Friday, August 31, 2012

Plaintiffs Have Standing To Challenge Tax Exemption For Parsonage Allowance

In Freedom From Religion Foundation, Inc. v. United States, (WD WI, Aug. 29. 2012), a Wisconsin federal district court held that officers of the Freedom From Religion Foundation have standing to bring Establishment Clause and equal protection challenges to the constitutionality of Internal Revenue Code Sec. 107 that excludes from taxable income the parsonage allowance or the rental value of a home provided to members of the clergy. The court found that plaintiffs have alleged "injury in fact" because they contend that they receive a housing allowance from their employer and do not receive the same exemption from taxation for the amounts they are given. The court said in part:
plaintiffs' allegation of discriminatory treatment is distinct from a simple disagreement with the government's conduct.... I disagree with defendant that plaintiffs lack standing because they have a "generalized grievance." The Supreme Court has rejected the view that a plaintiff does not suffer an injury in fact simply because it is "widely shared.".... 
More important, defendant cites no statute that prohibits plaintiffs from bringing this action. As defendant acknowledges, the Anti-Injunction Act, 26 U.S.C. § 7421, bars suits that seek to  enjoin the government from assessing or collecting a tax, not from eliminating an exemption, so it does not apply to this case. 
(See prior related posting.) [Thanks to Bob Ritter for the lead.]

Thursday, August 30, 2012

8th Circuit: Excluding Good News Club Was Unconstitutional Viewpoint Discrimination

In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (8th Cir., Aug. 29, 2012), the U.S. 8th Circuit Court of Appeals held that the district court abused its discretion in denying a preliminary injunction sought by plaintiff to keep its Good News Clubs as part of Minneapolis Jenny Lind Elementary School's after school program. The court said:
We agree with CEF's assertion that  the district has engaged in viewpoint discrimination by ousting CEF from the after-school program.... [T]he primary difference between CEF and other groups participating in the after-school program, all of which provide the enrichment programming ... is that "prayer and proselytizing" take place during CEF's meetings....
The district court also found that the district had a compelling interest in excluding CEF from the after-school program resources in order to avoid an Establishment Clause violation.... The compelling interest in avoiding an Establishment Clause violation, according to the district, justifies any possible viewpoint discrimination. We disagree....
... [W]hether the content of CEF's GNC meetings was private speech or school-sponsored speech is the key to analyzing the district's Establishment Clause defense to its practice of viewpoint discrimination. We find erroneous the district court's conclusion that the GNC's message was school or district sponsored when it was part of the after-school program.

Murfreesboro Mosque Neighbors Permitted To Intervene In Justice Department's RLUIPA Suit

In United States v. Rutherford County, Tennessee, (MD TN, Aug. 29, 2012), a Tennessee federal district court permitted neighbors of the Islamic Center of Murfreesboro to intervene in a RLUIPA lawsuit brought by the Justice Department.  In earlier proceedings in the case, the United State obtained a temporary restraining order requiring county officials to expedite the issuance of an occupancy permit for the controversial mosque in Murfreesboro.  (See prior posting). At issue is a decision by a state court that the county violated the state's Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. The court held that intervenors will be limited to presenting their position on whether the Chancery Court Orders constitute a land use regulation under RLUIPA and, if so, whether they impose a substantial burden on the Islamic Center's free exercise of religion. Intervenors will not be able to raise issues relating to their allegation of connections between two mosque board members and Hamas. The Tennessean reports on the decision.

VP Nominee Ryan Impacted By His Catholic Beliefs

Paul Ryan last night accepted the Republican nomination for vice-president. (Washington Post.) Earlier this month, the Wall Street Journal reported on the impact of Ryan's Catholic religious faith on his political and policy views:
... Ryan is a practicing Catholic who attends church regularly, takes part in a weekly prayer group on Capitol Hill and flies home on Thursday nights so he can take his children to their Catholic school the next morning. And when he debates Vice President Joe Biden this fall, each party will be represented by a practicing Catholic.
But Catholicism also grounds his thinking about politics and the basic relationship between the individual and the state. He has invoked a principle called "subsidiarity" in justifying his view that people are more apt to flourish under government that is limited in its size and reach. And he spoke out amid the church leadership's fight with the Obama administration over its mandate that employers, including Catholic institutions, be required to provide contraception coverage in their insurance plans.
Mr. Ryan's use of Catholic teachings has drawn criticism by others in the church who believe he is selectively interpreting religious doctrine to make a case for market capitalism.

Plaintiffs Denied Preliminary Injunction, But May Develop As-Applied Challenge To Legislative Prayer

In Jones v. Hamilton County, Tennessee, (ED TN, Aug. 29, 2012), a Tennessee federal district court refused to issue a preliminary injunction in a facial challenge to the policy of Hamilton County of opening its Commission meetings with a prayer. However the court permitted plaintiffs to proceed to develop a record as to whether the policy as applied violates the Establishment Clause. Plaintiffs objected to Christian prayers offered by various speakers under the county's prior informal prayer policy. Shortly after this lawsuit was filed, the county adopted a formal invocation policy providing for prayers to be offered by clergy from any of the religious congregations in the county.  WRCB-TV reports on the decision.

New Mexico Clarifies Vaccination Exemption Covers Only Religious, Not Philosophical, Objections

New Mexico Statutes 24-5-3 provides an exemption for school children from immunization requirements if the child's parents file an affidavit that the child's "religious beliefs, held either individually or jointly with others, do not permit the administration of vaccine or other immunizing agent."  According to Tuesday's Santa Fe New Mexican, the New Mexico Department of Health has changed the form that parents must file to make clear that philosophical, rather than religious, beliefs are not a basis for exemption.  The new form specifically requires parents to state their religious belief.  Officials have become concerned over rising exemption rates and an increase in vaccine-preventable disease.

Republican 2012 Platform: Numerous Provisions On Religious Freedom

CNA reports that the the 2012 Republican Platform (full text), adopted Tuesday by the national convention, contains strong planks on religious freedom.  Among its provisions are ones calling for defending traditional marriage against an activist judiciary and calling for a constitutional amendment defining marriage as the union of one man and one woman.

A section titled "The First Amendment:The Foresight of Our Founders to Protect Religious Freedom" provides in part:
The first provision of the First Amendment concerns freedom of religion....That assurance has never been more needed than it is today, as liberal elites try to drive religious beliefs—and religious believers—out of the public square.... 
The most offensive instance of this war on religion has been the current Administration’s attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion. This forcible secularization of religious and religiously affiliated organizations, including faith-based hospitals and colleges, has been in tandem with the current Administration’s audacity in declaring which faith-related activities are, or are not, protected by the First Amendment.... 
The section goes on to support public display of the Ten Commandments and the right of students to engage in prayer at public school events. It also supports
the right of faith-based organizations to participate fully in public programs without renouncing their beliefs, removing religious symbols,or submitting to government-imposed hiring practices. We oppose government discrimination against businesses due to religious views. We support the First Amendment right of freedom of association of the Boy Scouts of America and other service organizations whose values are under assault and condemn the State blacklisting of religious groups which decline to arrange adoptions by same-sex couples. We condemn the hate campaigns, threats of violence, and vandalism by proponents of same-sex marriage against advocates of traditional marriage and call for a federal investigation into attempts to deny religious believers their civil rights.
A section on The Sanctity and Dignity of Human Life provides in part:
We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children. We oppose using public revenues to promote or perform abortion or fund organizations which perform or advocate it and will not fund or subsidize health care which includes abortion coverage. We support the appointment of  judges who respect traditional family values and the sanctity of innocent human life. We oppose the non-consensual withholding or withdrawal of care or treatment, including food and water, from people with disabilities, including newborns, as well as the elderly and infirm, just as we oppose active and passive euthanasia and assisted suicide.
... We urge Congress to strengthen the Born Alive Infant Protection Act by enacting appropriate civil and criminal penalties on healthcare providers who fail to provide treatment and care to an infant who survives an abortion, including early induction delivery where the death of the infant is intended. We call for legislation to ban sex-selective abortions – gender discrimination in its most lethal form—and to protect from abortion unborn children who are capable of feeling pain.... We call for a ban on the use of body parts from aborted fetuses for research. We support and applaud adult stem cell research to develop lifesaving therapies, and we oppose the killing of embryos for their stem cells. We oppose federal funding of embryonic stem cell research.
The platform's section on health care includes a section on "Protecting Individual Conscience in Healthcare." The Platform section on prison reform includes a call for government to "work with faith-based institutions that have proven track records in diverting young and first time, non-violent offenders from criminal careers..." A section on human rights supports the U.S. Commission on International Religious Freedom and accuses the current administration of shunting it aside at a time that its voice needs to be heard more than ever. It pledges that: "A Republican Administration will return the advocacy of religious liberty to a central place in our diplomacy."

The Platform's section on foreign aid includes the following:
The effectiveness of our foreign aid has been limited by the cultural agenda of the current Administration, attempting to impose on foreign countries, especially the peoples of Africa, legalized abortion and the homosexual rights agenda. At the same time, faith-based groups—the sector that has had the best track record in promoting lasting development—have been excluded from grants because they will not conform to the administration’s social agenda.

Feminist Group Sues Israeli Radio Station For Discrimination

In Israel, Kolech, an Orthodox Jewish feminist organization, has filed a $26 million class action discrimination lawsuit against Kol Berama, a strictly Orthodox Jewish (haredi) radio station. As reported by JTA, the suit alleges that the station only employs male interviewers and will not conduct live interviews with women. A woman who wishes to be heard on air is asked to fax her remarks and they are then read by a male broadcaster. Earlier this year, Israel's Second Authority for Television & Radio ordered the station to interview women who hold official positions or are experts in their field, and to allow women to speak on the air for four hours per week.  Apparently the station has not complied.

Wednesday, August 29, 2012

Canadian Parents Challenge Refusal of School To Distribute Atheist Publication

CNews reported  yesterday that in the Canadian province of Ontario, Rene and Anna Chouinard have been granted a hearing before the Human Rights Tribunal of Ontario on their complaint that they were not given equal treatment, as guaranteed by the Ontario Human Rights Code, when they were refused permission to have an atheist publication distributed to 5th grade students.  The school district permits distribution of Gideon Bibles, but the school refused to allow distribution of the book "Just Pretend: A Free Thought Book for Children." The school board denies that religious discrimination is involved. Instead, they say, the book contains material that is inappropriate for distribution. [Thanks to Scott Mange for the lead.]

Orthodox Christian Activists Physically Attack Russian Erotic Art Museum

According to Interfax today, in Russia, Orthodox Christian activists have physically attacked Moscow's Erotic Art Museum on the Arbat.  A statement by museum director Alexander Donskoy said in part:
Today the Orthodox militants punish us for our support for Pussy Riot, send us death threats and rip clothes off ordinary passers-by, and tomorrow they will start destroying churches of other religious denominations and slay atheists. We ask the investigative authorities and personally our Constitution guarantor Vladimir Putin to stop this movement of Orthodox militants that is loathed in a secular state. We also hope that Patriarch Kirill will assess the actions of the people posing as Orthodox believers as they damage the perception of church as a bright spiritual institution.

Military Reports On Details of Qur'an Mishandling In Afghanistan

According to American Forces Press Service, on Monday the U.S. Central Command released the results of an investigation into a February incident involving the mishandling of some 1200 religious texts (including Qur'ans) that were removed from a detention facility in Parwan, Afghanistan and taken to Bagram Air Field to a fire pit used to burn garbage. The removal was prompted by a belief that extremist were using the books to exchange messages  The military concluded that no malicious intent was involved.  AP details the main findings of the new report:
[T]he burning disaster resulted from miscommunications, ignorance about the handling of Korans and the failure to provide clear guidance. Specifically, the report found that the service members relied too heavily on one linguist's conclusion that the Korans, which also had militant messages in them, were rewritten versions that were extremist and would not be considered real Korans. ... [A]lso ... service members mistakenly interpreted a commander's order to get rid of the books as permission to take them to the burn pit.... [O]nly one of the service members assigned to transport the books to the burn pit knew they were carrying religious books.
Six soldiers and three marines involved received administrative punishments. Disciplinary charges against one Navy sailor were dismissed. God and Country blog has further details.

Tuesday, August 28, 2012

Diverse Group of Clergy Will Lead Invocations and Benedictions At Republican Convention

The Republican National Convention got under way this afternoon.  Among other issues posed by the storm-related rescheduling was the rescheduling of clergy to deliver the opening invocation and closing benediction each of the 3 days. Here, as also reported by JTA, is the line-up of clergy:
  • Tuesday invocation-- Rabbi Meir Soloveichik (Director of the Straus Center for Torah and Western Thought at Yeshiva University)
  • Tuesday benediction-- Sammy Rodriguez (President of The National Hispanic Christian Leadership Conference)
  • Wednesday invocation-- Ishwar Singh (head of the Sikh Society of Central Florida)
  • Wednesday benediction-- Archbishop Demetrios (Primate of the Greek Orthodox Church in America)
  • Thursday invocation-- Ken and Priscilla Hutchins (President of the Boston Mormon temple and his wife)
  • Thursday benediction-- Archbishop Timothy M. Dolan (President of the U.S. Conference of Catholic Bishops)

Pakistan's Former Religious Affairs Head Released On Bail In Hajj Corruption Case

In Pakistan, according to yesterday's Express Tribune, former federal minister for religious affairs Hamid Saeed Kazmi, one of 3 officials criminally charged with corruption over the handling of housing in Saudi Arabia for Pakistani Hajj pilgrims in 2010, has been released from jail on bond. Kazmi had been in the Adiala Jail for 17 months awaiting trial. He was ordered by the court to post 2 surety bonds of RS100,000 ($1050 US) each. (See prior related posting.)

Military Appeals Court Says Ft. Hood Shooter's Appeal As To Beard Is Premature

The U.S. Court of Appeals for the Armed Forces (CAAF) yesterday lifted its previously imposed stay on the court martial proceedings of Fort Hood mass shooter Maj. Nidal Hasan.  The stay was imposed while the appeals court considered whether or not the presiding judge in the military trial can order Hasan, who has grown a beard for religious reasons, to be forcibly shaved. (See prior posting.) Now, as reported by Austin Legal, the CAAF decided that Hasan's appeal is premature because the trial judge has not yet formally ordered him to be shaved-- though Col. Gregory Gross who is conducting the court martial proceedings has repeated said that he will issue such an order. The CAAF's decision provides that, if Gross does issue the order, he is to spell out whether the Religious Freedom Restoration Act applies and explain why forcible shaving is the least restrictive means to further a compelling governmental interest. Gross' order could then be appealed to the Army Court of Criminal Appeals, the intermediate appellate court in the military system.

Contraceptive Mandate Challenge Dismissed For Lack of Standing and Ripeness

In Wheaton College v. Sebelius, (D DC, Aug. 24,2012), the D.C. federal district court dismissed for lack of standing and ripeness a challenge by Wheaton College to the mandate issued under the Affordable Care Act requiring group health insurance policies to cover contraceptive services for women.  Wheaton College claimed that offering Plan B and Ella emergency contraception violates its religious beliefs. (See prior posting.)  Because the Department of Health and Human Services has announced a one-year enforcement safe harbor for non-profit groups whose religious beliefs are violated by the mandate, the court concluded that Wheaton does not face imminent enforcement action.

Monday, August 27, 2012

Church Challenges Ordinance Limiting Movable Message Displays

The Church of the Good Shepherd- United Methodist, in Vienna, Virginia, earlier this month filed a lawsuit against the Fairfax (VA) Board of County Supervisors challenging the application of the county's sign ordinance to the church's new $37,000 sign. According to yesterday's Washington Examiner, the county objected to the sign that displays movable messages because the county ordinance only allows movable copy signs to change messages two times in 24 hours.  The church's sign displayed 3 different messages. The church's lawsuit claims the ordinance violates its free speech and free exercise rights as well as the Religious Land Use and Institutionalized Persons Act.

Court Rejects Religious Accommodation Complaint By Orthodox Jewish Federal Employee

In Marmulszteyn v, Napolitano, (ED NY, Aug. 22, 2912), a New York federal district court dismissed a Title VII religious accommodation lawsuit brought by an Jewish man who claimed that U.S. Customs and Border Protection failed to reasonably accommodate his need not to work on Saturdays while he was employed as a Customs and BorderProtection Officer.  The court found that no adverse employment action had been taken because of plaintiff's refusal to work a Saturday shift.  Instead it allowed him to swap shifts with others.  Further, he was offered a reasonable accommodation-- a weekend overnight shift in place of his Saturday morning assignment. His claim that he was the victim of religious discrimination because he did not receive a permanent religious exemption of the sort some other employees enjoyed was rejected. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, August 26, 2012

Recent Prisoner Free Exercise Cases

In Williams v. Cate, 2012 U.S. Dist. LEXIS 116472 (ED CA, Aug. 17, 2012), a California federal magistrate judge recommended dismissing claims by an inmate of the House of Yahweh faith that he was denied a kosher diet, not given funding to purchase religious materials, and that defendants spread false propaganda and denied worship services for House of Yahweh.

In Bell v. Parsons, 2012 U.S. Dist. LEXIS 117800 (WD NC, Aug. 21, 2012), a North Carolina federal district court ordered a Muslim prisoner who complained that his religious items were confiscated from his cell in a prison shake down during Ramadan to show he had exhausted his administrative remedies, or else face dismissal of his lawsuit.

In Bryant v. Johnson, 2012 U.S. Dist. LEXIS 118173 (WD VA, Aug. 21, 2012), a Virginia federal district court dismissed objections by a Muslim inmate that prison officials would not extend the Ramadan feeding policy to a fast outside of Ramadan that plaintiff alleged he undertook for religious reasons. Plaintiff skipped 17 consecutive meals and then resisted efforts by prison officials to weigh him. The court was not convinced that the fast was religiously motivated. Prison officials saw it as a hunger strike.

In Sousa v. Wegman, 2012 U.S. Dist. LEXIS 118421 (ED CA, Aug. 20, 2012), a California federal magistrate judge dismissed with leave to amend

Malik v. City of New York, 2012 U.S. Dist. LEXIS 118358 (SD NY, Aug. 15, 2012), a New York federal magistrate judge recommended allowing an inmate to proceed with claims that correctional officers ripped up and destroyed his Qur'an.

In Nance v. Miser, 2012 U.S. Dist. LEXIS 119420 (D AZ, Aug. 23, 2012), an Arizona federal district court  permitted a Muslim inmate to proceed with his complaint that he was denied a Halal diet and a shaving waiver.

In Strange v. Commonwealth of Kentucky, 2012 U.S. Dist. LEXIS 119599 (WD KY, Aug. 23, 2012), a Kentucky federal district court allowed a pre-trial detainee who says he is Jewish to proceed with his claim that he is not permitted to have a prayer rug, a "yamike", read the Torah, attend worship, or practice his religion, and that there are no rabbis at the jail.

In Alverson v. Allen, 2012 U.S. Dist. LEXIS 119149 (MD AL, Aug. 23, 2012), an Alabama federal magistrate judge dismissed claims by an inmate that he was not allowed to attend church while housed in the hot (restricted privileges) dorm.

In Tariq v. Chatman, 2012 U.S. Dist. LEXIS 118546 (MD GA, Aug. 22, 2012), a Georgia federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 118544, July 18, 2012) and permitted a Muslim inmate to proceed with his claim that his Noble Qu'ran was confiscated by prison officials who said it is "radical," "teaches hate," and has "the wrong kind of stuff in it." In a separate opinion (2012 U.S. Dist. LEXIS 118538, Aug. 22, 2012) the court dismissed certain of the defendants.

In Dabbs v. Vaughn, 2012 U.S. Dist. LEXIS 119137 (SD IL, Aug. 22, 2012), an Illinois federal district court, while dismissing certain claims and defendants, allowed a former inmate to proceed against others on his 1st Amendment free exercise claim that the prison chaplain took all but 5 Jewish inmates off the kosher diet list and off the monthly call passes for religious visits for buying non-kosher food from the commissary. The chaplain allegedly required Jewish prisoners to document their need for a kosher diet by submitting a two paragraph essay.

In Dyer v. Hardwick, 2012 U.S. Dist. LEXIS 119693 (ED MI, Aug. 23, 2012), a Michigan federal district court adopted in relevant part a magistrate's recommendations (2012 U.S. Dist. LEXIS 119704, Aug. 3, 2012) that had concluded that mere offensive remarks about a Jewish inmate's religion made by the deputy warden did not amount to a constitutional violation, nor did the deputy warden's suggestion that plaintiff withdraw her request for kosher meals so she could be transferred to another facility that did not offer them.

Saturday, August 25, 2012

D.C. Circuit Upholds Obama Administration Embryonic Stem Cell Research Guidelines

In Sherley v. Sebelius, (DC Cir., Aug. 24, 2012), the U.S. Court of Appeals for the D.C. Circuit upheld the Obama administration's embryonic stem cell research Guidelines against a claim that they violate limitations on such research imposed by Congress under the Dickey-Wicker Amendment.  This was the third time the case was before the Circuit Court.  Invoking the law of the case, Chief Judge Sentelle held that, as the court had previously decided, "Dickey-Wicker  permits federal funding of research projects that utilize already-derived ESCs—which are not themselves embryos—because no 'human embryo or embryos are destroyed' in such projects."  He also rejected plaintiffs' argument that research on embryonic stem cells violate the ban on subjecting embryos to risk because such research incentivizes the destruction  of  more  embryos  to  create  more cell  lines. Finally he rejected claims that NIH violated the Administrative Procedure Act in issuing the Guidelines without responding to various comments that had been submitted. Judge Henderson and Judge Brown each filed separate opinions concurring in the result, but disagreeing about the extent of deference that should have been given to the NIH's interpretation of the Dickey-Wicker Amendment. (See prior related posting.) AP reports on the decision.