Religion Clause

Tuesday, September 25, 2012

Challenge To Utah's Anti-Bigamy Law Is Not Moot

In Brown v. Herbert, (D UT, Aug. 17, 2012), a Utah federal district court denied a motion made by the county attorney of Utah County, Utah, to dismiss as moot a challenge to the state's Anti-Bigamy statute brought by members of an openly polygamous family (subjects of the television show Sister Wives). (See prior related posting.) County Attorney Jeffrey Buhman argued that his office has recently adopted a policy of not prosecuting under the statute unless there has been some other criminal conduct as well. The court said however:

While it may be the case that Mr. Buhman believes that prosecution of Plaintiffs would be inappropriate in this circumstance, there is no reason to believe that such a determination is anything beyond an exercise of prosecutorial discretion that could be easily reversed in the future by a successor Utah County Attorney, or by Mr. Buhman himself, if he should change his mind. As a result, Mr. Buhman’s adoption of the non-prosecution policy at issue in this matter is not sufficient to establish that future prosecution of Plaintiffs is unlikely to recur.

2nd Circuit Rules In Favor Of Church In Land Use Dispute

In Fortress Bible Church v. Feiner, (2d Cir., Sept 23, 2011), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's decision that the Town of Greenburgh, New York violated RLUIPA's "substantial burden" provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school. (See prior posting.) The Court of Appeals first resolved the question of whether the Religious Land Use and Institutionalized Persons Act applies to the town's decision, which was made in the context of the New York State Environmental Quality Review Act. The court said:

in no sense do we believe that ordinary environmental review considerations are subject to RLUIPA. However, when a statutorily mandated environmental quality review process serves as a vehicle to resolve zoning and land use issues, the decision issued constitutes the imposition of a land use regulation as that term is defined in RLUIPA.

The court went on to hold:

A denial of a religious institution's building application is likely not a substantial burden if it leaves open the possibility of modification and resubmission.... However, if the town's stated willingness to consider another proposal is disingenuous, a conditional denial may rise to the level of a substantial burden...

We need not resolve here whether zoning variance decisions challenged under the Free Exercise Clause are subject to strict scrutiny or rational basis review because we conclude that on the record before us there was no rational basis for the Town's actions...

AU Calls For IRS To Investigate Colorado Christian Organization

Americans United announced last week that it has filed a complaint (full text of letter) with the Internal Revenue Service asking it to investigate the Ridgway, Colorado based Ridgway Christian Center for violating tax code limitations on non-profit organizations. The letter points to a magazine distributed by Ridgway (a project of Praise Him Ministries) to Colorado residents:

Please note the cover of the publication. It is dated Fall 2012 and contains a photo of a series of American flags. The headline reads, “Honor God! Love your country! VOTE REPUBLICAN!”

Inside the publication, Victoria Hearst, founder and president of the ministry, writes a long article challenging the right of the Internal Revenue Service to prohibit tax exempt organizations from endorsing or opposing candidates for public office. The articles relies heavily on material produced the Alliance Defending Freedom (formerly the Alliance Defense Fund), an Arizona-based organization that every year sponsors an event called “Pulpit Freedom Sunday,” during which pastors are urged to openly violate the law by endorsing or opposing candidates from the pulpit.

PBGC Takes Over B'nai B'rith's Pension Plan

On Sept. 11, the Pension Benefit Guaranty Corporation announced that it is stepping in to take over the pension plan of B'nai B'rith International, a Washington, DC-based Jewish advocacy organization. Without the takeover, B'nai B'rith would have been unable to continue to operate. Under the takeover, PBGC will pay retirees their earned pensions up to the legal limit of PBGC coverage, $54,000 per year. JTA reported yesterday that B’nai B’rith filed an application with the PBGC in 2011, informing the federal agency that B'nai B'rith could no linger fulfill its pension plan obligations. The application came just a month before B'nai B'rith's then volunteer president, Dennis Glick, resigned from his position after being indicted on federal tax fraud charges.

Cert. Petition Filed In Bald Knob Cross Challenge

A petition for certiorari to the United States Supreme Court (full text) was filed on Sept. 4 in Sherman v. State of Illinois. In the case, the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacked taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state. (See prior posting.) AP reported on the filing. [Thanks to Alliance Alert for the lead.]

Iowa Faces Another Contested Supreme Court Retention Election Over 2009 Same-Sex Marriage Decision

In Iowa, state Supreme Court justices are appointed by the governor, but stand in retention elections one year after their first appointment, and every eight years after that. In 2010, voters opposed to the state Supreme Court's unanimous decision supporting same-sex marriage ousted 3 of the 7 justices who voted to invalidate the state's law that had barred recognition of same-sex marriages. (See prior posting.) In November, another of the Justices who voted for the decision is up for retention and, according to the Des Moines Register, competing rallies by Justice David Wiggins' opponents and supporters are being held around the state. Iowans for Freedom, who want Wiggins out of office, began a 4-day, 17 city bus tour with a rally at the Iowa State Capitol yesterday. Among the speakers were former Republican presidential candidate Rick Santorum and former Iowa gubernatorial candidate Bob Vander Plaats. A spokesman for the group said: "This is nothing personal against Justice Wiggins, understand. He’s just number four in a line of seven who committed a grievance against the people."

Meanwhile a group of lawyers, elected officials and Democratic activists are shadowing the “No Wiggins” campaign, defending the merit selection process. The president-elect of the Iowa State Bar Association said: "We don’t want to return to the days where politics have been injected into our system, and remove the fair and impartial courts that we have, well-respected throughout this country."

Buddhist Stupa To Be Removed From National Park Land Because of Constitutional Concerns

AP reported yesterday that the National Park Service has decided to remove a stupa (Buddhist reliquary) that has been on the grounds of Petroglyph National Monument in New Mexico since 1990. The decision comes after the group Public Employees for Environmental Responsibility asked the Park Service to review the constitutionality of keeping the 10-foot structure containing Buddhist relics on federal land. The Department of Interior's solicitor general ruled that maintaining the stupa violates the Establishment Clause. The stupa will be donated to the Buddhist community in Albuquerque.

Monday, September 24, 2012

Pakistani Girl Exonerated Of Blasphemy By Police; Case Referred To Juvenile Court

In Pakistan on Saturday, police told a court that their investigation in the widely followed blasphemy case against a Christian girl, Rimsha Masih, has shown that there is no evidence that the girl has committed blasphemy. According to the Khaleej Times, the charge sheet submitted by police to the court alleges that the prayer leader of a nearby mosque, Mohammed Khalid Chishti, added holy pages to a shopping bag that Masih had been carrying. Today, according to DAWN, the court ordered the investigation report to be submitted to a juvenile court after medical evidence showed that Masih is only 14 years old. Masih was release on bond earlier and is in an undisclosed location for security purposes. (See prior posting.)

TRO Issued Against New Orleans Aggressive Solicitation Ordinance

For the second time this month (see prior posting), a federal lawsuit was filed challenging a provision in New Orleans "Aggressive Solicitation" ordinance that prohibits loitering or congregating on Bourbon Street in the French Quarter "for the purpose disseminating any social, political, or religious message between the hours of sunset and sunrise." This time the court entered a temporary restraining order barring enforcement of the law and setting a hearing for Oct. 1 on whether to issue a preliminary injunction. As reported by AP, the suit, filed last Thursday, was brought by the ACLU on behalf of Kelsey Nicole McCauley, a member of the Raven Ministries.

Sunday, September 23, 2012

Recent Prisoner Free Exercise Cases

In Jean-Pierre v. Bureau of Prisons, (3d Cir., Sept. 18, 2012), the 3rd Circuit upheld the dismissal of a Rastafarian prisoner's complaint over his prior suspension from the Certified Religious Diet Program

In Ind v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 130476 (D CO, Sept. 13, 2012), a Colorado federal district court rejected a magistrate Judge's recommendations (2012 U.S. Dist. LEXIS 130473, July 16, 2012) and refused to dismiss on either mootness or 11th Amendment grounds RLUIPA and free exercise claims by an inmate who is a follower of "Christian Separatism." Plaintiff complains about limitations on correspondence, books, magazines, and taking communion, as well as his classification as a member of a security threat group because of his religion.

In Gibson v. Pacheco, 2012 U.S. Dist. LEXIS 130477 (D CO, Sept. 13, 2012), a Colorado federal district court adopted two recommendations of a magistrate judge (2012 U.S. Dist. LEXIS 130479, March 14, 2012 and 2012 U.S. Dist. LEXIS 132409, April 16, 2012) and rejected various constitutional and RLUIPA challenges to rules and procedures for terminating an inmate's participation in the kosher diet program, but allowed him to move ahead with his 1st Amendment claim that authorities did not properly comply with these rules in removing him from the program.

In McKenzie v. Ellis, 2012 U.S. Dist. LEXIS 130973 (SD CA, Sept. 12, 2012), a California federal district court adopted in part and rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 130974, May 15, 2012), and dismissed complaints by a Rastafarian inmate that he was denied a special religious diet during two time periods.

In Anderson v. Bilbo, 2012 U.S. Dist. LEXIS 130941 (WD OK, Sept. 7, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 130943, Aug. 15, 2012), and dismissed complaints by an inmate that he was served pork a few times in violation of his non-pork diet which he maintained for religious reasons (which he never documented).

Kushner v. Keller, 2012 U.S. Dist. LEXIS 132292 (ED NC, Sept. 17, 2012), is a damage action by a former state inmate against authorities for failing to provide him with kosher meals at one facility at which he was incarcerated. A North Carolina federal district court dismissed plaintiff's RFRA and RLUIPA claims, and his 1st Amendment claims against several defendants on qualified immunity grounds. The court found that factual issues remained for trial as to his remaining free exercise claims.

In Pokrzywinski v. Davenport, 2012 U.S. Dist. LEXIS 132118 (ND AL, Sept. 17, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132117, Aug. 20, 2012) and rejected a Native American inmate's complaint that his rights were violated when the warden extinguished a sacred fire during a Native American sweat lodge ceremony because the fire had become too large. Inmates (but without plaintiff's participation) immediately rebuilt a smaller fire.

In Turner-Bey v. Maynard, 2012 U.S. Dist. LEXIS 133862 (D MD, Sept. 18, 2012), a Maryland federal district court rejected challenges by an inmate who is a member of the Moorish Science Temple of America to the Maryland prison system's religious diet policy. He objected that the only diet available to him that meets the requirements of Islamic law is a lacto-ovo vegetarian diet.

In Wilson v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 132930 (ED TX, Sept. 18, 2012), a Texas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132932, Aug. 16, 2012) and dismissed complaints by a blind Native American inmate that he was unable to participate in religious programming when he was temporarily transferred to a unit that had special programs for blind prisoners, but did not have Native American religious programming.

In Boyd v. Carney, 2012 U.S. Dist. LEXIS 133387 (WD WA, Aug. 1, 2012), a Washington federal magistrate judge recommended dismissing a inmate's complaint that his rights were violated when defendants changed his mandatory Halal meat diet to a metabolic diet.

Illinois Appeals Court Issues Narrow Injunction Protecting Pharmacists' Conscience Rights

In Morr-Fitz, Inc. v. Quinn, (IL App., Sept. 20, 2012), an Illinois appellate court narrowed the scope of an injunction that had been issued by a trial court preventing enforcement of an Illinois State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception. (See prior posting.) Avoiding the constitutional issues, the appellate court held that Illinois' Health Care Right of Conscience Act applies to pharmacists and pharmacies and protects plaintiffs' decisions not to dispense emergency contraceptives due to their conscience beliefs. However the trial court's injunction barring enforcement of the rule even against non-objecting pharmacies was held to be overly broad. The appellate court concluded: "We modify the injunction so it enjoins defendants from enforcing the Current Rule against these plaintiffs, who have conscience-based objections to the Current Rule." The Chicago Tribune reports on the decision.

Juvenile Court's Vaccination Order Did Not Violate Mother's Free Exercise Rights

In Schenker v. County of Tuscarawas, (ND OH, Sept. 14, 2012), an Ohio federal district court rejected a mother's claim that a state juvenile court infringed her free exercise rights by requiring her children to be vaccinated in violation of her religious beliefs. The state court's order came as part of proceedings finding the children neglected and dependent and placing them in the custody of child welfare authorities.

Saturday, September 22, 2012

German Bishops Decree Consequences For Catholics Who Opt Out of Church Taxes

Germany's Conference of Catholic Bishops on Thursday issued a Decree and Pastoral letter providing that those who opt out of Germany's church tax will be ineligible to participate in a wide variety of Church sacraments and activities. (Press release and links to full text of documents in German.) Germans who register with the government as Catholics, Protestants or Jews are assessed an additional 8% to 9% of their income tax bill to support their religious organizations. However Germans can avoid this additional tax by filing a declaration with their local tax office stating that they are leaving their faith community. Growing numbers are filing this opt out. This threatens the 5 billion Euros ($6.5 billion US) realized by the Catholic Church from the tax. In their latest decree (which was approved in advance by the Vatican), the German bishops say that "one cannot partly leave the Church." According to Reuters, the decree provides that:

Catholics who leave can no longer receive sacraments, except for a special blessing before death, the decree states.

They cannot work in the church or its institutions, such as schools and hospitals, or be active in church-sponsored associations such as charity groups or choirs.

They cannot be godparents for Catholic children and must get a bishop's permission to marry a Catholic in a church ceremony. "If the person who left the Church shows no sign of repentance before death, a religious burial can be refused.

[Thanks to Scott Mange for the lead.]

Catholic Church In Australian State Reports To Parliament On Past Child Sex Abuse Data

In the Australian state of Victoria, the state Parliament's Family and Community Development Committee is conducting an inquiry on the handling of child abuse by religious and other organizations. The deadline for submissions of written statements and reports to the Committee was Friday. In a press release Friday, the Archbishop of Melbourne announced on that he would file a report titled Facing the Truth on behalf of the leaders of the Catholic Church in Victoria. While the full report has not been publicly released, the press release says that:

In the past 16 years, about 620 cases of criminal child abuse have been upheld by the Church in Victoria. Most claims relate to incidents from 30 and up to 80 years ago. The Church has received very few complaints of abuse that has taken place since 1990.

The press release also renews the Church's apology to victims and says the report details the changes that have been made in dealing with victims and offenders. The Australian reports on the largely critical reactions of victims and their advocates to the Church's report.

Hostility To Religious Practices Rises In Many Countries, Including U.S.

On Thursday, the Pew Forum on Religion & Public Life released a third in a series of reports on the extent to which governments and societies around the world restrict religious practices. This latest report, titled Rising Tide of Restrictions on Religion, traces changes in religious restrictions from mid-2009 to mid-2010. As of mid-2010, eighteen countries had very high levels of governmental restrictions on religion, while 15 countries had high levels of non-governmental social hostility. Between 2009 and 2010, 66% of countries showed an overall increase in difficulties faced by religious groups, while 28% showed a decrease. For the year, the United States showed a significant increase in both governmental restrictions and social hostility. According to the report:

This included incidents in which individuals were prevented from wearing certain religious attire or symbols, including beards, in some judicial settings or in prisons, penitentiaries or other correctional facilities.... Some religious groups in the U.S. also faced difficulties in obtaining zoning permits to build or expand houses of worship, religious schools or other religious institutions.... [A]t least one state sought to restrict the application of Islamic or sharia law. And, for the first time, [it was] ... reported that some level of government in the U.S. had imposed limits on conversion... [A]t the Southport Correctional Facility, an ultra-maximum security prison near Elmira, N.Y.,... a prisoner was denied the right to change his religious designation to Muslim.

.... A key factor behind the increase in the U.S. score on the Social Hostilities Index was a spike in religion-related terrorist attacks in the United States.... Other forms of social hostilities ... also increased.... In Murfreesboro, Tenn. ... some county residents attempted to block the construction of a mosque ... by claiming ... that Islam is a “political ideology rather than a religion” and that “mosques are political rather than religious in nature..... The increase in social hostilities in the U.S. also reflects a rise in the number of reported religion-related workplace discrimination complaints....

[Thanks to First Things blog for the lead.]

Friday, September 21, 2012

Deadly Protests Over Anti-Muslim Video Continue Despite Attempts to Keep Them Peaceful

According to the Christian Science Monitor, today protests over the controversial video Innocence of Muslims turned deadly in Pakistan as 17 people were killed and dozens were injured. The Pakistani government had declared today "Love for the Prophet Day" and had encouraged peaceful protests. The U.S. Embassy spent $70,000 on Pakistani TV ads showing President Obama and Secretary of State Clinton denouncing the video. The ads were in English with Urdu subtitles. Meanwhile, ABC News surveys the demonstrations against the film in a dozen countries around the world which have led to the deaths of at least 47 people.

UPDATE: Pakistan's Railways Minister Ghulam Ahmed Bilour on Saturday, speaking for himself and not the government, offered a reward to members of the Taliban and al-Qaeda if they would take part a "noble deed". As reported by al-Jazeera, Bilour said: "I announce today that this blasphemer who has abused the holy prophet, if somebody will kill him, I will give that person a prize of $100,000." Meanwhile, as reported Saturday by CNN, Egypt's influential Grand Mufti, Ali Gomaa, while strongly criticizing the video, called for Muslims to react peacefully, saying: "These cartoons spread hatred, and we call for peace." He urged Muslims to react as the Prophet himself would, ""through patience and wisdom."

Colombia's Constitutional Court Says No Bible Quotes To Support Legal Decisions

AP reports that Colombia's Constitutional Court this week released a Directive it issued in June that prohibits courts in the country from using quotations from religious texts to directly support the reasoning for a decision or judgment. However, religious quotations can be used to explain a point of view. The ruling came in a labor court case in which the judge's opinion included a Biblical quotation: "In the case of justice, it shouldn't even favour the poor." The Constitutional Court said that judges "are obliged to respect the principle of secularism that characterizes the Colombian state," and that decisions "must be devoid of any expression suggesting a bias based on religious beliefs or personal convictions of the judicial officer."

Preacher Sues Challenging Part of New Orleans Aggressive Solicitation Law

Last year, New Orleans (LA) enacted an extensive "Aggressive Solicitation" ordinance applicable to the French Quarter. (New Orleans City Code Sec. 54-419). Yesterday, the pastor of a church in the French Quarter who regularly preaches and hands out tracts or carries signs on the streets in the area filed a federal lawsuit challenging one provision in the ordinance that prohibits loitering or congregating on Bourbon Street "for the purpose disseminating any social, political, or religious message between the hours of sunset and sunrise." According to the complaint (full text) in Gros v. City of New Orleans, (ED LA, filed 9/20/2012): "Because Pastor Gros firmly believes a large number of people found on Bourbon Street at night desperately need to have saving faith in Jesus Christ, he wants to go there at that time and share the gospel message with them." The complaint contends that the challenged provision is an unconstitutional content-based restriction on speech. It also argues that the ban on "social" messages is void for vagueness. Plaintiffs also filed a motion for a preliminary injunction. (Full text). Alliance Defending Freedom issued a press release announcing the filing of the lawsuit. AP also reports on the lawsuit.

16 Amish Convicted In Beard Cutting Assaults

According to McClatchy Newspapers, a federal court jury in Cleveland, Ohio yesterday convicted 16 members of the Bergholz Amish sect of conspiring to violate the Matthew Shepard-James Byrd, Jr. Hate Crimes Prevention Act in a series of assaults last year on members of a rival Amish group. The Act prohibits any person from willfully causing, or attempting to cause, bodily injury by use of a dangerous weapon, because of the actual or perceived religion of that person. Defendants used scissors and battery powered clippers to cut the beards of male victims and the hair of females. Defense lawyers, who did not call any witnesses at trial, argued that the attacks were only motivated by love, to save other Amish from their incorrect ways. A Department of Justice Release details that in addition to the conspiracy charges, various of the defendant were convicted of hate crimes involving kidnapping, concealing evidence and making false statements to the FBI. A sentencing hearing is scheduled for January. (See prior related posting.)