Fact Issues Remain In Nursing Aide's Firing After Refusing To Pray Rosary With Resident

Norbach v. Woodland Village Nursing Home Center, Inc., (SD MI, Sept. 4, 2012), is a Title VII religious accommodation lawsuit filed by a woman who was employed as an activity aide at a nursing home.  She was fired for insubordination after she refused to pray the rosary with a Catholic resident suffering from Alzheimer's disease. A Mississippi federal district court refused defendant's motion for summary judgment finding that a number of material questions of fact remain to be determined.  These include whether there were also other reasons for plaintiff's termination, whether praying the rosary conflicts with her religious beliefs and whether the nursing home could make a reasonable accommodation of her beliefs without experiencing an undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

9th Circuit Hears Oral Arguments In Religious Workers' Visa Case

Last week (Aug. 27), the U.S. 9th Circuit Court of Appeals heard oral arguments in Ruiz-Diaz v. United States. In the case, a Washington federal district court rejected a challenge to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. (See prior posting.) An audio recording of the full arguments is available online, and Courthouse News has a summary of the oral arguments. Appellants argued  in part that delays in the adjustment of status may lead to a religious worker having to leave the country and a church being deprived of the right to practice its religion because it cannot find a replacement.

South Dakota High Court Dismisses Claims Based On Sex Abuse At Indian Reservation School

As reported by the Sioux City Journal, the South Dakota Supreme Court on Wednesday, in two opinions, dismissed several claims that had been filed by a number of former students of St. Paul's School on the Yankton Indian Reservation.  Plaintiffs claimed they had been sexually abused over 35 years ago while attending the boarding school that was operated by various Catholic religious orders and organizations.  In Bernie v. Blue Cloud Abbey, (SD Sup. Ct., Sept. 5, 2012), the court held that the extended statute of limitations for childhood sexual abuse in effect when the suit was filed does not extend the time for filing suit against the religious orders or the Diocese of Sioux Falls, as opposed to the claims against the perpetrators themselves. The extended limitation period only applies to suits alleging intentional conduct involving an act that would have constituted a felony. It does not apply to claims against "non-perpetrating defendants who are sued for negligence or on other theories of liability not involving intentional, criminal conduct."

In Bernie v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Sept. 5, 2012), the South Dakota Supreme Court rejected a respondeat superior claim against the Diocese of Sioux Falls because the alleged acts "were solely in the perpetrators’ own interests and were not in furtherance of the pursuit of any Diocesan business."  It also rejected negligence and breach of fiduciary duty claims against the Diocese because plaintiffs failed to show an agency relationship between the Diocese and the religious orders operating the school. Nor did the Diocese's relationship with the students create a fiduciary duty of protection.

Military Judge Orders Hasan To Shave Beard, Rejecting RFRA Claim

Yesterday at Fort Hood, Texas, a military judge in the court martial of accused mass killer Maj. Nidal Hasan has ordered Hasan to shave his beard or be forcibly shaved. The New York Times and a press release from Ft. Hood provide details on the decision. Hasan claims he has grown the beard for religious reasons.  The judge, Col. Gregory Gross, ruled that the Religious Freedom Restoration Act applies to court martial proceedings, but that the government has a compelling interest in requiring Hasan to shave because his wearing the beard would make it more difficult for witnesses to identify him.  The prosecution also introduced evidence that Hasan grew the beard in part to identify himself with the radical Islamic Mujahedeen. Col. Gross ruled that his order will not be carried out until Hasan has a chance to appeal the ruling.

Minnesota Board Exempts Catholic Organization Employee's Pro-Gay Marriage Contribution From Disclosure

Minnesota Statutes 10A.20 requires every political committee to file disclosure reports identifying anyone who has contributed over $100 to a candidate or to a campaign for a ballot issue, but allows an exemption where an individual "demonstrates by clear and convincing evidence that disclosure would expose the ... contributor to economic reprisals, loss of employment, or threat of physical coercion."  In an interesting decision last month in In re Application of John Doe, (MN Campg. Fin. & Pub. Discl. Bd., Aug. 7, 2012), the Minnesota Campaign Finance and Public Disclosure Board granted an exemption to an employee of a Catholic organization who had contributed $600 to an organization that opposes the Marriage Amendment that will appear on the November ballot. That proposed amendment provides that "only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota." The contributor argued that "because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships." The Board concluded that "Mr. Doe has established by clear and convincing evidence that the itemized report of his contribution to Minnesotans United for All families would expose him to the loss of his employment." Dale Carpenter at Volokh Conspiracy has more on the decision.

European Court Interprets When EU Country Must Grant Asylum For Religious Persecution

In Bundesrepublik Deutschland v Y and Z, (EU Ct. Justice, Sept. 5, 2012), the Court of Justice of the European Union interpreted the EU's directive on the status of refugees in the case of two Pakistani members of the Ahmadiyya community who are seeking asylum in Germany.  As summarized by the Court's press release::

The Bundesverwaltungsgericht (Federal Administrative Court,  Germany), before which the disputes have been brought, asks the Court of Justice to specify what restrictions on the practice of a religion may be considered as persecution justifying the grant of refugee status.

In today’s judgment, the Court finds, first, that only certain forms of severe interference with the right to freedom of religion, and not any interference with that right, may constitute an act of persecution requiring the competent authorities to grant refugee status....

... [A]cts which may constitute a severe violation include serious acts which interfere with a person’s freedom not only to practice his faith in private circles but also to live that faith publicly.... [A] violation of the right to freedom of religion may constitute persecution where, because of the exercise of that liberty in his country of origin, there is a genuine risk that the asylum applicant will ... be prosecuted or subject to inhumane or degrading punishment.... [W]here the participation in formal worship... may give rise to such a risk, the violation of the right to freedom of religion may be sufficiently serious.

...[T]he protection afforded on the basis of persecution on religious grounds extends both to forms of personal or communal conduct which the person concerned considers to be necessary to him ... and to those prescribed by religious doctrine....

Finally ... where it is established that, upon his return to  his country of origin, the person concerned will engage in a religious practice which will expose him to a real risk of persecution, he should be granted refugee status.... [I]n assessing an application for refugee status on an individual basis, the national authorities cannot reasonably expect the applicant to abstain from the manifestation or practice of certain religious acts.

Deutsche Welle reports on the decision.

Retaliation Claim Survives In Employee's Religious Discrimination Suit

In Chukwueze v. NYCERS (New York City Employees' Retirement System), (SD NY, Aug. 30, 2012), a New York federal district court allowed an evangelical Christian of West Indian descent, a former employee of NYCERS, to proceed with his claim that he was fired in retaliation for his complaints about religious discrimination by his supervisor, Michelle Gaddy. However the court dismissed other of his claims, including a hostile work environment claim.  At issue was Omar Chukwueze's ongoing disputes with Gaddy over his requests to use leave to take off for various religious holidays, and claims that Gaddy continually berated him in the presence of his entire unit for his requests. [Thanks to Steven H. Sholk for the lead.]

Official Says NYPD No Longer Surveilling New Jersey Muslim Groups

Yesterday, New Jersey state attorney general Jeffrey Chiesa told a group of Muslim leaders that the New York City Police Department's Demographics Unit that conducted surveillance of Muslim businesses, religious leaders and student groups is no longer operating in New Jersey. (See prior related posting.) According to an AP report carried by the Huffington Post, Chiesa however stood by his previously announced conclusion that the NYPD had not violated any New Jersey laws when it secretly spied on Muslim neighborhoods and organizations, infiltrated Muslim student groups and videotaped mosque-goers in New Jersey. Chiesa's remarks came at the first meeting of an outreach committee that has been formed to repair relations between New Jersey law enforcement officials and the Muslim community. An NYPD spokesman though said that the NYPD is "continuing and will continue to follow leads wherever they take us, including out-of-state."

Berlin Will Not Prosecute Religious Circumcision If Specified Conditions Are Met

Jurist reports that in Germany, state of Berlin Justice minister Thomas Heilmann announced in a press release yesterday (full text in German) that the state will not prosecute anyone performing a circumcision on a young boy so long as (1) the parents consent in writing after being informed of the risks, (2) the parents have a religious motivation for the procedure, and (3) the procedure is performed in accordance with acknowledged medical standards. The statement came in response to an inquiry by a Jewish hospital in Berlin after a court in Cologne ruled in June that parents do not have the right to authorize religious circumcision for their minor sons. (See prior posting.)

Democrats Amend Platform To Restore Language Specifically Mentioning God

As reported by ABC News, the Democratic National Convention at the beginning of its session today voted to amend its previously adopted Platform to restore the following language that had appeared in the 2008 Platform, but had been omitted from this year's document:

We need a government that stands up for the hopes, values and interests of working people, and gives everyone willing to work hard the chance to make the most of their God-given potential.

The Republicans had strongly criticized the omission of this sentence since it meant that the word "God" did not appear anywhere in the Democratic Platform, while the Republican Platform uses the word "God" 12 times. (See prior related posting.) The 2012 Democratic Platform did already have a section on Faith. (See prior posting.) The vote today also restored language from the 2008 Platform recognizing Jerusalem as the capital of Israel. Procedurally the amendment required a 2/3 vote, and Convention chairman Antonio Villaraigosa took the voice vote 3 times in a row before declaring the Platform amendments had passed.

European Court Hears 4 British Cases On Accommodating Christian Employees' Beliefs

Yesterday the European Court of Human Rights held a Chamber hearing on four cases from the United Kingdom raising issues of religious accommodation.  The cases are Chaplin v. the United Kingdom (application no. 59842/10), Eweida v. the United Kingdom (no. 48420/10), Ladele v. the United Kingdom (no. 51671/10) and McFarlane v. the United Kingdom (no. 36516/10). (Links are to prior postings on each case.) As reported by EurActiv, two of the cases involved Christians women who were not permitted by their employers to wear a cross around their neck. The other two cases involve Christian employees who object on religious grounds to same-sex marriage. One refused to provide counseling to same-sex couples. The other case involves a registrar who refused to officiate at same-sex civil union ceremonies. The European Court has issued a press release describing the cases, and has posted a webcast of the hearing.

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.

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.

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.