Many Claims Dismissed In Establishment Clause Suit On Philosophy Course Content

In Smith v. Arizona, (D AZ, July 31, 2012), an Arizona federal district court dismissed many, but not all, of the claims in a lawsuit in which a student at Maricopa Community College alleged that the philosophy course she took-- titled Introduction to Ethics-- was taught by the instructor "solely to indoctrinate her students with her Christian worldview" in violation of the Establishment Clause. Claims against the state of Arizona an the State Board of Education were dismissed on 11th Amendment grounds.  Plaintiff's claims for injunctive and declaratory relief were dismissed as moot, since she has already completed the course and has no reason to repeat it in the future. As to plaintiff's claim for damages, the court found that the individual defendants have qualified immunity on the Establishment Clause claim because "Plaintiff has not pointed to any specific actions by Defendants that obviously violated a clearly established right under the Establishment Clause or to any cases indicating that a college level Ethics course cannot be taught with reference to a specific  religion." However the court permitted plaintiff to move ahead with her damage claim for Establishment clause violations against the college and the college district, as well as her claim against the college for breach of contract. (See prior related posting.)

Plaintiff, Fired For Wearing Christian Lanyard, Can Proceed With Suit

In Hickey v. State University of New York at Stony Brook Hospital, 2012 U.S. Dist. LEXIS 105182 (ED NY, July 27, 2012), a New York federal district court denied cross-motions for summary judgment in a Title VII religious discrimination and retaliation lawsuit by a painter in the hospital's Physical Plant Department whose employment was terminated  for insisting on wearing a lanyard around his neck printed with the phrase "I ♥ Jesus." Attached to the lanyard was a plastic badge  holder with hand written religious messages on it. The hospital claimed this conflicted with its uniform policy.  It also alleged other job performance issues, including alleged proselytizing.

Indian Court Sentences 22 In Another Prosecution Over 2002 Gujarat Riots

According to AFP and BBC, in India, in another case growing our of the 2002 Hindu-Muslim riots in the state of Gujarat, a court this week sentenced 21 defendants to life in prison for attempted murder, arson and rioting. An additional defendant, a former police officer, was sentenced to one year in prison for dereliction of duty.  61 defendants were acquitted for lack of evidence. This case involved the Dipda Darwaza massacre in which Hindu rioters attacked a Muslim family, locked them in their house and set it ablaze, killing 11, after 60 Hindu pilgrims traveling in a train died in a blaze of disputed origin. In April in another case growing out of the same riots, 23 others were convicted. (See prior posting.) A total of 84 people have been convicted in 4 previous cases involving the riots in which 1,000 to 2,000 people-- mostly Muslims-- died.

State Department Releases 2011 International Religious Freedom Report

As reported by CNN, yesterday the State Department released its International Religious Freedom Report for 2011. Ambassador -at-Large for International Religious Freedom Suzan Johnson Cook provided a press briefing (full text) on the report. Secretary of State Hillary Clinton also spoke about the report at the Carnegie Endowment for International Peace (full text of remarks). The State Department presents the report in an interactive format on its website-- setting out the Executive Summary and providing links to either go to the full report for a specific country or build a report by individual topics across countries chosen by the online user. The Executive Summary says in part:

Governments restricted religious freedom in a variety of ways, including registration laws that favored state-sanctioned groups, blasphemy laws, and treatment of religious groups as security threats. The report focuses special attention on key trends such as the impact of political and demographic transitions on religious minorities, who tended to suffer the most in 2011; the effects of conflict on religious freedom; and the rising tide of anti-Semitism. Impacted groups, to name just a few, included Baha’is and Sufis in Iran; Christians in Egypt; Ahmadis in Indonesia and Pakistan; Muslims in a range of countries, including in Europe; Tibetan Buddhists, Christians, and Uighur Muslims in China; and Jews in many parts of the world.

The U.S. Commission on International Religious Freedom issued a release welcoming the State Department's report and urging it to move promptly to designate "countries of particular concern" for this year pursuant to the International Religious Freedom Act. It also urged the State Department to follow up its designation with "vigorous U.S. diplomatic activity."

Defendants In Amish Beard Cutting Assaults Reject Plea Bargain

In northern Ohio last year, 16 members of an Amish community were indicted for conspiracy to violate the federal Matthew Shepard-James Byrd Hate Crimes Prevention Act and the federal witness tampering law. (See prior posting.) The defendants, members of a break-away Amish group, are charged with assaulting other Amish and forcibly cutting their hair and beards. AP reported yesterday that the defendants have rejected the government's offer of a plea bargain that would have given many of them sentences of 2 to 3 years.  If convicted, they face sentences of 20 years or more in prison. Defendants claim the attacks involved issues of internal church discipline and not anti-Amish bias.

In Russian Court, Punk Rock Defendant Criticizes Church Support For Putin

As previously reported, in Russia earlier this year three members of a women's punk rock band,  calling itself Pussy Riot, were arrested after they entered a nearly empty Christ the Savior Cathedral and performed an obscene "punk prayer." Interfax yesterday reported on a court hearing for Maria Alyokhina, one of the defendants. Alyokhina told the court:

The indictment says that I committed hooliganism motivated by religious hatred and animosity and hatred toward Orthodox believers. This assertion is fundamentally unclear to me. The aim of our performance was to draw the attention of the Russian clergy and the prior of Christ the Savior Cathedral [to] Patriarch Kirill ... [and] his repeated public statements that the Orthodox believers must vote for Putin. I am an Orthodox believer but my political views are different.... As a representative of my generation, I have other questions about the relations between the church and the state, to which I sincerely want to get answers from Father Kirill and count on his wisdom. I thought that the church loves its children, but it turns out that there is a division here, and the church only loves those children who believe in Putin.

Pastor and Church Indicted Over Mock Kidnapping Of Youth Group Members

According to the Harrisburg (PA) Patriot-News, on Friday Dauphin County, Pennsylvania prosecutors charged a church and its youth pastor with false imprisonment and assault for a mock kidnapping they staged to teach teenagers about the dangers faced by some missionaries in carrying out their work. The Glad Tidings Assembly of God Church and its youth pastor Andrew Jordan arranged for four men to burst into the youth group meeting, one carrying a real, but unloaded, gun. The youths were forced into a van with pillow cases over their heads and driven across the parking lot to the pastor's house, where they were led to a frightening interrogation room and questioned for 30 seconds each before being released. The mother of a 14-year old girl who was taken in the mock exercise reported the matter to the police. The district attorney said that several of the children were terrorized by the experience. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Vijaykumar Shrikrushna Chowbe, Struggle to Combat ‘Graded Inequality’ in India: Conflict Without Consensus, (July 24, 2012).
• Ian C. Bartrum, The Ministerial Exception and the Limits of Religious Sovereignty, (Where Law and Religion Meet - The Online Journal of the Emory Center for the Study of Law and Religion blog, July 19, 2012).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (Northwestern University Law Review, Vol. 106, No. 2, p. 951, 2012).
• Craig A. Stern, The Heart of Mens Rea and the Insanity of Psychopaths, (July 26, 2012).

From SmartCILP:

• Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Michigan Journal of Race & Law 269-302 (2012).
• Symposium: The State of Church and State. Articles by Paul Cliteur, Aernout J. Nieuwenhuis, Yaniv Roznai, Serkan Yolcu, Augusto Zimmermann and Lael Daniel Weinberger. [Abstracts]. 10 I.Con: International Journal of Constitutional Law 127-241 (2012).
• The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance? Introduction by Nicholas P. Cafardi; articles by Bruce Ledewitz, Samuel J. Levine, Zachary R. Calo, Mark C. Rahdert and Richard Albert; response by Christopher C. Lund. 87 Chicago-Kent Law Review 707-897 (2012).

Indian Court: Child Marriage Ban Overrides Hindu Marriage Law

In Devi v. State, (Delhi H.C., July 27, 2012), a 3-judge panel of the Delhi High Court at New Delhi, India ruled that the Prohibition of Child Marriage Act takes precedence over the Hindu Marriage Act.  A Hindu marriage contracted with a female under 18 or a male under 21 is voidable at the option of the spouse who was a child at the time of the marriage, even though the marriage is not voidable under the Hindu Marriage Act. The Hindustan Times, reporting on the decision, says that it will also impact Muslim marriages. Under the Muslim Personal Law, the minimum age for marriage of either boys or girls is 15.

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.]