Recent Prisoner Free Exercise Cases

In Curtis v. Caldwell, 2012 U.S. Dist. LEXIS 100969 (ED MI, July 20, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 101501, June 26, 2012) and dismissed on various grounds, including failure to exhaust administrative remedies, an inmate's claim that his request for Native American religious services had been denied.

In Cobb v. Mendoza-Powers, 2012 U.S. Dist. LEXIS 102899 (ED CA, July 24, 2012), a California federal magistrate judge recommended dismissal of an inmate's challenge to the prison's grooming policy. Plaintiff had made a religious vow not to comb or shave his hair. While the 9th Circuit in another case had found the grooming policy violates RLUIPA, plaintiff brought only a 1st Amendment challenge.

In Bradford v. Lee, 2012 U.S. Dist. LEXIS 102887 (WD LA, July 24, 2012), a Louisiana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 102886, June 20, 2012) and dismissed an inmate's complaint that his rights under RLUIPA and the 1st Amendment were infringed when he was denied access to church services on one or more occasions by a prison guard.

In Hall v. Love, 2012 U.S. Dist. LEXIS 101337 (SD IL, July 23, 2012), an Illinois federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 103647, June 27, 2012) and permitted a Muslim inmate to proceed with his claim that his free exercise  rights were violated when he was excluded from Ramadan and Jumu'ah services.

In Brewer v. Tesinsky, 2012 U.S. Dist. LEXIS 103984 (CD CA, July 24, 2012), a California federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 103893, March 14, 2012) and permitted a Muslim pre-trial detainee to proceed with certain of his 1st Amendment and RLUIPA claims alleging that jail authorities failed to accommodate his religious vegetarian diet.

In Manges v. Harman, 2012 U.S. Dist. LEXIS 103506 (ND IN, July 24, 2012), an Indiana federal district court permitted an inmate to proceed with his 1st Amendment damages claim and his retaliation claim growing out of the alleged denial to him of the opportunity to attend Eastern Orthodox services and turning away a priest who had come to conduct services.

Church's Suit Over Texas Law On Recall Petitions Dismissed

Hoyt v. City of El Paso, Texas, 2012 U.S. Dist. LEXIS 104501 (WD TX, July 10, 2012), presents a claim by an El Paso church and its pastor that Texas and El Paso city officials have chilled the church's right to circulate recall petitions aimed at the city's mayor and two city council members because of their role in restoring health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) The court dismissed the complaint finding that the challenged election law only bars corporations from circulating petitions when doing so amounts to a political contribution and that plaintiffs allege only a subjective fear of enforcement.

Ministerial Exception Applies Even Though Faculty Are Not Members of Seminary's Religion

In two related cases (but decided by panels that had only one judge in  common), the Kentucky Court of Appeal has held that the ministerial exception applies in two lawsuits by a seminary's faculty against the school, even though the plaintiffs are not members of the religious denomination-- Disciples of Christ-- that operates the seminary. Lexington Theological Seminary in 2009 declared a financial emergency, eliminated tenure and reduced the number of faculty and staff. In  Kant v. Lexington Theological Seminary, (KY CT App., July 27, 2012), a Kentucky appellate court in a 2-1 decision dismissed a breach of contract suit brought by a Jewish faculty member (a Jewish studies scholar) who was dismissed in the reorganization. The court, in an opinion by Judge Moore, held first that:

an inquiry into the rationale for LTS’s decision making as to who will teach its students—all of whom attend there with a desire to become pastors or ministers—would be an inquiry into an ecclesiastical matter by this Court.

It then held that the suit should also be dismissed under the ministerial exception doctrine, reasoning:

Because Kant’s primary duties involved teaching religious-themed courses at a seminary, his position was one that prepared students for Christian ministry.... Given his position as a faculty member teaching at a seminary, Kant’s personal views are not determinative of the function he served. Rather, we review the function of his position: teaching future Christian ministers primarily on Judeo-Christian subjects and culture. Kant’s personal faith and beliefs do not clash with the actuality that the classes he taught at LTS were for the purpose of preparing future church leaders of the Christian faith.

Chief Judge Acree filed a concurring opinion. Judge Keller dissented, arguing that there was a question of fact as to whether Kant was merely teaching about religion, or instead was teaching the Christian religion as an article of faith. He said: "in the absence of any evidence regarding the actual content of Kant's courses, I cannot conclude that Kant was a "minister" for purposes of the ministerial exception.

The second case, Kirby v. Lexington Theological Seminary, (KY Ct. App., July 27, 2012) involved a suit by a faculty member who belonged to the Christian Methodist Episcopal Church, but taught solely religious courses at the seminary. In a unanimous decision, the court dismissed the suit applying the ministerial exception doctrine. Judge Caperton wrote:

Given the Seminary’s commitment to Christian unity and an ecumenical spirit reflected in denominational diversity and interfaith inclusiveness, we fail to find persuasive Kirby’s argument that his lack of ordination or his lack of membership in the Christian Church (Disciples of Christ) is determinative of his status at the Seminary.

Chief Judge Acree filed a concurring opinion. The Louisville Courier Journal reports on the decision.

School Parents In NY's Rockland County Seek Ouster of 7 Orthodox Jewish Board Members

According to today's New York Times, in Rockland County (NY)'s East Ramapo Central School District, 14 Black and Hispanic parents of public school students have petitioned the State Education Department seeking removal of 5 Orthodox Jewish members of the school board.  Even though very few Orthodox Jews send their children to public schools, 7 of the 9 school board seats are held by Orthodox Jews because of their well-organized turnout in elections.  The state education commissioner can remove local school board members for willful misconduct or neglect of duty. Petitioners want a special monitor appointed to oversee the district after long-running disagreements between public school parents and the school board.  The parents claim that the school board is favoring the Orthodox Jewish community by using state resources to place students with disabilities in private schools, and in attempts to sell two former school buildings to yeshivas at below-market value. The district has laid off 25% of its teachers in recent years. School board president Daniel Schwartz charged that suggesting Orthodox Jewish board members could not deal with the needs of non-Jewish children is offensive and anti-Semitic. (See prior related posting.)

Court Issues Preliminary Injunction In Corporation's Challenge To ACA Contraceptive Coverage Mandate

Today in Newland v. Sebelius,(D CO, July 27, 2012), a Colorado federal district judge relied on the Religious Freedom Restoration Act in issuing a preliminary injunction against enforcing the contraceptive coverage mandate issued under the Affordable Care Act against a small private company. The lawsuit was brought by Hercules Industries, Inc., a small manufacturing company, and its Catholic officers and directors. Plaintiffs allege that the company maintains a self-insured group health plan for its employees "[a]s part of fulfilling their organizational mission and Catholic beliefs and commitments." To further strengthen its position, the company recently added provisions to its articles of incorporation specifying that its primary purposes are to be achieved by "following appropriate religious, ethical or moral standards," and allowing its board to prioritize "religious, ethical or moral standards" over profitability.

The court held that:

Because this case presents "questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation," I find it appropriate to enjoin the implementation of the preventive care coverage mandate as applied to Plaintiffs.

The court pointed out that among the questions of first impression posed by the case are:

Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to “pierce the veil” and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis?

Nevertheless, the court concluded that it was unlikely that the government could show, as required by RFRA, that its interest in uniform application of the Affordable Care Act was a compelling interest or that it had used the least restrictive means to achieve that interest in this case.  The Becket Fund issued a press release announcing the decision, as did Alliance Defending Freedom.

Romney Moves Jerusalem Fund Raiser Further From End of Tisha b'Av

JTA reports that the Mitt Romney campaign has moved a $50,000 per person fund raiser he plans to hold in Jerusalem during his current trip overseas from Saturday night to Sunday morning.  The campaign had been criticized for scheduling the event for just after the end of Tisha b'Av, the Jewish fast day marking the destruction of the first and second Jewish Temples in Jerusalem. The event was originally scheduled for 9:30 p.m., an hour after the end of the holy day.

President Names 2 To Advisory Council on Faith-Based and Neighborhood Partnerships

The White House announced yesterday President Obama's intention to appoint two new members to the President’s Advisory Council on Faith-Based and Neighborhood Partnerships. The new appointees are: Maria T. Nagorski, Executive Director of the nonprofit organization Fair Chance which focuses on issues of child poverty; and Elder Steven E. Snow, Church Historian, Recorder, and Church History Department Executive Director for the Church of Jesus Christ of Latter-day Saints.

Pentagon Hosts Iftar Dinner

On Wednesday the Pentagon hosted its 13th annual Iftar dinner to mark the Muslim holy month of Ramadan.  According to the American Armed Forces Press Service, among the 120 guests were Defense Department officials; military officers from Iraq, Bangladesh, Jordan, Pakistan, Turkey and Bahrain; ambassadors from South Africa and Bahrain; and the two Muslim members of Congress. In his remarks (full text) to the dinner, Secretary of Defense Leon Panetta said in part:

We’re grateful to be able to host this Iftar Dinner at the Pentagon and share in one of the great traditions of the Muslim faith.

We’re also able to affirm one of the fundamental principles of our country – our ability to freely practice our chosen faith and to be able to worship our God wherever we are.

[Thanks to God and Country blog for the lead.]

New Poll Shows Most Americans Comfortable With Romney's Religion; Still Confusion Over Obama's Beliefs

Yesterday, the Pew Research Center released a new poll on religion and politics (full report). It finds that among the 60% of Americans that know Mitt Romney is a Mormon, 60% say they are comfortable with that while 19% say they are uncomfortable. Meanwhile, 17% of all those surveyed and 30% of Republicans think Barack Obama's religion is Muslim.

City To Redesign Logo To Remove Cross and Chapel

The Steubenville, Ohio Herald Star reports that Steubenville's City Council agreed Tuesday night to redesign the city's logo after a complaint (full text of letter) from the Freedom From Religion Foundation objecting to the depiction on the logo of Christ the King Chapel on the campus of Steubenville's Franciscan University-- including a Latin cross on top of the chapel.  According to yesterday's Herald Star, the logo was just unveiled in December.  Apparently the city planned to use the logo on city letterhead, signs, vehicles and on the floor of the courthouse. FFRF had argued:

Any claims of historical or cultural significance to the Latin cross on the Steubenville logo do not relieve the city of its constitutional obligations. The City of Steubenville must not endorse 'faith' and church. While we understand that Franciscan University is a part of the city, the city may not depict the university chapel and cross because to do so places the city's imprimatur behind Christianity.

The city's law director said that they will approach the original designer of the logo and ask him to replace the chapel on the logo with a silhouette of another campus building, such as the library or a dormitory. Designer Mark Nelson said they had already designed a version without the cross, but he does not understand why a silhouette of the chapel itself is objectionable.

6th Circuit: Undue Hardship Showing In Title VII Case Refers to Hardship On Employer, Not Employees

In Crider v. University of Tennessee, Knoxville, (6th Cir., July 23, 2012), a Seventh Day Adventist was fired from her position as one of the coordinators of the University of Tennessee's Programs Abroad when she refused to perform work-related tasks from sundown Friday to sundown Saturday.  Particularly at issue was her rotating weekends with two others to monitor the emergency cell phone which students abroad could call in case of emergency. In a 2-1 decision in a Title VII religious discrimination case, the U.S. 6th Circuit Court of Appeals reversed the district court's grant of summary judgement to the University. The majority held that Title VII requires reasonable accommodation of religious beliefs unless doing so would impose undue hardship on the employer's business.  Hardship on fellow employees who are asked to switch shifts is not enough unless this would create an employee morale problem that affects the employer's ability to operate its business. Genuine issues of fact remained for trial on the question of reasonable accommodation.  Judge McKeague dissented. [Thanks to Michael Masinter via Religionlaw for the lead.]

Ft. Hood Shooter Held In Contempt By Military Judge For Refusing To Shave Beard

According to YNN Austin, a military judge yesterday held accused Fort Hood mass shooter, Maj. Nidal Hasan, in contempt for refusing to shave his beard that he is wearing for religious reasons. The military judge previously ruled that Hasan's beard violates military grooming regulations and disrupts court proceedings. (See prior posting.)  Last month, the court excluded Hasan from the court room and relegated him to watching the hearings in his case on closed circuit television in a trailer outside the court house. (See prior posting.) Yesterday Military Judge Col. Gregory Gross fined Hasan $1000. Hasan continued to insist on keeping his beard, saying that shaving it would signify rejection of an important tenet of Islam.  The court suggested that it might order Hasan to be forcibly shaved once the important parts of his trial begin so Hasan can be in the court room.

Scottish Government Will Move Ahead With Same-Sex Marriage Law; Will Protect Conscience Rights

After conducting a public consultation last year, the government of Scotland announced yesterday that it intends to move ahead with legislation to permit same-sex marriage and religious ceremonies for civil partnerships.  However it will also add protections for freedom of speech and religion. SDGLN reports on these developments and reprints the full text of the Scottish Government's announcement. No religious body will be required to conduct same-sex marriages.  The Government will also seek an amendment to the UK Equality Act to assure protection for clergy who disagree with their religious organization's decision to perform same-sex marriages. Currently the Equality Act grants an exemption from equality requirements only where necessary to comply with the doctrine of a religious organization or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. The Scottish government will also include provisions to protect the beliefs of teachers and parents in schools. The curriculum in Catholic schools will continue to be controlled by the Scottish Catholic Education Service.

Scientology Sea Org Members Did Not Show Trafficking Victims Protection Act Violations

In Headley v. Church of Scientology International, (9th Cir., July 24, 2012), the U.S. 9th Circuit Court of Appeals held that a husband and wife, both former members of the Church of Scientology's Sea Org, failed to show that the Church had forced them to provide labor in violation of the Trafficking Victims Protection Act. The court said:

The one adverse consequence the Headleys could have faced, had they taken any of their many opportunities before 2005 to leave the Sea Org, was to have been declared "suppressive persons" and thus potentially to have lost contact with family, friends, or each other. But that consequence is not "serious harm"—and warning of such a consequence is not a "threat"—under the Trafficking Victims Protection Act.

By deciding the case on statutory grounds, the appeals court did not have to pass on the correctness of the trial court's ruling that plaintiffs' claims of psychological coercion were barred by the ministerial exception doctrine. (See prior related posting.) Reuters reports on the decision.

New Report Released On Christian Right's Political Activities In Africa

Political Research Associates, a Massachusetts-based progressive think tank, yesterday released a new report titled Colonizing African Values: How the U.S. Christian Right is Transforming Sexual Politics in Africa. According to the Executive Summary:

This report investigates how key U.S. Christian conservatives of various backgrounds—Roman Catholics and Mormons, as well as right-leaning evangelicals—are expanding the U.S. Christian Right infrastructure on the African continent with new institutions and campaigns that are reshaping national political dynamics and even laws based on an American template. Within the past five years, the Roman Catholic Human Life International (HLI), the Pat Robertson-founded American Center for Law and Justice (ACLJ-USA), and Family Watch International (FWI), led by a Mormon, have launched or expanded their work in Africa dedicated to promoting their Christian Right worldview. A loose network of rightwing charismatic Christians called the Transformation movement joins them in fanning the flames of the culture wars over homosexuality and abortion by backing prominent African campaigners and political leaders.

LGBTQ Nation has more on the report.

Monsignor Gets 3 to 6 Year Sentence For Cover-Up of Priest Sexual Abuse

According to Reuters, Monsignor William Lynn, who was convicted in June (see prior posting) on one count of child endangerment for covering up sexual abuse by other priests was sentenced today to 3 to 6 years in prison.  Lynn served as the Philadelphia Archdiocese's chief investigator on clergy misconduct. He transferred priests to other parishes without disclosing the sex abuse charges that had been leveled against them. Lynn is the highest ranking U.S. Church official to be convicted of covering up clergy sexual misconduct.

Conservative Congressman Criticizes Bachmann's Muslim Brotherhood Claims

Think Progress reported yesterday on remarks by conservative Wisconsin Congressman Jim Sensenbrenner strongly defending the 1st Amendment's religious freedom protections as well as the constitutional ban on religious tests for federal office.  The remarks came in Sensenbrenner's rejection of charges by Rep. Michelle Bachmann, a member of the House Intelligence Committee, that the Muslim Brotherhood has infiltrated government policies and activities.  Bachmann last month sent a letters to the inspectors general of 5 federal agencies demanding that they investigate.(Links to full text of each letter.)  When challenged by Rep. Kieth Ellison, Bachmann responed with a 16-page letter (full text) particularly singling out Huma Abedin, a top aide to Secretary of State Hillary Clinton. Last week, Sen. John McCain, in a speech on the floor of the Sentate (full text) strongly defended Abedin, saying: "When anyone, not least a member of Congress, launches specious and degrading attacks against fellow Americans on the basis of nothing more than fear of who they are and ignorance of what they stand for, it defames the spirit of our nation, and we all grow poorer because of it."

7th Circuit En Banc: High School Graduation In Church Violated Establishment Clause

In a 7-3 en banc decision yesterday in Doe 3 v. Elmbrook School District, (7th Cir., July 23, 2012), the U.S. 7th Circuit Court of Appeals held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. Judge Flaum, writing for the majority and attempting to limit the decision to the facts of this case, said that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the  proselytizing environment of Elmbrook Church." He explained:

high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity....  [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state....

[I]f constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom... it appears overly formalistic to allow a school to engage in identical practices when it acts through a short-term lessee.

Judge Hamilton joined the majority opinion but also wrote separately to respond further to the dissents.

Judge Ripple wrote a dissent, joined by Chief Judge Easterbrook and Judge Posner.  He said in part:

To the reasonable attendee ... it was obvious that the public high school that educated the graduates does not own the church and did not place in the church the various displays and iconography that disturb the plaintiffs.... [I]it would be totally unreasonable for any student to attribute to the District any endorsement of the message of the iconography; it belongs to—and they know it belongs to—someone else. It symbolizes the landlord’s view, not the District’s view....

At bottom, today’s holding requires that the state assume the affirmative obligation of avoiding any association with a “pervasively religious” organization when that association would require an individual to be exposed—even incidentally and passively—to expressions of that organization’s “religiosity.” Should this principle ... become imbedded in our law, it will undermine significantly the principles that presently form the foundations of our Establishment Clause jurisprudence. Those religions that toe the line and conform to the profile of a “safe religion” will enjoy full acceptance by the civil polity. Those who remain “pervasively religious” will find themselves in the shadows of the American journey.

Judges Easterbrook and Posner each wrote a separate dissent as well.  Judge Posner ended his dissent as follows:

Separation rulings by the Supreme Court seem only to stimulate religious fervor. Religions thrive on persecution, real or imagined. Where would Christianity be without its martyrs? The real winner of this case is likely to be—Elmbrook Church.

Americans United issued a release announcing the decision. [Thanks to Scott Mange for the lead.] 

Recent Articles and Forthcoming Books of Interest

From SSRN:

• Benjamin L. Berger, The Aesthetics of Religious Freedom, (Varieties of Religious Establishment, Winnifred Sullivan and Lori Beaman, eds., Ashgate, Forthcoming.)
• Shadi Mokhtari, Green Movement, Clerical, Activist and Public Responses to Heightened Repression Since the 2009 Presidential Elections in Iran: A Survey and Assessment of Implications for Political Change, (USIP's Iran Internal Politics Study Group, Forthcoming).

From SmartCILP and elsewhere:

• Catholic Social Science Review, Vol. XVI (2011), includes a symposium and numerous articles on Caritas in Veritate. (Full text of all articles.)
• Raj Bahla, Poverty, Islamist Extremism, and the Debacle of Doha Round Counter- Terrorism: Part Three of a Trilogy -- Trade Remedies and Facilitation, 40 Denver Journal of International Law & Policy 237-320 (2011-2012).

Forthcoming books:

• Geraldine Fagan, Believing in Russia - Religious Policy after Communism, (Routledge, Oct. 2012).
• Kathleen Holscher, Religious Lessons: Catholic Sisters and the Captured Schools Crisis in New Mexico, (Oxford Univ. Press, Aug. 2012).

Muslim Olympic Athletes Face Issue of Ramadan Fast

CNN reported yesterday on the dilemma facing Muslim athletes competing in the London Olympics starting this week. It is still Ramadan, and they must decide whether or not they will eat and drink during daylight hours, or instead observe the traditional dawn to dusk fast. In London, this would make it a 17-hour fast each day.  Sports nutritionist Hala Barghout says that it is physically impossible for the athletes to eat the amount of food they need in the 7 hours that remain each day.  But Ahmed Abdul Aziz Al Haddad, grand mufti of Dubai, says:

Playing sports is not a requirement in Islam. Players become athletes by choice. This optional activity, therefore, does not allow athletes to break their fast.... They must be ambassadors of their faith..... 

He says that athletes may eat or drink if fasting threatens their health,  "but to immediately break your fast without being hungry or thirsty is the same as submitting to your cravings and lusts, and not putting God's desire before your own."

Muslim authorities hold varying opinions on the issue. British Olympic rower Moe Sbihi, after discussing the issue with his imam, says he will not fast during the games.  Instead he will observe a fast later, and will feed 1,800 hungry people in Morocco after the Olympics as compensation for not fasting during Ramadan.