Subsidy To Churches Raises Establishment Clause Issues For Publicly Owned Electric Company

Santiago-Ramos v. Autoridad De Energia Electrica, (D PR, Sept. 18, 2012), is a lawsuit by an economic development corporation and one of its members against the Puerto Rico Electric Power Authority alleging broadly that the public electric power company is used by the political party in power to favor various interests at the expense of ordinary consumers of electricity.  The complaint alleges a number of statutory and constitutional violations. Among the claims that the court refused to dismiss was the contention that the PREPA has promoted religion in violation of the Establishment Clause by giving $3,500,000 in subsidies to churches (and other non-profit organizations).

Court Says Questions Remain On Accommodation of Hebrew Israelite Employee

In Batson v. Branch Banking and Trust Company, (D MD, Sept. 25, 2012), a Maryland federal district court denied defendant's motion for summary judgment, finding that substantial questions of fact remain as to whether a bank reasonably accommodated the religious needs of a Hebrew Israelite teller who was fired for not being willing to work on alternate Saturdays. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

5th Circuit Reverses Denial of Preliminary Injunction In Church's RLUIPA Suit

In Opulent Life Church v. City of Holly Springs Mississippi, (5th Cir., Sept. 27, 2012), the U.S. 5th Circuit Court of Appeals vacated a Mississippi federal district court's denial of a preliminary injunction in a Christian church's RLUIPA zoning suit and remanded the case for further findings.  The appeals court held that the Opulent Life Church had shown irreparable harm by being unable to use a building it had agreed to lease.  On the eve of oral arguments in the 5th Circuit, the city repealed the zoning conditions that had created problems for the church and replaced them with a total ban on religious congregations in the Business Courthouse Square District where the church's building was located.  Rejecting mootness and ripeness challenges to the lawsuit, the appeals court defined the 5th Circuit's approach to the "equal terms" clause of the Religious Land Use and Institutionalized Persons Act. The court must determine:

whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is “similarly situated” with respect to the stated purpose [of the regulation].

The court remanded the case for the district court to decide:

(1) whether Opulent Life is likely to succeed on its claims challenging the validity of the newly adopted religious facilities ban; (2) whether the harm Opulent Life will suffer absent a preliminary injunction outweighs the harm an injunction will cause Holly Springs; (3) the amount of actual damages Opulent Life suffered ... and (4)... whether Opulent Life should be awarded reasonable attorneys fees....

Suit Over Amish Building Code Compliance Settled

A settlement has been reached between the Swartzentruber Amish community and the Town of Morristown, New York over building code compliance.  In 2009, eleven Amish families filed suit in federal court challenging enforcement the town's requirements that they submit architect-stamped construction plans, install battery-powered smoke detectors, use hurricane tie-downs and  construct frost-proof foundations. The Amish said that these requirements violate their religious beliefs. (See prior posting.) The Watertown Daily Times reports that in a compromise the town has dropped building code violation charges.  The town will accept Amish cellar construction as meeting code requirements, while the Amish will have smoke detectors installed in their homes during inspections and will use an approved method to secure their roofs.  The parties agreed to dismiss the federal lawsuit and the court issued an order doing so on Sept. 21. [Thanks to Blog From the Capital for the lead.]

FFRF Sues Another Pennsylvania School District Over 10 Commandments Monument

The Freedom From Religion Foundation has announced that it filed suit in federal court yesterday against the Connellsville, Pennsylvania school district challenging the constitutionality of a Ten Commandments monument that has stood near the auditorium entrance of a now-junior high school building for over 50 years. When the monument was presented to the school by the Fraternal Order of Eagles, the school was a high school.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, filed Sept. 27, 2012) alleges that originally school officials had agreed to move the monument to the grounds of a nearby church, but they changed their minds after community opposition to the decision. The monument is now covered with a wooden box.  Earlier this month, FFRF filed a similar lawsuit against another Pennsylvania school district. (See prior posting.)

Chabad Sues Northwestern University For Discrimination After University Ends Affiliation

According to Courthouse News Service, last week the Chabad House at Northwestern University filed a religious discrimination lawsuit against the University after the University informed Chabad that it was revoking its university affiliation. The complaint (full text) in Lubavitch-Chabad of Illinois, Inc. v. Northwestrn University, (ND IL, filed 9/21/ 2012) says that the University's action terminates Chabad Rabbi Dov Hillel Klein's university chaplaincy positions. Also the University seeks to bar Chabad from contracting with a food vendor to facilitate the sale of kosher food on campus and to bar Chabad from sponsoring the Birthright Israel trip for Northwestern students. The University also will ask a fraternity to drop Rabbi Klein as its adviser. According to the Daily Northwestern, the University's action was taken because Chabad serves alcohol at student events in violation of University policy. The complaint in the lawsuit alleges:

many other campus organizations including religious organizations, had committed the same acts for which Rabbi Klein stood falsely accused.  The University was aware of this, and chose only to disassociate with Chabad. Those actions constituted discriminatory and disparate treatment taken solely on the basis of Rabbi Klein’s ... affiliation with Chabad Chassidism.

[Thanks to Vos Iz Neias? for the lead.]

Man Behind Inflammatory Anti-Muslim Video Arrested For Probation Violations

ABC News and the Los Angeles Times report that yesterday federal probation officials in Los Angeles (CA) arrested Nakoula Basseley Nakoula, the man purportedly behind the video "Innocence of Muslims" that has sparked demonstrations around the world. (See prior posting.) Nakoula, under the terms of his 2010 probation for bank fraud, was not to use or own devices with access to the Internet without approval of his probation officer, and was not to enlist others access the Internet for him. Magistrate Judge Suzanne Segal ordered Nakoula to be held in custody, citing his lengthy pattern of deception. Prosecutors argued that he is a flight risk.

Egypt Charges U.S. Embassy Protester Under Blasphemy Law

As previously reported, two weeks ago crowds demonstrated and attacked the U.S. embassy in Egypt to protest the video Innocence of Muslims. Now, according to AP, on Tuesday Egyptian prosecutors referred to trial on charges of insulting "heavenly" religions Ahmed Mohammed Abdullah who was filmed tearing up an English copy of the Bible during the embassy protest. Abdullah is well-known for having created a new TV channel operated mainly women veiled from head to toe with only their eyes showing.  Egypt's blasphemy law covering heavenly religions is generally seen as applying to Islam, Christianity and Judaism, but in the past has been used mostly by critics of Islam.  Abdullah claims he has not violated the blasphemy law because he targeted the book of a specific group of Christians who have offended Islam.  Apparently Abdullah's son and a journalist who interviewed him were also charged under the blasphemy law.

German Court Says State Will Not Regard Those Who Stop Paying Church Taxes As Church Members

In Germany, Leipzig's Federal Administrative Court ruled yesterday that a person will not be considered by the state to be a member of the Catholic Church if he opts out of paying Church taxes. However how the Church deals internally with a person who does not pay Church taxes is up to religious authorities.  According to Deutsche Welle in an article and an op-ed, the ruling comes in a case filed in 2007 by a retired professor of church law who had insisted that he would no longer pay the church tax but would still remain a Catholic and continue praying and receiving Holy Communion.  At that time there was some disagreement between the Vatican and the German bishops over the definition of Church membership. However, last week, the German Catholic bishops issued a ruling that had been approved in advance by the Vatican that said those who opt out of the Church tax cannot participate in most aspects of the Catholic Church. (See prior posting.)

Today Was Annual "See You At The Pole" Events

As reported by Christian Post, today was the 22nd annual "See You At The Pole" student prayer event at schools around the country and abroad.  Alliance Defending Freedom announced that it stands ready to provide free defense for any students who have been prevented or discouraged by public school officials from participating in the event. ADF has also released a legal memo defending the constitutionality of student participation and promotion of the event.

Judge Sentences Defendant To Write Report on Hinduism

As reported by MLive, in Bay County, Michigan on Monday, 26-year old Delane D. Bell was up for sentencing on a charge of ethnic intimidation to which he plead guilty last March. The charge stemmed from an incident outside a bar in which Bell  shouted "jihad" and "Osama bin Laden" at two Hindu men, and then punched one of the men and hit the other’s car. At the time of the plea, Bay County Circuit Judge Joseph K. Sheeran ordered Bell to write a 10-page report on the greatest accomplishments of Muslims. Now, the judge sentenced Bell to 2 years probation, on the condition that he write another 10-page report, this time on Hinduism. The judge added that this report should show more originality than his last one did.

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.

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.