Consent Decree Issued On City's Display of Crosses

A consent decree (full text) has been issued in Freedom From Religion Foundation, Inc. v. Town of Whiteville, Tennessee, (WD TN, Aug. 8, 2012). The decree enjoins the town and its mayor from installing decorated or undecorated stand-alone crosses on public property. (The city had placed a cross at city hall and the mayor had installed one in front of his business.) The city also agreed not to replace one arm of a cross on the city's water tower that the city had removed when FFRF complained about the display. (See prior related posting.) FFRF issued a press release announcing the consent decree.

7th Circuit: City's Litigation Position On Proselytizers' Rights Is Not An Official Policy For Sec. 1983 Liability

In Teesdale v. City of Chicago, (7th Cir., Aug. 10, 2012), the U.S. 7th Circuit Court of Appeals dismissed a suit brought by a group from a nearby Baptist church that sought to proselytize for several years at the annual festival of Chicago's St. Symphorosa Catholic Church. In the case, the district court ruled that plaintiffs' 1st Amendment rights were threatened by an official city policy that St. Symphorosa could exclude plaintiffs from the public streets on which the festival was held. (See prior posting.) The 7th Circuit agreed that the city's position was unsupportable, but concluded that since it was merely a legal argument taken in litigation, the city's position does not amount to an "official policy" that gives rise to liability under 42 USC Sec. 1983:

We acknowledge the great importance that our society accords to freedom of speech and the free exercise of religion, and that the plaintiffs’ legitimate rights to such freedoms are to be respected. Like any other member of the public, the plaintiffs can exercise their rights at future public festivals, subject to reasonable time, place, and manner restrictions. But under the particular facts of this case, there is no evidence of an official City policy that threatens the plaintiffs’ First Amendment rights, giving rise to municipal liability and entitling the plaintiffs to a declaratory judgment. A mere legal pleading or a litigating position, with nothing more, is insufficient to constitute an official policy under Monell. Without such an official policy, these plaintiffs do not have standing to obtain the declaratory judgment.

Opinion Filed Supporting Injunction Against Public Feeding In Parks

As previously reported, last month a Pennsylvania federal district judge, from the bench, 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. The court has now filed extensive findings of fact and conclusions of law to support the issuance of the temporary injunction.  In Chosen 300 Ministries v. City of Philadelphia, (ED PA, Aug. 9, 2012), the court concluded that the churches' food-sharing program is an exercise of religion under the Pennsylvania Religious Freedom Protection Act and that the new regulation places a substantial burden on that exercise of religion.  It added:

Defendants argue that because the ban "imposes no restrictions upon praying or preaching or reading the Gospel or engaging with the homeless in [Fairmount Park]," the ban does not burden plaintiffs’ free exercise.... Essentially, defendants have assumed the authority to ascribe some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities.

The court also found that the regulation is not the least restrictive means to further a compelling governmental interest.  The court said:

There is some evidence that the true purpose behind the ban is to move plaintiffs' activities away from the many cultural attractions along the Parkway in an effort to hide the City’s homeless population away from tourist eyes. Defendants vehemently deny this and do not attempt to defend the ban on this ground. Nor could they, as discriminating against unpopular groups is not a legitimate government purpose, let alone a compelling one..... [D]efendants have failed to show by a preponderance of the evidence that the ban is the least restrictive means of furthering their objectives of ending homelessness, feeding the homeless indoors, providing social services to the homeless, increasing the dignity of the homeless, or reducing the trash burden along the Parkway.

President Hosts White House Iftar Dinner

The White House reports that last night President Obama hosted his 4th annual Iftar dinner-- the evening meal that breaks the Ramadan fast for Muslims. Among those attending the dinner, held in the State Dining Room at the White House, were members of Congress and of the diplomatic corps.  In his remarks (full text), the President said in part:

... Thomas Jefferson once held a sunset dinner here with an envoy from Tunisia -- perhaps the first Iftar at the White House, more than 200 years ago.  And some of you, as you arrived tonight, may have seen our special display, ... the Koran that belonged to Thomas Jefferson.  And that's a reminder, along with the generations of patriotic Muslims in America, that Islam -- like so many faiths -- is part of our national story....

In his remarks, the President emphasized important accomplishments of Muslim women, a number of whom were in attendance, including Huma Abedin (top aide to Secretary of State Hillary Clinton).

Another Catholic Diocese Files Suit Challenging ACA Contraceptive Services Mandate

On Thursday, the Catholic Diocese of Peoria, Illinois filed a lawsuit challenging the mandate issued under the Affordable Care Act requiring health insurance policies offered by employers to cover contraceptive services.  (Diocese press release).  Peoria Bishop Daniel Jenky said: "I have an obligation to protect the Church’s ability to freely practice our religion.... I cannot remain silent while the right of Catholics to practice our faith is being so gravely threatened."  Several other Illinois dioceses and Catholic Charities organizations have already filed a similar lawsuit. (See prior posting.) The federal government has proposed a compromise on the issue, but most Catholic organizations find it unacceptable. (See prior posting.)

New Jersey Supreme Court: "Deific Command" Jury Instruction Not Required In Case

In State v. Singleton, (NJ Sup. Ct., July 30, 2012), the New Jersey Supreme Court clarified when a modified insanity instruction to the jury must be given as to a defendant who claims he committed an illegal act because he was commanded to do so by God. In a case which generated 3 separate opinions from the 6 justices currently sitting on the court, the majority reversed the appeals court and held that the special charge (known in New Jersey as the Warlock charge) need not be given in this case. Justice LaVecchia wrote the opinion of the court (though it was joined only by Justice Wefing). As summarized by the court's syllabus:

Defendant is not entitled to a Worlock charge because the evidence does not clearly indicate that he failed to appreciate that killing Cazan was contrary to society’s morals. The Worlock variation is not available to all those who develop idiosyncratic moral compulsions from interpreting religious material....   Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God. That does not render his belief system in his "right to kill" certain sinners the equivalent of a command from God to kill.....   Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing. A Worlock charge is available only when a perceived divine command overcomes a defendant’s ability to be conscious of society’s law and mores disapproving of that command.

Justice Paterson, joined by Chief Justice Rabner concurred, arguing that the Court should reject past precedent which created special considerations when a defendant claimed he was acting under a deific command.  They reasoned that the concept "invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage."

Justice Hoens, joined by Justice Albin dissented, saying that "the majority has created a test so narrow as to be essentially non-existent."

DC High Court Says Pastor Can Pursue Breach of Contract Claim

In Second Episcopal District African Methodist Episcopal Church v. Prioleau, (DC Ct. App., Aug. 9, 2012), the District of Columbia's highest appeals court held that the 1st Amendment does not prevent a minister from pursuing a claim for breach of contract against her church.  At issue was the failure of the church to pay Rev. Deloris Prioleau $39,200 it owed her as salary under the contract covering her final year as the church's pastor. The court concluded that the case should be able to be resolved using neutral principles of law, but if at trial it turns out that matters of doctrinal interpretation or church governance are at issue, the court should then dismiss the case.

German Constitutional Court Says Civil Partners Must Get Same Treatment As Spouses In Tax Law

In In re the Constitutional Complaints of Mr. P, (Fed. Const. Ct. Germany, July 21, 2012), Germany's Constitutional Court held that the prior version of Germany's Gift and Inheritance Tax Act was unconstitutional under Germany's Basic Law because it treated same-sex civil partners differently than spouses in a traditional marriage. Deutsche Welle reported on the decision.

Pagan Group's Property Not Entitled To Tax Exemption

In Maetreum of Cybele, Magna Mater, Inc. v. McCoy, (S. Ct. NY Albany Co., Aug. 2, 2012), a New York state trial court concluded that property owned by the Cybeline Revival, a religious pagan faith, was not entitled to a tax exemption because the organization failed to show that the property was used primarily in furtherance of the organization's religious purposes. Instead the primary use was to provide cooperative housing for the priestesses and their guests.  The religious activities that occurred on the property were merely incidental to its use as a residence. The court added that it had no reason to doubt the sincerity of the religious and spiritual beliefs of Cybeline Revival adherents.  Reporting on the decision, the Watershed Post says that the Maetreum will appeal and seek protection from foreclosure that is threatened by the county in order to recoup back taxes.

9th Circuit: Sovereign Immunity Protects U.S. In FISA Suit By Islamic Charity

In a decision handed down on Tuesday, the U.S. 9th Circuit Court of Appeals dismissed a claim by an Islamic Foundation for damages from alleged warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act.  In Al-Haramain Islamic Foundation v. Obama,  (9th Cir., Aug. 7, 2012), the court held that  the United States has not waived its sovereign immunity for suits under 18 USC Sec. 1810 for wrongful collection of information, even though it has done so as to suits under other portions of FISA for wrongful use and disclosure of the information.  The court also held that plaintiffs had made insufficient allegations against FBI director Robert Mueller to find personal liability on his part for the surveillance.  The result of the court's holding was the reversal of the trial court' award of $2.5 million in attorneys' fees, as well as its award of comparatively small amounts in statutory damages. The Recorder reports on the decision.

Official May Testify On Santa Muerte Connection To Drug Trade

In United States v. Goxcon-Chagal, (D NM, Aug. 5, 2012), a New Mexico federal district court rejected challenges to proposed testimony by a U.S. Marshall that Santa Muerte materials are tools of the trade of drug traffickers. In addition to finding that the testimony is admissible under the Federal Rules of Evidence, the court found no First Amendment problem with the proposed testimony. In a 67-page opinion, the court concluded:

Almonte’s testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury.  Almonte’s proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury.  Almonte’s proposed testimony is not improper profile evidence. Neither the Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte’s testimony, the Court will not exclude his testimony under rule 403....

While the religion associated with Santa Muerte is the only one that is at issue, the introduction of the evidence does not seek to punish Medina-Copete for worshiping Santa Muerte, but only for having drugs in her possession.  While worshipers of Santa Muerte are at a disadvantage because they may be suspected of and successfully prosecuted for drug activity more than nonworshipers of Santa Muerte, the presence of prayers and statutes is not a necessary or sufficient condition for a criminal conviction.  The Court has difficulty saying that the evidence violates the non-preferential principle of the Establishment Clause if the religion is neither a necessary or sufficient reason for a criminal conviction.

Federal Court Upholds Hawaii's Ban On Same-Sex Marriage

In Jackson v. Abercrombie, (D HI, Aug. 8, 2012), an Hawaii federal district court, in a 120-page opinion, upheld as constitutional Hawaii's laws that bar same-sex marriage.  The court held that rational basis review applies in the federal equal protection and due process challenges to the state constitutional and statutory provisions involved.  The court explained:

The right to marry someone of the samesex, is not "objectively, deeply rooted in this Nation’s history and tradition" and thus it is not a fundamental right..... Hawaii’s marriage laws do not treat males and females differently as a class; consequently, the laws do not discriminate on the basis of gender.  The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation....

[T]he legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently [sic.] conceived outside of a stable, long-term relationship.... The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex.

Hawaii has enacted a law providing for civil unions that give partners all the same state legal rights as married couples. AP reports on the decision. Alliance Defending Freedom links to the pleadings in the case.

American Muslims and Copts Urge Egypt To Adopt Religious Equality and Secular Legal System In New Constitution

RNS reports on a letter released Tuesday from Muslim and Coptic Christian leaders in the United States calling on Egypt's new government that is drafting a constitution for the country to "recognize the equality of all Egyptians and to reject any language that would discriminate against any citizen of Egypt on the basis of that citizen's religion or gender." The letter also urged Egyptians to reject language that would describe Shariah as the source of the country's laws. Among those signing the letter were U.S. Rep. Keith Ellison;  Imam Mohamed Magid, president of the Islamic Society of North America; and Rev. Hegomen Moises Bogdady and the Rev. Michael Sorial, priests with the Coptic Orthodox Archdiocese of North America. The joint letter was sponsored by the Arab American Institute.

Suit Challenges Portion of Newly Approved Missouri Constitutional Amendment

Only one day after Missouri voters approved a state constitutional amendment providing extensive protections for religious expression (see prior posting), the ACLU announced the filing of a class action in federal district court challenging on federal constitutional grounds one aspect of the amendment.  A portion of the amendment provides that  the religious freedom rights of prisoners in state or local custody will be limited to the rights granted by federal law.  More extensive religious liberty protections under the state constitution will not apply to prisoners.  The class action complaint (full text) in Qandah v. Lombardi, (WD MO, filed 8/8/2012) contends that  this withdraws existing state protections of religious liberty from prisoners in violation of the federal Establishment Clause and Equal Protection Clause. It alleges: "The challenged provision has the principal or primary effect of inhibiting religion among prisoners in Missouri."

8th Circuit Rejects Narrow Challenge To Hate Crimes Law

In United States v. Maybee, (8th Cir., Aug. 6, 2012), the U.S. 8th Circuit Court of Appeals upheld against a narrow constitutional attack the constitutionality of 18 USC 249(a)(1), one of the provisions of the Shepard-Byrd Hate Crimes Prevention Act. The section prohibits causing bodily injury to a person because of the person's actual or perceived race, color, religion, or national origin. The case involved an assault motivated by race and national origin.  According to the court, both parties agreed that the constitutionality of the section depends on whether it is a proper exercise of Congress power under Section 2 of the 13th Amendment to ban "badges and incidents of slavery."  The court rejected the claim that to be constitutional the section needed to not only require racial motivation, but also require that the assault be motivated by the victim’s enjoyment of a public benefit. AP reports on the decision. [Thanks to Michael Lieberman for the lead.]

Missouri Voters Overwhelmingly Approve Religious Expression Amendment

Missouri voters yesterday approved state Constitutional Amendment 2 by a vote of 82.8% in favor and 17.2% against. (Official results.) The measure was described briefly on the ballot:

Shall the Missouri Constitution be amended to ensure: That the right of Missouri citizens to express their religious beliefs shall not be infringed; That school children have the right to pray and acknowledge God voluntarily in their schools; and That all public schools shall display the Bill of Rights of the United States Constitution

The actual language added by the constitutional amendment is extensive. Here it is, slightly edited, and broken down by subject matter headings that I have inserted:

Anti-Establishment and Free Exercise Provisions:

• neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed;
• the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly;

Prayer On Public Property and Legislative Invocations:

• citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances;
• the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies;

Protection of Students' Religious Expression:

• students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work;
• no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs;
• the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances;

School Display of Bill of Rights:

• to emphasize the right to free exercise of religious expression, all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States;

Prisoners Get No Additional Religious Rights:

• this section shall not be construed to expand the rights of prisoners in state or local custody beyond those afforded by the laws of the United States.

The St. Louis Post-Dispatch reports on the results.

Norwegian Children's Ombudsman Urges End To Ritual Circumcision of Boys

JTA reported Monday that Norway's ombudsman for children has proposed that Jews and Muslims replace circumcision of boys with a symbolic non-surgical ritual. Saying that "Muslim and Jewish children are entitled to the same protection as all other children," Dr. Anne Lindboe told a Norwegian paper last month that circumcision in boys is a violation of their right to make decisions about their own body. The president of Oslo's Jewish community responded that the mandate of Norway’s children’s ombudsman does not extend to devising Jewish rituals.

Lawsuit Challenges Proposed Eruv As Establishment Clause Violation

Last week, a group opposed to the creation of an eruv by Orthodox Jewish residents of the Village of Westhampton, New York filed suit in federal district court seeking a declaratory judgment that use of public property, including utility poles, to create a symbolic religious boundary violates the Establishment Clause. The suit also seeks an injunction against construction of the eruv, which is comprised largely of plastic strips running up utility poles to intersect with existing wires that create the symbolic boundary. The complaint (full text) in Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, (ED NY, filed 7/30/2012), alleges that:

The eruv ... will mark certain wholly public spaces within the Village with religious significance. Indeed, it will invest a large portion of the Village with a narrow and parochial religious function.... [I]t will be a constant ... reminder to the community at large, that the secular public spaces of the Village have been transformed for religious use and identity; to the non-Jewish residents, that the Village and LIPA have given preferred status to the Jewish religion as the only faith to be permitted to permanently affix religious symbols to utility poles ... or to physically demarcate certain public spaces with particular religious significance; and to large portions of the Jewish community... that one particular form of Judaism has been preferred and endorsed by the Village over another.

Newsday on Sunday reported on the filing of the lawsuit. [Thanks to Pew Forum for the lead.]

American Bar Association Condemns Religious Profiling

At its annual meeting yesterday, the American Bar Association House of Delegates voted to expand its policy against racial and ethnic profiling by police to also condemn profiling on the basis of actual or perceived religious affiliation. (ABA Press Release). Resolution 116 (full text) still permits police to make mention of traditional religious dress when issuing a description of a suspect. A report (full text Word.doc) accompanying the text of the resolution says that, since 9/11, the FBI, customs and immigration enforcement, and local police are all profiling Muslims.

Murfreesboro Mosque Finally Gets Occupancy Permit

In Rutherford County, Tennessee yesterday, county officials finally issued a temporary 30-day occupancy permit to the controversial Murfreesboro Islamic Center on which construction has just been completed.  Landscaping must be finished before a permanent permit is issued. The county's action comes after a federal court last month ordered officials to expedite issuance of the permit. (See prior posting.) As reported by CNN, the permit comes in the wake of 2 years of litigation, anti-Muslim vandalism and an arson attack. This will allow the new mosque to hold its first service before the end of the holy month of Ramadan.