Berlin to plan how to combat the ruling from a court in the city of Cologne last month banning ritual circumcision of young boys. (See prior posting.)  They plan further talks with Muslims and Christians who also see the ruling as a more general threat to religious freedom. Pinchas Goldschmidt, the chief rabbi of Moscow who organized the meeting, urged the German Jewish community to continue to perform circumcisions without waiting for a change in the law. The head of the German Medical Association, who has urged doctors to refrain from performing circumcisions until the legal situation is clarified, says that there is a risk that now increased numbers of non-medically trained persons will perform circumcisions. This could lead to medical complications.

This week Jewish and Muslim leaders also met with members of the German and the European  Parliament seeking legislation to stop the ban from spreading beyond the area affected by the Cologne court's decision.  Rabbi Goldschmidt said that the ban threatens the existence of Germany's Jewish community and is another example of creeping prejudice in European law against non-Christians. Germany's opposition Green Party promised to seek legislation to protect religious rights of Jews and Muslims.  Meanwhile, British Chief  Rabbi Lord Jonathan Sacks wrote a powerful denunciation of the German court's action, saying in part:

It is hard to think of a more appalling decision. Did the court know that circumcision is the most ancient ritual in the history of Judaism, dating back almost four thousand years to the days of Abraham? ... Did it know that banning milah [circumcision] was the route chosen by two of the worst enemies the Jewish people ever had, the Seleucid ruler Antiochus IV and the Roman emperor Hadrian, both of whom set out to extinguish not only Jews but also Judaism?.... If it did not [know this], then how was it competent to assess the claim of religious liberty? If it did, then there are judges in Germany quite willing to say to religious Jews, in effect, "If you don’t like it, leave." Do judges in Cologne today really not know what happened the last time Germany went down that road?

[Thanks to Eric Rassbach via Religionlaw for the lead on Lord Sack's comments.]

UPDATE: BBC News reports (7/13) that a spokesman for German Chancellor Angela Merkel said: "Circumcision carried out in a responsible manner must be possible without punishment..... For everyone in the government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany." He added that the government would look urgently at ways to create "legal certainty."