English Court Applies Ecclesiastical Abstention Doctrine To Dispute Over Sikh Leadership

In Khaira & Ors v Shergill & Ors, (EWCA, July 17, 2012), the England and Wales Court of Appeal held that a dispute over who has the power to name trustees of two Sikh Guwardas is not justiciable because it would require the court to resolve a dispute grounded in religious faith, doctrine and practice. At issue are trust deeds that give the express power to remove and appoint trustees of the Guwardas (one in Birmingham and the other in High Wycomb) to the First Holy Saint and his successors.  The parties to the litigation disagree over whether whether the 9th claimant, Sant Baba Jeet Singh Ji Maharaj, is "the Third Holy Saint" and whether he is "successor" (via the Second Holy Saint) to the First Holy Saint.  In an opinion by Lord Justice Mummery (with which the two other judges agreed), the court said:

... [C]ourts abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition. The courts also exercise caution in adjudicating on the fitness or otherwise of a particular individual to carry out the spiritual duties of a religious office, although there are some employment rights cases in which jurisdiction has been exercised on the basis of the existence of a contract of employment and of statutory rights not to be unfairly dismissed or discriminated against on a prohibited ground....

... [T]his court should put a halt to this case now. It is being asked to pronounce on a matter on which it cannot speak and should not pretend to speak with authority. The court risks diminishing respect for its own authority, as happened, for example, to the 19th century jurisdiction of the Judicial Committee of the Privy Council, when, in a more religious age, it gave appellate decisions (often ignored) in its ecclesiastical jurisdiction on points of the interpretation of scripture, doctrine, sacraments, ritual and vestments that arose in religious controversies in the established church. Those unfortunate and rather pointless battles in the courts have been rightly described as a cross-fire of jurisdictions that were a gold mine for barristers.

UK Human Rights Blog discusses the decision.

Hasidic Retailers In Williamsburg Seek To Impose Dress Code On Customers

The New York Post today reports on the growing trend in the Williamsburg section of Brooklyn for retail stores owned by Hasidic Jews to try to impose a dress code on all their customers.  Stores, including hardware, clothing and electronic retailers, have posted signs in English and Spanish reading "No Shorts, No Barefoot, No Sleeveless, No Low Cut Neckline Allowed in the Store."  Williamsburg is the home to many Hasidic Jews, but also is a center for the arts and music that the Post describes as a "hipster haven." (See Free Williamsburg blog.) An Orthodox resident of Williamsburg says: "We’re not concerned about the way women dress in Manhattan — but we are concerned with bringing 42nd Street to this neighborhood." Cardozo Law Professor Marci Hamilton says: "It’s further evidence of this era’s move toward Balkanization in the United States." The signs do not appear to violate any state or federal statutes.

Recent Prisoner Free Exercise Cases

In Chavez v. Lewis, 2012 U.S. Dist. LEXIS 97753 (ND CA, July 13, 2012), a California federal district court denied the habeas corpus petition of a state prisoner who claims that his continued placement in the prison's security housing unit violates his 1st Amendment free exercise rights as well as his rights under RLUIPA. Authorities claimed that petitioner had two pictures containing the Mactlactlomei symbol-- which they say was evidence of gang affiliation and petitioner claims was a religious symbol.

In De'Lonta v. Johnson, 2012 U.S. Dist. LEXIS 98705 (WD VA, July 17, 2012), a Virginia federal district court denied on various grounds free exercise and RLUIPA claims by a female inmate who was a member of the Assemblies of Yahweh affiliation of Judaism who was seeking kosher meals, a head scarf and performance of a candle lighting ceremony.

In Wright v. Godinez, 2012 U.S. Dist. LEXIS 98950 (ND IL, July 16, 2012), an Illinois federal district court allowed an inmate to move ahead with his complaint that he was denied a prayer cap, prayer rug, and religious oil that he needed in order to practice his religion.

In Yisrael v. Beasley, 2012 U.S. Dist. LEXIS 98899 (ED NC, July 17, 2012), a North Carolina federal district court permitted an inmate who practiced the Hebrew Israelite religion to move ahead with his claim that his right to wear a tallit and kippah was improperly restricted. However the court dismissed his claims regarding access to kosher food and recognition of the Hebrew Israelite religion by prison officials because those demands were now largely met by prison authorities.

New York MTA Ban On Ads That Demean Religious Groups Violates 1st Amendment

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, July 20, 2012), a New York federal district court held unconstitutional the provision in the standards for the sale of ad space on New York City buses that prohibits ads which demean a religious group. AFDI wanted to buy ad space on the tails of 318 NYCTA buses to run an ad reading: "In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad."  The court held that advertising space on exterior of buses is a designated public forum in which content based restrictions are subject to strict scrutiny. The MTA policy at issue which precludes ads that demean an individual or group on account of "race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation" was seen to be content based: "as presently worded, [it] overtly differentiates among speech based on the target of the speech's abuse and invective." The New York Times reports on the decision. [Thanks to Steven H Sholk for the lead and to Fairness blog for posting the decision.]

11th Circuit: Limits On Carrying Guns In House of Worship Do Not Violate Free Exercise Rights

In GeorgiaCarry.org, Inc. v. State of Georgia, (11th Cir., July 20, 2012), the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship.  After holding that plaintiffs who hold weapons carry licenses and regularly attend church services have standing to challenge the law, the court held that the law violates neither the free exercise clause of the 1st Amendment nor the right to bear arms protected by the 2nd Amendment. It rejected plaintiff's free exercise complaint because plaintiff failed to show how the law burdens a sincerely held religious belief.  It is not enough to merely allege that the law prohibits activities in a place of worship that are generally permitted elsewhere throughout the state.  The court rejected plaintiffs' 2nd Amendment claim because the law merely vindicates the right of a private property owner-- here a place of worship-- to decide whether to allow firearms on its premises. The Atlanta Journal Constitution reports on the decision.

President Issues Ramadan Greetings

President Obama yesterday released a statement (full text) sending Ramadan wishes from himself and Michelle to Muslim Americans and Muslims around the world. He said in part:

This year, Ramadan holds special meaning for those citizens in the Middle East and North Africa who are courageously achieving democracy and self-determination and for those who are still struggling to achieve their universal rights. The United States continues to stand with those who seek the chance to decide their own destiny, to live free from fear and violence, and to practice their faith freely. Here in the United States, Ramadan reminds us that Islam is part of the fabric of our Nation, and that—from public service to business, from healthcare and science to the arts—Muslim Americans help strengthen our country and enrich our lives.

The statement also indicated that again this year the White House will host an iftar dinner.

Appeals Court: Amish Man Failed To Show Sincere Religious Objection To Zoning Permit

In County of Jackson v. Borntreger, (WI App., July 19, 2012), a Wisconsin state appellate court, in a civil forfeiture action, rejected a claim by defendant, a member of the Amish faith, that applying for a county zoning permit before constructing a saw mill on his property would have unconstitutionally violated his religious freedom. The court concluded that neither defendant nor others who spoke on his behalf in court established that he held a sincere religious belief that was burdened by enforcement of the zoning law. The court said:

No oral or written religion tradition is cited, beyond the general reference to “their [Amish] religion.” No specific religious rule or tenet is described. In effect, Douglas [who spoke for defendant] generically applies the word "religion" to the same idea already expressed by Borntreger about his preference for a less complicated application process, without explaining what religious tenet or tradition would be burdened. Beliefs in general concepts of non-conformity or simplicity, without further explanation or specificity, are simply too general and vague to support a finding that any particular aspect of enforcement of the zoning ordinance burdens a sincerely held religious belief.

Yesterday's Winona Daily News reports on the decision.

Another Court Tosses ACA Contraceptive Coverage Mandate Suit On Ripeness Grounds

For the second time in two days (see prior posting), a federal district court has dismissed on justiciability grounds a lawsuit challenging the mandate under the Affordable Care Act requiring most health insurance policies to cover contraceptive services. In Belmont Abbey College v. Sebelius, (D DC, July 18, 2012), the federal district court for the District of Columbia held that a Benedictine College could not proceed at this time with its lawsuit claiming that the mandate violates its strongly held religious beliefs against sponsoring any health insurance plan that pays for contraception, sterilization or abortion. The court held that while Belmont Abbey College sufficiently alleged standing, the case should be dismissed on ripeness grounds. It said in part:

[T]he Court has before it a challenge to final regulations that Defendants have promised to amend.... The Court thus concludes ... that the Departments’ position on the policy at issue remains indeterminate..... The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns....

Life News reports on the decision.

Russian Mufti Injured, Aide Killed, In Attacks; Motives Unclear

Radio Free Europe reports that in the Russian republic of Tartarstan on Wednesday, the government-backed top Islamic leader, mufti Ildus Faizov, was injured when unknown assailants blew up his car in the capital of Kazan.  In a separate incident, the mufti's deputy, Valilulla Yakupov, was shot and killed near his home in Kazan. No one has claimed responsibility for the attacks that took place in the mainly Muslim republic just before the start of Ramadan. Interfax is carrying various theories about the attacks. One article suggests that the attack on Yakupov, an historian who founded Russia's first Islamic publishing house, was in retaliation for his opposition to fundamentalist Wahhabism which he saw as a threat to traditional Islam. Another article suggests that the mufti was attacked because Tartarstan's Muslims were unhappy with the his failure to carry out his promises to lower the cost of hajj tours after he put the sale of all hajj tours under his personal control. The Russian Investigative Committee and Tatar officials say that investigations of the attacks are under way.

German Bundestag Passes Resolution Urging Legalization of Circumcision

The Bundestag, the lower house of Germany's parliament, yesterday passed a resolution urging the government to present a draft law this fall when parliament resumes to guarantee "that the circumcision of boys, carried out with medical expertise and without unnecessary pain, is permitted." The resolution said that: "Jewish and Muslim religious life must continue to be possible in Germany. Circumcision has a central religious significance for Jews and Muslims."

As reported by the Global Post and The Forward, the resolution is designed to overrule a controversial decision last month by a court in Cologne that found circumcision of minors unconstitutional. (See prior posting.) The resolution was filed jointly by Chancellor Angela Merkel's Christian Democratic Union, the Social Democratic Party and the Free Democratic Party. It was opposed only by members of the socialist Left Party who urged that only a symbolic circumcision be allowed on minors, to be completed in adulthood on request. The resolution was hurried through in a special session of the Bundestag called to vote on economic aid for Spain.

School Board Settles Suit, Agreeing Not To Hold Graduation In Church

The Enfield, Connecticut School Board voted 6-3 on Wednesday night to settle a lawsuit brought against it by the ACLU and Americans United challenging its holding graduation exercises in a Christian church. (See prior posting.) The Hartford Courant reports that under the settlement, the school board agrees not to hold future graduations at First Cathedral and will pay an undisclosed portion of plaintiffs' $1 million in legal fees. The school board's insurer will cover up to $470,000 of the settlement. Board member Jennifer Rancourt, who voted in favor of the settlement said: "If it is something that offends a few people, then we have to respect that." Board member Kevin Fealy, one of the 3 who voted against the settlement, said: "Deep pockets with nothing to lose have the opportunity to push us into a corner."

Canadian Tribunal Finds Christian B&B Owners Violated Human Rights Code By Cancelling Reservation For Gay Couple

In Eadie and Thomas v. Riverbend Bed and Breakfast, (BCHRT, July 17, 2012), the British Columbia Human Rights Tribunal held that a bed and breakfast in a small Canadian town, and its owners who are members of the Mennonite Brethren Church, violated the sexual orientation discrimination provisions of the  B.C. Human Rights Code when they cancelled a room reservation after learning that it had been made by a same-sex couple.  The Tribunal held that it lacks jurisdiction to determine whether the Human Rights Code conflicts with the freedom of religion provisions of Canada's Charter of Rights and Freedoms. That issue must be presented to a court.  Instead, the Tribunal is limited to determining whether respondents had a "bona fide and reasonable justification" to discriminate.  The Tribunal Member hearing the case wrote:

I accept that the Molnars [the B&B owners] hold a sincere, personal and core religious belief that marriage is between a man and a woman and that sex outside of such a marriage,including same-sex sexual relations, is a sin. I also accept that the Molnars sincerely believe that to allow a same-sex couple to stay in a single bed in their home would harm their relationship to their Lord, and that they would not rent a room in their home for a purpose that conflicted with, or was contrary to, their personal religious beliefs....

She concluded, however, that to be acceptable, a justification had to be rationally related to the function or purpose of the bed and breakfast.  Here the policy of restricting rooms with one bed to heterosexual couples was rationally related to the owners' religious beliefs, but not to the B&B's purpose of offering temporary accommodations to the general public. The Tribunal issued a cease and desist order and awarded damages, including $1500 to each of the complainants for injury to dignity, feelings and self-respect.

The Province, reporting on the decision, says that the Molnars stopped operating their bed and breakfast when the complaint was filed against them, and they do not intend to reopen. [Thanks to Alliance Alert for the lead.]

TRO Obtained By Justice Department Expedites Occupancy Permit For Murfreesboro Mosque In Time For Ramadan

For Muslims, Ramadan begins at sundown this evening. Yesterday, a Tennessee federal district court judge issued a 14-day temporary restraining order (full text) in United States v. Rutherford County, Tennessee, (MD TN, July 18, 2012) requiring county officials to expedite the issuance of an occupancy permit for a controversial mosque in Murfreesboro (TN). The TRO was issued on the same day the lawsuit was filed. The Islamic Center's Memorandum of Law in support of its application for a TRO in parallel litigation outlines the lengthy legal battle that has been waged over the mosque. In 2011, the Tennessee Chancery Court dismissed challenges to the Rutherford County Regional Planning Commission's approval of building plans for the mosque, but allowed plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. That conclusion was based on the perceived importance of the matter to be discussed at the meeting. (See prior posting.) Five days later the state court refused to require a halt to ongoing construction of the mosque, but barred the county from issuing an occupancy permit. Yesterday the U.S. Department of Justice filed suit (full text of complaint) in federal district court alleging that Rutherford County, in complying with the Chancery Court's order, violated the Religious Land Use and Institutionalized Persons Act. (DOJ press release). In issuing the TRO, the court said that the heightened notice requirement imposed by the state court's interpretation of the Open Meetings Act substantially burdens the Islamic Center's free exercise of religion without a compelling governmental interest.

UPDATE: As reported by the Christian Science Monitor, the mosque construction supervisor says the the building will not be ready for occupancy for about two more weeks. Members hope to be in the building before the end of Ramadan.

Another Lawsuit Filed Challenging Affordable Care Act Contraceptive Coverage Mandate

Yesterday yet another lawsuit was filed challenging on religious liberty and other grounds the mandate issued under the Affordable Care Act requiring health insurance policies to cover contraceptive services (as well as education and counseling of women with reproductive capacity).  This time the suit was filed by Wheaton College, an evangelical Christian liberal arts college in Illinois. The suit was filed in federal district court in Washington, D.C. where a separate suit brought by Catholic University of America and four other Catholic institutions is already pending. In announcing the filing of yesterday's lawsuit-- the 24th separate suit challenging the mandate (list of lawsuits)-- the Becket Fund said that this "marks the first-ever partnership between Catholic and evangelical institutions to oppose the same regulation in the same court." The complaint (full text) in Wheaton College v. Sebelius, (D DC, filed 7/18/2012) alleges in part:

2... Wheaton’s religious beliefs forbid it from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion.....  3. With full knowledge of these beliefs, the government issued an administrative rule... that runs roughshod over Wheaton’s religious beliefs... by forcing it to provide health insurance coverage for abortifacient drugs and related education and counseling.

4. The government’s Mandate unconstitutionally coerces Wheaton to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Wheaton to facilitate government-dictated speech that is incompatible with its own speech and religious teachings. Having to pay a penalty to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional.

Christianity Today reports on yesterday's lawsuit. [Thanks to Lael Weinberger for the lead.]

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.