Religion Clause

Monday, October 22, 2012

Sunday, October 21, 2012

Recent Prisoner Free Exercise Cases

In Peterson v. Lampert, (10th Cir., Oct. 15, 2012), the 10th Circuit dismissed an inmate's due process, free exercise and RLUIPA complaints growing out of the loss of religious personal property, including a crystal wand, tarot cards, feathers, incense, a prayer cloth, and a satanic Bible, after a transfer from one facility to another.

In White v. Lindermen, 2012 U.S. Dist. LEXIS 150107 (D AZ, Oct. 18, 2012), an Arizona federal district court denied a Messianic Jewish inmate a preliminary injunction he sought to allow his family members to purchase religious items, including incense, scented oils, candles, a kippah, a talit, and herbs, for him from a vendor.

In McDaniel v. Fizer, 2012 U.S. Dist. LEXIS 147900 (D AZ, Oct. 15, 2012), an Arizona federal district court dismissed, with leave to amend, a Muslim inmate's complaint that his lacto-vegetarian diet was replaced by a vegan diet, and that he was being denied a kosher diet.

In Coulter v. Studeny, 2012 U.S. Dist. LEXIS 147230 (WD PA, Oct. 12, 2012), a Pennsylvania federal district court largely adopted a magistrate' recommendations (2012 U.S. Dist. LEXIS 150473, Sept. 21, 2012) and, among other things, rejected plaintiff's claim that her free exercise rights were violated by a special condition of her probation. She claimed that a 10 p.m. to 6 a.m. curfew prevented her from attending unspecified religious services.

In Rice v. Curry, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed without prejudice for failure to exhaust administrative remedies a claim by an inmate who was a member of the Muslim Ansar El Mohammad faith that AEM Muslims were not provided a Suhoor meal during Ramadan. The court dismissed on the merits plaintiff's complaint that AEM Muslims were not granted separate access to the interfaith chapel and that the prison refused to hire an AEM imam.

In Palermo v. Libby, 2012 U.S. Dist. LEXIS 148577 (D NH, Sept. 12, 2012), a New Hampshire federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was denied a religious diet, religious reading materials, and ritual items, and an equal protection claim that he was denied religious reading materials and ritual items.

House of Lords Debates Placing Restrictions On Sharia Arbitration Panels

As reported today by The Telegraph, in Britain on Friday the House of Lords debated a bill to place restrictions on Sharia arbitration tribunals. (Full text of Lords' debate.) The proposed Arbitration and Mediation Services (Equality) Bill would add several provisions to British law. The Equality Act would be amended to prohibit anyone providing arbitration services from doing anything that constitutes discrimination, harassment or victimization on grounds of sex. The Arbitration Act would be amended to bar any arbitration agreement or process that gives more weight to the testimony of men than women, or which gives women fewer inheritance or property rights. The amendments would also exclude from arbitration anything within the jurisdiction of the criminal or family courts. The Family Law Act would be amended to allow a court to set aside any negotiated or mediated agreement if it concludes that one party's consent was not genuine. The proposed bill also takes aim at informal Sharia councils that deal with divorce and child custody. It prohibits anyone from purporting to determine family law or criminal maters in arbitration, and from falsely purporting to exercise the power of a court to make legally binding rulings.

Miami Archdiocese Sues Over Contraceptive Coverage Mandate

On Friday, the Catholic Archdiocese of Miami announced that, along with its Catholic Health Services and Catholic Hospice, it has filed a federal lawsuit against the Department of Health and Human Services challenging the contraceptive coverage mandate imposed under the Affordable Care Act. It says that because the Archdiocese is self-insured, the Obama administration's compromise announced in February to have insurance companies pay for objectionable services is not a solution. In remarks (full text), Archbishop Thomas Wenski said that the suit joins nearly 50 other across the country filed by Catholic dioceses, charities, hospitals and schools, in coordination with the Jones Day law firm that is providing its services pro bono. At a news conference, the Archbishop said that the Catholic Church supports universal health care, but a plan "should kill no one and it should cover everyone." He added that the Affordable Care Act fails this test by requirmg employers to provide drugs and services that result in the killing of unborn children, and,on the other hand, excluding "millions of immigrants." Catholic News Agency reports on the lawsuit.

Saturday, October 20, 2012

School Quickly Ends Pastor's Access To Cafeteria After Suit Is Filed

Within minutes after a lawsuit was filed by the ACLU yesterday, a Fort Wayne, Indiana middle school agreed to stop its practice of allowing a local youth pastor to regularly visit the school's cafeteria during lunch, where he stands in a prominent place, hands out materials and talks with students who are required to eat in the cafeteria. The Fort Wayne News-Sentinel reports that the suit was filed by parents of an 11-year old who attends Summit Middle School in the Southwest Allen County school district who say no other outsider is given this kind of access to the cafeteria. The ACLU says the lawsuit will be dropped once it receives formal notice from the school district that it is changing its practices.

IRS Has Suspended Church Audits Until Rule Changes Are Finalized

BNA Daily Report for Executives dated 10/22/2012 (subscription required) reports that the Internal Revenue Service has temporarily suspended tax audits of churches pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) At an American Law Institute Continuing Legal Education conference, IRS speaker Russell Renwicks, area group manager from the Mid-Atlantic region of the Tax-Exempt and Government Entities division, said the IRS has been bombarded with complaints about churches becoming involved in the elections, but it has been unable to respond even to potentially egregious cases. The rule changes are necessitated by a 2009 Minnesota federal district court ruling. (See prior posting.)

Another Suit Challenges Contraceptive Coverage Mandate of ACA

Yesterday, yet another federal lawsuit was filed challenging on RFRA, 1st Amendment and Administrative Procedure Act grounds the contraception coverage mandate under the Affordable Care Act. The complaint (full text) in Griesedieck v. U.S. Department of Health and Human Services, (WD MO, filed 10/19/2012), alleges that the two individual plaintiffs, who are Evangelical Christians, own a controlling interest in four industrial companies that employ a total of 175 people. Citing the requirement that the companies' policies cover drugs that have a post-fertilization mechanism of action (such as Plan B and Ella), plaintiffs assert that:

As evangelical Christians, Plaintiffs believe in the sanctity of human life from the moment of conception. They believe it would be sinful to for them to pay for services that have a significant risk of causing the death of embryonic human lives.

American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Friday, October 19, 2012

In Mali, Islamists Destroy Historic Tombs They Consider Idolatrous

According to CNN, in northern Mali, for the fourth time this year al-Qeda linked Ansar Dine rebels have destroyed historic tombs. Some 30 armed fighters arrived in Timbuktu yesterday to reinforce local Islamists and destroyed three mausolea that have been designated by the United Nations as World Heritage Sites. The Islamists consider these Sufi shrines to be idolatrous and thus religiously prohibited.

Appeals Court: Accused Ft. Hood Shooter Can Be Forcibly Shaved

Accused Fort Hood shooter, Maj. Nadal Hasan, who has been seeking the right to wear a beard for religious reasons at his court martial trial, lost yesterday in the U.S. Army Court of Criminal Appeals. In Hasan v. United States, (Army Ct. Cr. App., Oct. 18, 2012), an opinion of 5 judges held that Hasan's petition for a writ of prohibition should be denied. Hasan sought to prevent the government from forcibly shaving him after the military judge at his court martial ordered Hasan to be clean shaven for all subsequent pretrial proceedings and for his trial. (See prior posting.) The majority concluded that the trial judge did not commit clear error in concluding that Hasan was not necessarily growing his beard for religious reasons. The majority went on to hold that even if Hasan demonstrated that he was wearing a beard out of sincere religious conviction, the Army has compelling interests in requiring him to shave, and no less restrictive means are available to accomplish these interests:

The Army has a compelling interest to ensure uniformity, good order and discipline.... The Army has a further interest in the fair and proper administration of military justice. We agree with the military judge's conclusion that petitioner's wearing of the beard denigrates the dignity, order and decorum of the court martial and is disruptive under the current posture of the case. Furthermore, in front of a military panel, it is undeniable that petitioner's failure to comply with Army grooming regulations without explanation of a suitable exception would cast him in a negative light. In this respect, the military judge has the authority ... to safeguard petitioner against the injection of prejudice into the court-martial process as a result, even where petitioner consents to that prejudice.

Two judges joined in an opinion dissenting in part, arguing that the court-martial judge should have merely ordered the government to ensure that the defendant was in proper uniform for the trial, leaving decisions about forced shaving or granting an exception to grooming regulations to the chain of command. The dissenters would not only grant the writ of prohibition invalidating the military judge's order, but would also disqualify the judge from further participation in the case because his action reasonably put into question his impartiality. Stars and Stripes reports on the decision.

Court Issues Temporary Injunction Approving Cheerleaders' Bible Banners

Just a day after Texas attorney general filed a petition to intervene on behalf of high school cheerleaders who wish to continue to display their own banners and run-throughs featuring Bible verses (see prior posting), a Texas state trial judge issued a temporary injunction granting the cheerleaders' request. In Matthews v. Kountze Independent School District, (TX Dist. Ct., Oct. 18, 2012), the court concluded that the school district was prohibiting private religious expression. It ordered the district to cease and desist from preventing the cheerleaders from displaying banners or run-throughs at sporting events, or censoring the sentiments displayed on them. In a press release applauding the decision, Texas Attorney General Greg Abbott said:

Students' ability to express their religious views adds to the diversity of thought that has made this country so strong. Texas law supports students' right to freely express their religious beliefs without discrimination. We will not allow groups or individuals to wage a war on religion by trying to intimidate students into embracing a secular mindset.

According to a New York Times report on the decision, an Anti-Defamation League spokesman called the decision misguided, arguing that the banners are a school-sponsored religious message.

British Court Rejects Conscience Defense In B&B Owner's Refusal To Rent Room To Gay Couple

A trial court in Britain yesterday held that a gay couple suffered unlawful discrimination when the Christian owner of a bed and breakfast, Susanne Wilkinson, refused to allow them to stay in a double room because of the her religious views. The Reading Crown Court awarded each man damages of £1800 according to the London Telegraph. The court, in finding that defendant had violated regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007, said in part:

The business is conducted from her home but it is still a business with a significant number of guests. I do not agree with the submission that if the restriction is unlawful the defendant would have to remove herself from public life.

My conclusion is that the application of the regulations to the defendant bed and breakfast establishment and the finding that the refusal of the double room constituted direct discrimination, are not in breach of her [ECHR] Article 9 Rights [freedom of conscience and religion].

Thursday, October 18, 2012

2nd Circuit in 2-1 Decision Finds DOMA Unconstitutional

In Windsor v. United States, (2d Cir., Oct. 18, 2012), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that Section 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved. In concluding, Chief Judge Jacobs, writing for the majority said:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

Judge Straub dissented, arguing first that the issue is controlled by the Supreme Court's summary dismissal of a similar challenge in 1972 in Baker v. Nelson. He concluded further that DOMA should be subject only to rational basis review, and that several of the rationales advanced for the law satisfy that level of scrutiny.

AP reports on the decision. In May, the 1st Circuit also found DOMA unconstitutional. (See prior posting.)

Venice Commission Opinion Criticizes Azerbaijan Law On Religion; Government Responds

On Oct. 15, the European Union's Venice Commission along with the OSCE's Office for Democratic Institutions and Human Rights issued a Joint Opinion (Opinion 681 / 2012) finding numerous problems with Azerbaijan's 2011 Law on Freedom of Religious Belief. The Opinion concludes that the Law "sets a legal framework which is in several aspects contrary to international standards and would benefit from additional revisions in order to meet these standards." The Opinion sets out 15 key recommendations for change, along with 9 additional recommendations. The key recommendations include items such as expanding the law to include "belief" as well as religion, eliminating the ban on proselytism by foreigners, providing for alternative service for conscientious objectors and liberalizing restrictions on religious organizations. The government of Azerbaijan delivered its response to the Joint Opinion on Oct. 16 (full text). According to a report published in Turkish Weekly, the Head of Azerbaijani Presidential Administration Social and Political Department says he thinks that the Venice Commission now believes that the law fully meets the European standards.

8th Circuit En Banc Upholds Funeral Picketing Ordinance

In Phelps-Roper v. City of Manchester, (8th Cir., Oct. 16, 2012), the U.S. 8th Circuit Court of Appeals sitting en banc upheld against facial First Amendment challenges the current version of a Manchester, Missouri ordinance regulating picketing at funerals. The suit was brought by members of the Wesstboro Baptist Church which has a history of picketing veterans' funerals with signs deploring homosexuality. Finding that challenges to earlier versions of the ordinance are moot, the court held that the current version is a valid content-neutral time, place, and manner regulation. The law bans picketing or other disruptive activity within 300 feet of a funeral or burial service during the period from 1 hour before to 1 hour after the service. Applying intermediate scrutiny, the court concluded that:

mourners attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes... and for patients entering a medical facility.... Mourners have a similarly "significant and legitimate" interest in avoiding "potential trauma" when attending a funeral or burial.... Mourners ... must ... be in a certain place at a certain time to participate in a funeral or burial and are therefore unable to avoid unwelcome speech at that place and time. A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....

Judge Smith wrote a separate concurring opinion "to express concern about the extension of the unique protection afforded the sanctuary of the home to funerals and burials." He argued that emotional offensiveness alone should not be enough to justify restriction of otherwise lawful speech. [Thanks to Steven Jamar via Religionlaw for the lead.]

Swedish Appeals Court Permits Home Schooling Of Chabad Children

According to Chabad Lubavitch News, an appellate court in Sweden yesterday struck down a law that barred Chabad parents from home schooling their children through Chabad's International Shluchim Online School and private lessons. The law requiring all students to attend state schools except in extraordinary circumstances was originally enacted to protect immigrant children who were being denied an education and who grew up illiterate. However, the rabbi and his wife in Gothenburg who filed the lawsuit were providing a high quality education to their children. The court said that the government's refusal to recognize religious objections to state schools contravenes Sweden's international obligations. (See prior related posting.)

Texas AG Petitions To Intervene In Case To Support Cheerleaders' Signs With Bible Verses

As previously reported, last month a Texas state court issued a temporary restraining order allowing Kountze (TX) Independent School District football cheerleaders to continue to display banners, including run-through banners, containing Bible verses. The banners are not made on school property and no school money is used to make them. The Texas Association of School Boards had advised the school district to ban the run-throughs after a complaint from the Freedom From Religion Foundation. Yesterday Texas Attorney General Greg Abbott filed a petition to intervene (full text) in the case to support the cheerleaders. In a press release announcing the filing of the petition to intervene, Abbott referred to the Freedom From Religion Foundation as "an organization with a reputation for bullying school districts." The Houston Chronicle reports on the attorney general's action.

Church Nursery School Teacher Sues After Being Fired For Living With Fiancee

The Macon (GA) Telegraph reports on a lawsuit filed in a Georgia federal district court on Oct. 3 by a woman who claims religious and gender discrimination in her termination as nursery school coordinator at Friendship Baptist Church in Warner Robins, Georgia. Plaintiff Jessica Atkinson says that she was asked to resign after church officials complained to her about her relationship with her fiancée, asked her what she planned to do about living in sin and whether she was being a good Christian. Before filing suit, Atkinson filed a complaint with the EEOC.

Suit Charges Evangelical Church Officials Abetted Sexual Abuse of Children By Church Members

A suit was filed yesterday in state court in Montgomery County, Maryland against six pastors and church officials of the Sovereign Grace Ministries, a group of some 80 evangelical churches. AP reports that the 3 female plaintiffs:

allege a conspiracy spanning more than two decades to conceal sexual abuse committed by church members. They accuse church representatives of permitting suspected pedophiles to interact with children, supplying them with free legal advice to avoid prosecution and forcing victims to meet with and "forgive" the person that had molested them.....

The lawsuit, filed in Montgomery County, Md., includes claims of intentional infliction of emotional distress, negligence and conspiracy, among others. It says there are other victims, both male and female, who have raised allegations but are not yet identified as named plaintiffs.

Two of the current plaintiffs allege they were abused as toddlers.

Court Rejects Biblical Objection To Conviction Under Law Defining Defendant As A "Person"

In Fond Du Lac County v. Manke, (WI App., Oct. 17, 2012), a Wisconsin state appeals court rejected an unusual religious liberty defense to a speeding ticket. Defendant Jeffrey Manke was convicted of violating a state statute that prohibits any "person" from driving over 55 miles per hour unless a higher speed limit is posted. Manke argued that according to the Bible, he is a "man", not a "person," so that convicting him as a person violates his religion and his due process rights. The appeals court held that as a man, defendant met the definition of person under the statute. The Fox 11 News reports on the decision.

Wednesday, October 17, 2012

Cert. Filed In Challenge To Ban On Carrying Firearms In Church

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in GeorgiaCarry.org, Inc. v. State of Georgia. In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The petition asks the Supreme Court to review the case and rule that a law that specifically targets places of worship may violate the free exercise clause even if it does not burden a sincerely held religious belief. The Atlanta Journal Constitution reports on the filing of the cert. petition.