Religion Clause

Wednesday, September 05, 2012

California Passes Bill To Prevent Employment Discrimination Over Religious Hair Style or Dress

The California legislature last week passed and sent to the governor for his signature two related bills-- AB 1964 and AB 2386-- that together expand the definition of "religion" and related terms in the state's employment discrimination law to clarify the meaning of religious dress and grooming practices. The amendment defines them broadly to include head or face coverings, jewelry, or artifacts, and all forms of head, facial, and body hair that are part of the individual's religious observance. The amendments also provide that it is not a reasonable accommodation of an individual's religious dress or grooming practices to segregate the employee from other employees or the public. (By their terms, both bill must be signed by the governor for either to become effective.) IndiaWest reports that AB 1964 (the broader of the 2 bills) was supported by 18 civil rights organizations led by the Sikh Coalition. [Thanks to Don Byrd for the lead.]

Hindu Leader Ordered To Jail Pending Sentencing On Abuse of Visa Program

The Milwaukee Journal Sentinel reports that a Wisconsin federal district judge has ordered a convicted Hindu religious leader to jail pending his sentencing next month. Last November, Sagarsen Haldar (also known as Gopal Hari Das) was convicted of conspiracy to defraud the government after it was shown that he had abused the religious worker visa program. Haldar filed 25 applications with the State Department claiming that the people he was sponsoring would be working at his Hindu temple in Milwaukee. In fact, however, they were working as cab drivers or at convenience stores and turning their cash earnings over to Haldar who had charged them up to $30,000 to arrange their entry. After his conviction, Haldar had been allowed to remain free pending sentencing. However he has now apparently violated conditions of his release by not reporting a contact with police in a shoplifting incident to his probation officer, and in filing false documents with the court in seeking a new trial. Last week Judge Rudolph Randa revoked Haldar's release, saying that there is a danger he may flee to his native India before his sentencing.

Tuesday, September 04, 2012

Democratic 2012 Platform: Provisions on Faith In America, Civil Rights, and Social Issues

As reported by Raw Story, the Democratic Party released it 2012 Platform (full text) on Monday night. It includes a number of provisions on the role of faith in America and on issues that have been of particular concern to religious groups. The Platform section titled "Strengthening the American Community" includes the following:

Faith has always been a central part of the American story, and it has been a driving force of progress and justice throughout our history. We know that our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it inspires. Faith- based organizations will always be critical allies in meeting the challenges that face our nation and our world – from domestic and global poverty, to climate change and human trafficking. People of faith and religious organizations do amazing work in communities across this country and the world, and we believe in lifting up and valuing that good work, and finding ways to support it where possible. We believe in constitutionally sound, evidence-based partnerships with faith-based and other non-profit organizations to serve those in need and advance our shared interests. There is no conflict between supporting faith-based institutions and respecting our Constitution, and a full commitment to both principles is essential for the continued flourishing of both faith and country.

The Platform supports "comprehensive immigration reform that supports our economic goals and reflects our values as both a nation of laws and a nation of immigrants;" "policies that truly value families," and "a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay." It also provides:

We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

The Platform Section on Civil Rights says in part:

At the core of the Democratic Party is the principle that no one should face discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability status. Democrats support our civil rights statutes and we have stepped up enforcement of laws that prohibit discrimination in the workplace and other settings. We are committed to protecting all communities from violence. We are committed to ending racial, ethnic, and religious profiling and requiring federal, state, and local enforcement agencies to take steps to eliminate the practice....

...we must continue our work to prevent vicious bullying of young people and support LGBT youth... The Administration has said that the word 'family' in immigration includes LGBT relationships in order to protect bi-national families threatened with deportation.

The Platform also contains sections on "Combating Human Trafficking" and on "Gay Rights As Human Rights."

Who Will Offer Prayers At the Democratic Convention?

As with the Republicans (see prior posting), so the Democrats have a diverse group offering invocations and benedictions at their convention (CNN), which begins today. Here is the lineup (updated from earlier posting):

Tuesday:

Invocation-- His Eminence Metropolitan Nicholas (Bishop of the Greek Orthodox Diocese of Detroit).
Benediction-- Jena Lee Nardella (Founder and Executive Director of Blood: Water Mission).

Wednesday:

Invocation-- Vashti Murphy McKenzie (presiding bishop in the African Methodist Episcopal Church)
Benediction-- Rabbi David Wolpe (Sinai Temple in Los Angeles).

Thursday:

Invocation-- Rev. Gabriel Salguero (president of the National Latino Evangelical Coalition).
Benediction-- Cardinal Timothy Dolan, (Archbishop of New York).

Also, Sister Simone Campbell, executive director of the Network lobby, and chief organizer of the "Nuns on the Bus" tour, will speak at the Convention on Wednesday.

In India, Former BJP Official and 30 Others Sentenced In 2002 Gujarat Hindu-Muslim Riots

Time reports that last Friday, in the Indian state of Gujarat a special court sentenced Maya Kodnani, the former state minister for women and child development, to 28 years in prison for her role in the 2002 Naroda Patiya massacre during which Hindus killed 96 Muslims as part of widespread Hindu-Muslim violence following the firebombing of a train carrying Hindu pilgrims. Thirty other defendants were sentenced to life in prison in connection with the massacre. (See prior related posting.) According to the Business Standard, the court found that Kodnani was one of the principal conspirators and that she played a role in instigating the Hindu mobs. In its 1,969 page judgment, the court said: "This court firmly believes that had the instigation not been done by A-37 (Maya Kodnani), had the offence not been abetted by her, the communal riots would not have spread at Naroda Patiya on such large scale." Kodnani has been an important member of the Bharatiya Janata Party (BJP) which is the ruling party in Gujarat and the main opposition party in India's central government. However BJP leaders distanced the party from her after the verdict, pointing out that in 2002 when the riots took place she was a state legislator, not a cabinet minister. She was made a minister subsequently.

Ultra-Orthodox Rabbis Say They Will Not Comply With NYC Circumcision Informed Consent Rule If It Is Adopted

As previously reported, the New York City Health Department will vote on Sept. 13 on proposed rules to require written informed consent by parents to a controversial Jewish ritual circumcision method that health authorities say can spread herpes. The procedure, known as metzitzah b’peh, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site and is used only by certain Orthodox Jewish sects. On Sunday, both the New York Post and Vos Iz Neias? blog report that some 200 ultra-Orthodox rabbis have signed onto a Proclamation (full text in Yiddish) saying that the Health Department "printed and spread lies. . . in order to justify their evil decree." Rabbi David Niederman, executive director of the United Jewish Organization of Williamsburg, said that mohels will not comply with the regulation if it is approved. He said: "For the government to force a rabbi who’s practicing a religious act to tell his congregants it’s dangerous is totally unacceptable. You’re forcing the mohel and the parent to sign a piece of paper that contradicts their religious convictions."

Warrant To Search Everyone For Drugs At Church-Sponsored Concert Is Invalid

Church of Universal Love and Music v. Fayette County, (WD PA, Aug. 31, 2012), is a suit for damages claiming violations of the 1st and 4th Amendment in the execution of a warrant allowing the search of "all persons present" at a concert on the property of the Church of Universal Love and Music. (See prior related posting.) Finding that the warrant was invalid, the court said that even though there was widespread drug use on the property, "the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity." However, the court said this does not establish liability because of various defenses asserted. The court found that insofar as personal capacity claims are being asserted, two of the officers have qualified immunity. However the prosecutor does not have absolute prosecutorial immunity for his activities as lead coordinator of the county drug task force. The court also refused to dismiss plaintiffs' Monell claim against the county that alleged a policy of harassing the church. Defendants did not seek dismissal of Plaintiffs' claims of retaliation based on First Amendment free exercise, free speech, and free association.

Monday, September 03, 2012

Cleric Arrested For Falsifying Evidence In Pakistan Blasphemy Case

In Pakistan, the blasphemy case against Rimsha Masih, the developmentally disabled Christian girl who was arrested for burning sacred documents (see prior posting), has taken an unexpected turn. According to the New York Times yesterday, a 30-year old Muslim cleric who is at the forefront of those calling for the girl's prosecution was arrested Saturday on charges of falsifying evidence against her. A muezzin in the mosque led by Mohammad Khalid Chisti went before a magistrate and charged that Chisti added two pages from the Qur'an to burned papers that were taken from the girl-- who had only burned pages of the Noorani Qaida, a holy text used to teach children the Qur'an. The muezzin told police: "I tried to stop him, but he said that this would strengthen our case."

Naturist's Free Exercise Rights Not Violated By Fencing of Nude Beach

In Wittbold v. Miami-Dade County, (SD FL, Aug. 31, 2012), a Florida federal district court dismissed without prejudice plaintiff's claim that defendants violated his free exercise rights by limiting nude sunbathing to an area of a Florida beach they fenced in. Thomas Wittbold alleges religious discrimination because he cannot practice his religion of Naturism outside the fenced area, and claims that forcing him to worship in an artificially created restrictive area amounts to false imprisonment. The court concluded, however that "Plaintiff can exercise his religion within the nude beach. Plaintiff does not allege how the fence or signs prevent him from exercising his religion." The court also dismissed without prejudice plaintiff's claim that he was discriminated against in violation of state law because he failed to allege that he had filed a complaint with the state's Commission on Human Relations.

Alabama High Court Dismisses Pastor's Defamation Claim On 1st Amendment Grounds

In In re Higgs v. Bole, (AL Sup. Ct., Aug. 31, 2012), the Alabama Supreme Court dismissed a defamation, invasion of privacy and intentional infliction of emotional distress lawsuit brought by Lawton Higgs, Sr., a United Methodist pastor, against a lay member of the Church of the Reconciler (COR). Tom Bole, a lay member of COR, wrote to Rev. Ron Schultz, a district supervisor of the North Alabama Conference of the United Methodist Church, charging COR pastor emeritus Lawton Higgs, Sr., and his son Kevin Higgs who served as COR's senior minister, with accounting irregularities, as well as expressing concern about the pastors' liberal political rhetoric. The Conference began an investigation, but on May 26, 2011, informed various COR members that the complaint was dismissed and that the Higgs' would be transferred out of any role in the congregation. At that point, Bole sent a e-mail to numerous members of the congregation charging the Higgs' with wrongful conduct. Lawton Higgs, Sr. sued. Finding that his claims were intertwined with the underlying investigation by the Conference, the court concluded:

Any attempt to adjudicate Higg's claim would require an impermissible inquiry into the Conference's investigation of the complaints against Higgs and Kevin, into the results of the investigation conducted by the Conference, into the factual findings that formed the basis for the resolution and into the Conference's decision to remove Higgs and Kevin from COR.... Additionally, allowing the claims regarding Bole's May 31, 2011 conversation ... and ... e-mails ... to proceed could have a chilling effect on communication among members of a congregation regarding church leadership.... For these reasons, the trial court did not have subject-matter jurisdiction over Higg's claims against Bole by virtue of the First and Fourteenth Amendments to the United States Constitution.

Sunday, September 02, 2012

Reverend Sun Myung Moon Dies

Rev. Sun Myung Moon, controversial founder of the Unification Church, died Monday local time in a hospital near Seoul, South Korea. AP reports that the 92-year old religious leader died of pneumonia. The Unification Church claims to have 3 million members worldwide, but critics dispute that figure. It also has acquired extensive business interests, including the Washington Times (which has an extensive article on Rev. Moon's life) and Connecticut's University of Bridgeport.

Court Balances Privacy Concerns In Establishment Clause Discovery Order

A Kentucky federal district court has resolved a discovery issue in the long-running case claiming that Kentucky's funding of the Sunrise Children’s Services (formerly Kentucky Baptist Homes for Children) violates the Establishment Clause. (See prior posting.) In Pedreira v. Sunrise Children's Services, (WD KY, Aug. 30, 2012), a Kentucky federal district court, balancing the privacy concerns of former residents with plaintiffs' need for information, held that KBHC will be required to disclose in discovery the names of former residents who complained of religious proselytization, but not those who complained merely of religious intolerance. It will also be required to disclose names of former employees.

Recent Prisoner Free Exercise Cases

In Murphy v. Lockhart, 2012 U.S. Dist. LEXIS 120548 (ED MI, Aug. 24, 2012), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 156028, Oct. 18, 2011) and dismissed an inmate's 1st and 14th Amendment and RLUIPA objections to the prison's refusal to allow him to receive a book he ordered from the Power of Prophecy Ministries entitled Codex Magica: Secret Signs, Mysterious Symbols, and Hidden Codes of the Illuminati, because it contains information on how to write letters in code.

In Howard v. Skolnik, 2012 U.S. Dist. LEXIS 120342 (D NV, Aug. 23, 2012), a Nevada federal district court dismissed an inmate's objections that prison authorities held only one Muslim service each week. He wanted a separate Nation of Islam service entirely in English. The court awarded plaintiff damages of $120 for 12 lost legal and religious cassette tapes.

In Washington v. Brown, 2012 U.S. Dist. LEXIS 120950 (ED CA, Aug. 23, 2012), a California federal magistrate judge recommended dismissing RLUIPA damage claims by a Muslim inmate who contended that he was not placed on the Ramadan fast list and was not permitted to make up the fast days he missed. The court concluded that: "The plain language of RLUIPA appears to contemplate the creation of a damages remedy against state actors in their individual capacities.... [H]owever, Congress' Spending Clause power does not provide it with authority to enact a private right of action with a monetary damages remedy against individual defendants who are not recipients of federal funds."

In Gulino v. Crossdale, 2012 U.S. Dist. LEXIS 120235 (D CT, Aug. 22, 2012), a Connecticut federal district court dismissed an inmate complaint that a religious object he wore around his neck was confiscated and lost.

In Merrell v. Allred, 2012 U.S. Dist. LEXIS 120311 (D CO, Aug. 24, 2012), a Colorado federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 120312, July 17, 2012) and permitted an inmate to proceed with this claim under RLUIPA that he is being required to undergo an annual TB test despite his protest that the injections violate his religious beliefs.

In Wilson v. Kelly, 2012 U.S. Dist. LEXIS 121293 (ND NY, Aug. 27, 2012), a New York federal district court in an unusual move rejected a part of a magistrate's recommendations (2012 U.S. Dist. LEXIS 121450, June 22, 2012) and permitted an inmate to proceed with his claim that one of the defendants retaliated against him for filing a grievance by having his name removed from the kitchen Ramadan list. However the court dismissed his complaint that he missed 7 religious services while in keep lock confinement.

In Grissom v. Werholtz, 2012 U.S. Dist. LEXIS 121694 (D KS, Aug. 28, 2012), a Kansas federal district court dismissed an inmate's complaint that the chaplain required him to sign a change of religion form in order for him to keep a Celtic cross and chain that he possessed. The cross was not a crucifix and so was not authorized for Catholic prisoners.

In McChesney v. Hogan, 2012 U.S. Dist. LEXIS 120509 (ND NY, Aug. 23, 2012), a New York federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 122503, July 30, 2012) and dismissed a claim by a civilly committed atheist that forcing him to participate in various specific sex offender treatment programs violates his free exercise rights and the Establishment Clause.

In Whitfield v. Tulp, 2012 U.S. Dist. LEXIS 123144 (ED CA, Aug. 28, 2012), a California federal magistrate judge dismissed a former inmate's various constitutional and statutory claims growing out of correctional officers' refusal to allow him to send his excess personal and legal property to a friend. His property, including religious materials and a Bible, was confiscated and destroyed. The court concluded: "there is no support for a claim that Defendants acted to prevent Plaintiff from engaging in the practice of his religion."

In Thomas v. Connolly, 2012 U.S. Dist. LEXIS 123951 (SD NY, Aug. 30, 2012), a New York federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that his free exercise rights were infringed when he was not permitted to distribute food as an act of charity for his Zakat-ul-Fitr obligation, and when confusion in scheduling caused him to be unable to participate in observance of the first and last days of the Ten Days of Muharram Festival.

In Knight v. Mulvaney, 2012 U.S. Dist. LEXIS 123325 (WD MI, Aug. 30, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 123622, July 30, 2012) and dismissed a claim by a Nation of Islam inmate who claimed his free exercise, 14th Amendment and RLUIPA rights were violated when he was placed in temporary segregation and was designated a security threat group leader for proselytizing other prisoners and possessing religious literature.

Denial of Unemployment Benefits To Seventh Day Adventist Held Unconstitutional

In Nyaboga v. Evangelical Lutheran Good Samaritan Society, (MN App., Aug. 27, 2012), a Minnesota appellate court held that it is a violation of the Free Exercise Clause to deny unemployment compensation benefits to a nurse who was terminated from her position because of her absence for religious reasons. Risper Nyaboga, a Seventh Day Adventist, previously worked Saturday shifts but became more observant after she was rebaptised. A record of tardiness and absence led to her firing. None of the tardinesses and only a handful of the absences were for religious reasons. Most related to childcare issues. She was warned that 2 more tardinesses or one more absence would lead to her firing. She was then terminated when she was absent on a Saturday on which she could not find another nurse to cover her shift. Thus, according to the court: "Although Nyaboga had a history of tardiness, the conduct that triggered her discharge was an absence for religious reasons."

Saturday, September 01, 2012

Upscale Religiously-Affiliated Retirement Community Does Not Get Tax Exemption

In Franciscan Communities, Inc. v . Hamer, (IL App., Aug. 28, 2012), an Illinois appellate court agreed with the state Department of Revenue that a continuing care retirement community (known as Village at Victory Lake (VL)) operated by the Franciscan Sisters does not (except for the chapel) qualify for a property tax exemption under provisions exempting property used exclusively for religious or charitable purposes. The court said in part:

It is FC’s position that civil authorities must accept not only a religious organization’s characterization of its beliefs but also the entity’s characterization of its use of the subject property. Under this theory, no property taxes could ever be imposed on any property a religious organization declared was used exclusively for religious purposes, regardless of the true facts. This is contrary to established law.....

... [T]he primary use of VL was for upscale senior housing and care with an enhanced lifestyle. To be sure, there was a religious component, but ... advancing religion was not VL’s primary purpose.... Here, we are not called upon to decide whether the Sisters engage in religious activities. It is a given that they do, but the evidence overwhelmingly showed that the operation of VL was businesslike and characteristic of a commercial enterprise. VL was not giving care to the elderly; it was selling care to the elderly, as well as a certain lifestyle for those in independent living, at competitive market rates.

Religious Wedding Without License Is Not Remarriage That Terminates Spousal Support Order

California Family Code Section 4337 provides that the obligation under a court order to support a former spouse terminates when the former spouse remarries. In Left v. Left, (CA App., Aug. 23, 2012), a California appeals court held however that when a divorced wife goes through a Jewish religious marriage, performed without also having a marriage license from the state, her former husband’s support obligation is not terminated. The issue arose in the dissolved marriage of Andrea and Andrew Left. In June 2008, the trial court entered an order of dissolution as well as temporary child and spousal support. A number of other contested issues though remained for decision by the court. In December 2008, Andrea became engaged to Dr. Todd Katzman and planned an elaborate wedding for May 2009. Invitations were sent out and plans made. As the wedding date approached, it became clear that Andrea and Andrew would not be able to resolve the remaining contested issues in the divorce before May. So Andrea and Todd went ahead with the celebration, signing a ketubah (Jewish marriage contract), and proceeding with a ceremony presided over by a rabbi, who was told only 30 minutes before the ceremony that there had been a problem getting the marriage license. The rabbi did not inform the guests at the ceremony of this. In holding that this ceremony did not terminate the prior support order, the court said:

it is reasonable to conclude that the Legislature never intended that the term “remarriage,” within the meaning of section 4337, would encompass a commitment ceremony where the couple intentionally did not meet the legal requirements of marriage.

National Law Journal reports on the decision.

Friday, August 31, 2012

Romney's Work As Lay Mormon Pastor Detailed To Convention

Reuters reports on the three speakers last night at the Republican National Convention who focused in detail on nominee Mitt Romney's activities as a lay Mormon pastor in a Boston area Mormon church in the late 1970's. Grant Bennett (full text of remarks), who served as Romney's assistant in the church and later himself became pastor, described Romney's work:

For one or two evenings each week and several hours every weekend -- week after week and year after year -- he met with those seeking help with the burdens of real life, burdens we all face at one time or another: unemployment, sickness, financial distress, loneliness.

Mitt prayed with and counseled church members seeking spiritual direction, single mothers raising children, couples with marital problems, youth with addictions, immigrants separated from their families, and individuals whose heat had been shut off.

Then Ted and Pat Oparowski (full text of remarks) described Romney's visits with their terminally ill 14-year old son, and Pam Finlayson (full text of remarks) told of Romney's clergy visits to the hospital and other help and support from the Romney family after her daughter was born three and a half months premature.

Indian State's Requirement of Notifying State of Intended Conversion Ruled Unconstitutional

In Evangelical Fellowship of India v. State of Himachal Pradesh, (HC Himachal Pradesh, Aug. 30, 2012), a 2-judge panel the High Court of the Indian state of Himachal Pradesh struck down as unconstitutional provisions in Himachal Pradesh's Freedom of Religion Act 2006 and the implementing rules that require a person intending to convert from one religion to another to give 30 days prior notice to the District Magistrate, except where the person is reverting to his original religion. The court said in part:

[E]ach and every citizen of this country has a right not only to follow his own beliefs but also has a right to change his beliefs....

A person's belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief.... Any conversion, which take place by “force”, “fraud” or “inducement”, must be dealt with strictly in accordance with law which we have held to be valid. At the same time, the right to privacy and the right to change the belief of a citizen cannot be taken away under the specious plea that public order may be affected.

Times of India reports on the decision.

Jehovah's Witness Teachers Sue Over Refusal To Rehire

Naples (FL) News reports on a suit filed last week in a Florida federal district court by two teachers who claim that a Fort Myers elementary school refused to rehire them after the principal found that they are members of the Jehovah's Witnesses. Kristine and Gerardo Rosales contend that Principal Holly Bell, with whom they previously had a close relationship, refused to "engage in any meaningful communication or interaction" with them, especially after they refused to attend the school's Christmas event. Jehovah's Witnesses religion does not permit celebration of Christmas. The lawsuit alleges that the principal denied Kristine Rosales' tenure by failing to follow the evaluation provisions of the collective bargaining agreement, and that she claimed a non-existent reduction in forces as a reason for not rehiring Geraldo Rosales.