Fired Muslim Employee Sues Disney For Barring Her Hijab

The ACLU of Southern California announced yesterday that it has filed suit in a California federal district court against Walt Disney Corp. on behalf of a former employee who alleges religious harassment and refusal to accommodate her Muslim religious practice of wearing a hijab (headscarf).  The complaint (full text) in Boudlal v. Walt Disney Corp., (CD CA, filed 8/13/2012), alleges claims under Title VII of the 1964 federal Civil Rights Act, California's Fair Employment and Housing Act, and common law claims for wrongful termination, negligent retention and supervision and intentional infliction of emotional distress. The suit claims that 28-year old Imane Boudlal-- who worked at Storytellers Café at Disney’s California Adventure-- was told that her hijab would violate the Disney "look" policy for employees. She offered to wear a scarf with a Disney logo to match her uniform.  However management insisted that she either wear a large fedora on top of her hijab or work in a back area out of view of customers. She refused and was fired. The suit also alleges various incidents of offensive anti-Muslim and anti-Arab comments by Boudlal's co-workers.

Arizona Court Dismisses Challenge To State Day of Prayer For Lack of Standing

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ Super. Ct., Aug. 7, 2012), an Arizona trial court judge dismissed a constitutional challenge to Arizona Governor Jan Brewer's proclamation of an annual Arizona Day of Prayer.  According to the court:

In the absence of a particularized and concrete injury suffered by Plaintiffs, their claims cannot go forward. Plaintiffs have not alleged that they filed their claims in their capacity as taxpayers, nor have they shown a direct injury, pecuniary or otherwise.

Gov. Brewer issued a statement (full text) applauding the decision which she called "little more than another sad attempt to stifle an American tradition."

Saudi Arabia Building All-Women's Industrial City To Comply With Sharia

In order to both comply with strict interpretations of Sharia law and also increase participation of women in its work force, Saudi Arabia plans to build an industrial city for female workers.  Today's Los Angeles Times and International Business Times report that the city, which will be built within Hofuf, will have sections and production halls reserved for women within factories, and will be located near residential neighborhoods to facilitate women getting from home to work. The new city is expected to attract the equivalent of $133.3 million (US) in investments and create 5,000 jobs in the textiles, pharmaceuticals and food processing industries. Additional similar cities are planned.

Advocacy Group Sends US Schools Publication On Right of Religious Expression

Liberty Counsel announced last week that it is sending a copy of its publication Patriot's Handbook of Religious Freedom in Public Schools to every school in the United States. It says it is completing delivery of 99,750 copies around the country. According to the press release: "This booklet clarifies the rights of students to pray, form Bible clubs, and engage in religious expression in public schools, including holiday celebrations and the rights of teachers, parents, and guardians." According to God Discussion, Matt Staver, chairman of Liberty Counsel, says that he believes public school teachers lack information on religious freedoms.

Recent Articles and Forthcoming Book of Interest

From SSRN:

• David R. Upham, Pope Pius Xi’S Extraordinary — But Undeserved — Praise of the American Supreme Court, (July 31, 2012).
• Lucas Swaine, Freedom of Thought, Religion, and Liberal Neutrality, (August 4, 2012).
• C.G. Bateman, Sovereignty's Missing Moral Imperative, (International Zeitschrift 8.2 (May 2012): 30-41).
• Nelson Tebbe, Government Endorsement and Disparagement, (Brooklyn Law School, Legal Studies Paper No. 287, Aug. 6, 2012).
• Meghan J. Ryan, Death and Rehabilitation, (SMU Dedman School of Law Legal Studies Research Paper, Aug. 11, 2012).
• Carlos Martínez de Aguirre, Is 'Living Together, Loving Each Other' Enough for Law? (Reflections on Some 'Brave New Families'), (International Journal of the Jurisprudence of the Family, Forthcoming).
• Jeremiah Egger, Glucksberg, Lawrence, and the Decline of Loving's Marriage Precedent, (Virginia Law Review, Vol. 98, December 2012, Forthcoming).
• Ursula Hackett, Republicanism, Catholicism and the West: Explaining the Strength of Religious School Aid Prohibitions, (APSA 2012 Annual Meeting Paper).
• Farrah Ahmed and S. Luk, How Religious Arbitration Could Enhance Personal Autonomy, (Oxford Journal of Law and Religion, Forthcoming).
• Ebrahim Moosa, Ahsan Arozullah and Aasim I. Padela, Brain Death in Islamic Ethico-Legal Deliberation: Challenges for Applied Islamic Bioethics, (December 13, 2011).
• Steven F. Friedell, The Recent Transformation of Medical Liability in Jewish Law, (August 3, 2012).

Forthcoming book:

• Jacques Berlinerblau, How to Be Secular: A Call to Arms for Religious Freedom, (Houghton Mifflin Harcourt, September 11, 2012).

Nominations For ABA Journal's Top 100 Legal Blogs Now Open

The American Bar Association Journal announced last week that it is working on its annual list of the 100 best legal blogs, and invites blog readers to use the form at this link:

to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit. Friend-of-the-blawg briefs are due no later than Sept. 7, 2012.

The ABA has also urged us bloggers to tell readers about the opportunity to send messages on behalf of their favorite legal blogs. Religion Clause has made the top 100 list four out of the last five years. I invite any readers who think it belongs there again-- or who have a different favorite legal blog-- to participate in the ABA's selection process.

Recent Prisoner Free Exercise Cases

In Hennis v. Tedrow, (3d Cir., Aug. 7, 2012), the 3rd Circuit upheld dismissal of an inmate's claim that his rights were violated when he was told to cut his dreadlocks (but never in fact forced to do so) and was not provided his religious vegetarian meals during a prison lock down.

In Burton v. Clark, 2012 U.S. Dist. LEXIS 109106 (ED CA, Aug. 2, 2012), a California federal magistrate judge recommended dismissing free exercise and RLUIPA claims by an inmate whose request for a special religious diet was refused.  He sought a vegetarian diet free of excess beans, butter, margarine, peanut butter, and cheese, and claimed that the food needed to be blessed by a rabbi to make it kosher.

In Hull v. Cox, 2012 U.S. Dist. LEXIS 109272 (D NV, July 27, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 109273, June 6, 2012) and dismissed for failure to exhaust administrative remedies an inmate's complaint that prison officials have refused to recognize his Community of Christ religion and have not scheduled a time slot for its services.

In Gibson v. Campbell, 2012 U.S. Dist. LEXIS 111050 (D CO, Aug. 8, 2012), a Colorado federal district court agreed with a federal magistrate judge that an inmate's free exercise rights weer not infringed when authorities prohibited him from having an audio book player in his cell.

In Lemcool v. Poole, 2012 U.S. Dist. LEXIS 111131 (ND FL, Aug. 8, 2012), a Florida federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 111132, July 9, 2012), and dismissed as moot a Wiccan inmate's complaint about the inability to schedule Sabbat and Esbats and holy day worship. A change in policy now permits inmates to engage in religious exercise under staff supervision, even if an outside volunteer is unable to be present.

In Chance v. TDCJ, 2012 U.S. Dist. LEXIS 111214 (ED TX, Aug. 8, 2012), a federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 111230, July 9, 2012) and dismissed complaints of a Native American inmate regarding the adequacy of Native American religious ceremonies that are offered.  He objected to the lack of weekly group teaching ceremonies, and complained that smudging and pipe ceremonies are held only monthly with only the chaplain smoking the pipe and only water smudging. He was also denied the right to carry a lock of his deceased parents' hair in a pouch.

In Wesley v. City of New York, (SD NY, Aug. 10, 2012), a New York federal district court rejected a Muslim inmate's claim that he should be furnished Halal food prepared in accordance with his interpretation of Halal. He objected to the food that the Department of Corrections served under its religious meal program because Halal food trays were washed together with non-Halal trays.

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.