Court Bashes Prisoner Grievance System In Free Exercise Case

An Illinois federal district court this week, in a prisoner free exercise case, adopted a magistrate's report and recommendation that is highly critical of the Illinois prison system's administrative grievance system. In Spivey v. Love, 2012 U.S. Dist. LEXIS 151705 (SD IL, Oct. 23, 2012), magistrate's recommendation at 2012 U.S. Dist. LEXIS 152179, Sept. 14, 2012, an inmate sued complaining that as he was transferred to 3 different Illinois correctional facilities, his religious affiliation got incorrectly listed as Protestant rather than Jewish, and he was unable to get the error corrected.  In the process he was also denied a vegetarian diet and his Jewish Bible was confiscated. Defendants moved for summary judgment, arguing that the inmate had failed to exhaust his administrative remedies through the prison grievance system.  The magistrate's opinion (which the court adopted) denied defendants' motion, saying the following:

The IDOC has a three-step process that prisoners under their jurisdiction are required to follow in order to exhaust administrative remedies.....

The circumstances of this case are illustrative of the all-to-common scenario in cases involving prison institutions under the authority of the IDOC of failed attempts by defendants in prisoner litigation to successfully litigate the failure to exhaust administrative remedies defense. Counsel for the defendants is hardly to blame for these failures. Rather, it is a reflection of the negligent handling of prisoner grievances within the prison institutions.

With the possible exception of ... step three, it appears as if there is no documented system for tracking grievances as they make their way through the various phases of exhaustion. Under the present system, a grievant must put his faith in prison staff to deliver the grievance to the appropriate location without receiving any type of return receipt verifying that the grievance had been delivered successfully. When the prisoner does not hear anything regarding the grievance, he must beg prison staff for morsels of information regarding its status (all of this while the 60-day clock for filing grievances is ticking). If the prisoner is fortunate enough to get a response from his counselor at step one, he must restart the process of relying on prison staff to get his grievance to the right place, again absent any verification of receipt. The present system causes loads of unnecessary confusion among both the grievant and the prison staff involved in processing the grievances. In addition, the absence clear information regarding what happened to a particular grievance makes defendant counsel's task of meeting their burden of proof on the exhaustion defense next to impossible.

It would seem apparent that this mass confusion could be eliminated by the implementation of a basic grievance tracking and receipt system.

NJ Civil Rights Head Affirms Administrative Law Judge's Holding of Violation For Refusing To Rent Facilities For Civil Union Ceremony

AP reports this week that the director of the New Jersey Division on Civil Rights has upheld a January ruling by an administrative law judge that the Methodist-affiliated Ocean Grove Camp Meeting Association violated the state's anti-discrimination laws when in 2007 it refused on religious grounds to rent out its boardwalk pavilion to a lesbian couple to use for their civil union ceremony. [Thanks to Alliance Alert for the lead.]

5th Circuit: Music Director's ADEA and ADA Claims Barred By Ministerial Exception Doctrine

In Cannata v. Catholic Diocese of Austin, (5th Cir., Oct. 24, 2012), the U.S. 5th Circuit Court of Appeals dismissed claims under the Age Discrimination in Employment Act and Americans With Disabilities Act brought against the Diocese of Austin by a former Music Director at a Catholic church. Plaintiff, Phillip Cannata, worked only evenings and weekends. He  oversaw the Music Department's budget, managed  the  sound  systems and maintained equipment and the music areas.  He also rehearsed with members of the choir and cantors and accompanied them on the piano during services while running the soundboard. Concluding that the Supreme Court's Hosanna-Tabor decision at least modifies prior 5th Circuit precedent, the court held that Cannata was a "minister" for purposes of the ministerial exception doctrine:

the church has the right to determine who will  participate  in  its  religious  ceremonies. Even  assuming  Cannata  was "merely" an accompanist, Appellees have established the importance of music to the celebration of Mass and Cannata’s role in the service.  Because Cannata performed an important function during the service, there is no genuine dispute that he played a role in furthering the mission of the church and conveying its message to  its  congregants.

Virginia Ballot Measure Will Let Legislators Accommodate Passover In Scheduling Veto Session

Connection Newspapers yesterday reported on a state constitutional amendment on the ballot in Virginia next month that is designed to allow the state legislature to avoid scheduling its annual veto consideration session in conflict with Passover.  (Full text of proposed amendment.) Currently Art. IV, Sec. 6 of Virginia's constitution requires the legislature to reconvene on the sixth Wednesday after adjournment "for the purpose of considering bills which may have been returned by the Governor with recommendations for their amendment and bills and items of appropriation bills which may have been returned by the Governor with his objections." Because of the limitations on the length of the regular legislative session also set out by the state constitution, the "veto session" often coincides with Passover.  The proposed amendment will allow the legislature by joint resolution to vote to delay its veto session by one week.

Scientologist Challenges Britain's Limits On Religious Buildings In Which Marriages Can Be Performed

Under British law, in England and Wales any building that has been certified as a place of religious worship under the Places of Worship Registration Act 1855 may then, under the Marriage Act 1949, be certified as a building in which marriages can be solemnized. However, Britain's Registrar General of Births, Deaths and Marriages refuses to recognize Church of Scientology chapels as a "places of worship" so individuals wanting to marry according to Scientology ritual must first be civilly married at a registrar's office and then have the marriage blessed on Scientology premises. The Independent reports on a lawsuit argued in London's High Court on Tuesday in which Scientologist Louise Hodkin charges that the refusal to recognize Scientology chapels violates the 2010 Equality Act. She wants to be married at London's elaborate Scientology headquarters. According to a report by the Press Association, the refusal by the Registrar's office to recognize Scientology chapels stems from a 1970 Court of Appeal decision, R v. Registrar General ex parte Segerdal, in which the court denied registration to Scientology buildings, holding that adherents come together primarily for instruction in a philosophy of human life, not for religious worship. In Tuesday's High Court arguments, plaintiff's counsel argued that the form of worship by Scientologists has evolved and is now materially different from what it was in 1970 when the Segerdal case was decided.

Court Enters Stipulated Stay of Enforcement In NYC Circumcision Regulation

Pursuant to a stipulation of the parties, a New York federal district court in Central Rabbinical Congress of the USA & Canada v. New York City Department of Health and Mental Hygiene, (SD NY, Oct. 23, 2012), entered a temporary stay of enforcement of the health department's newly adopted regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh). The enforcement stay remains in effect until Nov. 14 when oral arguments on plaintiffs' motion for a temporary restraining order are scheduled to be heard.  The Stipulation also provides that the city will not after that date take enforcement action as to any circumcision that took place before Nov. 14. The regulation is being challenged on free exercise and compelled speech grounds. (See prior related posting.)  Jewish Voice reports on the court's order.

Prof. Paul Kurtz, Secular Humanist Leader, Dies

Prof. Paul Kurtz, a leading figure in the secular humanist movement, died last Saturday at age 86. The New York Times carries an extensive obituary outlining his work.  Kurtz taught philosophy at the University of Buffalo from 1965 to 1991. He wrote dozens of books and articles, and founded the Center for Inquiry.  In 1973, Kurtz, along with Edwin H. Wilson, drafted Humanist Manifesto II, a document signed by 120 religious leaders, philosophers, scientists and writers. The document included this vision of the relationship between ideology and the state:

The separation of church and state and the separation of ideology and state are imperatives. The state should encourage maximum freedom for different moral, political, religious, and social values in society. It should not favor any particular religious bodies through the use of public monies, nor espouse a single ideology and function thereby as an instrument of propaganda or oppression, particularly against dissenters.

[Thanks to Scott Mange for the lead.] 

AU Asks IRS To Investigate Texas Church's Sign Supporting Romney

Americans United announced that on Tuesday it sent a letter (full text) to the Internal Revenue Service asking it to investigate whether a Leakey, Texas church has violated Internal Revenue Code prohibitions on non-profit organizations supporting or opposing political candidates.  Church in the Valley displayed a marquee sign reading: "Vote for the Mormon, Not the Muslim! The Capitalist, Not the Communist!" The sign was widely understood as support for Mitt Romney. The church's pastor said he put up the sign because he feels strongly about the election.

Canadian Appeals Court Finds Pastor's Anti-Gay Letter Did Not Violate Alberta's Hate Speech Law

In Lund v. Boissoin, (Ct. App. Alberta, Oct. 17, 2012), a 3-judge panel of the highest appeals court in the Canadian province of Alberta held that an anti-gay letter to the editor of a local newspaper written by Rev. Stephen Boissoin, executive director of the Concerned Christian Coalition, did not violate the province's hate speech law, even though the letter was "coarse, crude and insensitive."  The court said, in part:

Suffice to say that the letter is essentially an expression of Boissoin’s opinion that teaching children at school that homosexuality is normal, and that same sex families are equivalent to heterosexual families, is morally wrong and should not be tolerated.... And the aim of the letter was to stir apathetic people, who agreed with him, to his cause....

Does Boissoin’s condemnation of homosexuality, albeit in extreme and intemperate language, subject him to censorship by the human rights panel? The Act provides no exemption for religious leaders or public places of worship. If it is not possible to condemn sexual behaviour which is said to be central to the  identity of homosexuals, without discriminating against them and offending their human dignity, then is it possible for any pastor, priest, rabbi or imam to publicly declare that homosexuality is sinful and morally wrong? Or does it depend upon how polite the language of condemnation is?... The letter attempts to engage in public debate with respect to these matters, as the newspaper editor perceived when he deemed it worthy of publication.

Alliance Defending Freedom issued a press release reporting on the decision. (See prior related posting.

Suit Challenges Utah College's Treatment Of Christian Student Group

In Utah yesterday, a federal lawsuit was filed against Utah's Snow College (a public 2-year college) by a Christian student group that claims a school policy unconstitutionally treats student groups affiliated with religious institutions differently than other student groups.  The complaint (full text) in Solid Rock Christian Club v. Wyatt, (D UT, filed 10/22/2012) challenges both the rule that relegates to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, as well as limitations placed on plaintiffs' participation in the "Paint the Town" Homecoming activity.  In the activity, student groups get to paint the windows of participating local businesses to reflect the Homecoming spirit-- with this year's theme being "Then, Now and Forever."  School officials told Solid Rock Christian Club that it could not use religious symbols in the designs it painted on store windows. Solid Rock wanted to paint a design that included a cross and the message "The cross covers sin then, now, and forever." Plaintiffs' 8-count complaint charges violations of the 1st and 14th Amendments. In a press release announcing the filing of the lawsuit, Alliance Defending Freedom says it has delayed serving defendants in order to give the college time to change its mind and avoid litigation.

9th Circuit: Suit To Stop Release of Referendum Petition Signers Is Moot

In Doe #1 v. Reed, (9th Cir., Oct. 23, 2012), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision dismissed as moot a suit by Protect Marriage Washington to enjoin the state of Washington from releasing under the Public Records Act the names referendum petition signers.  At issue was the names of individuals who signed petitions supporting a referendum to overturn a state law that expanded the rights of domestic partners. In 2010 the U.S. Supreme Court rejected a facial challenge to the Public Records Law, but left open the possibility of an as-applied challenge if it could be shown that the release of names was undertaken to encourage harassment of signers. (See prior posting.) In yesterday's decision, a majority of the 9th Circuit panel held that the court cannot grant effective relief because the petitions are already widely available in searchable form on the Internet.

Judge Smith filed a concurring opinion concluding that the case is not moot because the court can prevent continued disclosure. However, he concluded that on the merits plaintiffs had not shown a 1st Amendment infringement. [Thanks to Alliance Alert for the lead.]

NM High Court Rejects Religious Sect Leader's Procedural Challenge To Convictions For Sexual Contact With Minors

In State of New Mexico v. Bent,(NM Sup. Ct., Oct. 22, 2012), the New Mexico Supreme Court rejected a procedural challenge to the conviction of a religious sect leader for sexual contact with his teenage followers and contributing to the delinquency of minors.  Defendant Wayne Bent, who had claimed that his lying naked with children was part of a religious healing ritual (see prior posting), challenged his conviction on the ground that the grand jury handed down his indictment after its statutory term of service had expired.  The state intermediate appeals court had held that the indictment was void.  The Supreme Court, however, said that "the view of jurisdiction taken by the Court of Appeals resembles more an artifact of a bygone era when courts took a hyper-technical, almost talismanic approach to the concept of subject matter jurisdiction." The Supreme Court held that any challenge to the indictment on these grounds should have been pursued to the Supreme Court through a petition for an extraordinary writ before trial when defendant's motion to quash the indictment was denied by the trial and appeals courts. AP reports on the decision, indicating that the 71-year old defendant, the leader of The Lord Our Righteousness Church, is serving a 10 year sentence.

NY High Court Refuses To Review Case Rejecting Challenge To Marriage Equality Law

Yesterday, the New York Court of Appeals-- the state's highest court-- denied a motion for leave to appeal in New Yorkers for Constitutional Freedoms v. New York State Senate, (Entry List).  In the case, a state intermediate appeals court in July  rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage). Plaintiffs had argued that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. (See prior posting.) In a statement yesterday after the court's decision, Governor Cuomo said:

New York State has served as a beacon for progressive ideals and this statute is a clear reminder of what this State stands for: equality and justice for all. With the Court’s decision, same-sex couples no longer have to worry that their right to marry could be legally challenged in this State. The freedom to marry in this State is secure for generations to come.

The Legislative Gazette reports on the decision.

Women File Administrative Complaint Over NY Farm's Religious Objections To Hosting Same-Sex Wedding

In New York this month, two Albany women, Jennie McCarthy and Melissa Erwin, have filed a discrimination complaint with the New York Division of Human Rights after Liberty Ridge Farm, a Shcaghticoke (NY) tourist attraction, refused to host the women's same-sex wedding. According to yesterday's Lichtfield County (CT) Register Citizen, Robert and Cynthia Gifford, the farm's owners, have religious objections to same-sex marriage.  Their spokesman argued that "they ought to have the opportunity to say that this is a behavior that they just don’t agree with and they just don’t condone on their privately owned property."  The New York Human Rights Law bars places of public accommodation from discriminating on the basis of sexual orientation.

Vatican Releases Full Text Of Sentencing Decision Of Pope's Former Butler

News.va reports that today the Vatican made public the full text (in Italian) of the 18-month aggravated theft sentence issued by the Tribunal of Vatican City State on October 6 against the Pope's former butler, Paolo Gabriele. (See prior posting.) At a press conference, Holy See Press Office Director Fr. Federico Lombardi said that the sentence focused on the stealing of originals of documents, and did not involve a nugget of gold, a check in the Pope's name and a 16th century copy of The Aeneid, because of doubts about Gabriele's guilt in taking them and doubts about the way in which the search that located them was carried out. Lombardi also said that a psychiatric exam had not found any mental condition that made Gabriele unaware of his responsibility for his actions. Presently Gabriele remains under house arrest since an appeal by the Tribunal's promoter of justice who wanted a stronger sentence was not possible until the full text of the sentence was published.  If no appeal is filed and the Pope does not pardon him, Gabriele will serve his sentence in a prison in the Vatican, since there is no relevant treaty with Italy that would allow him to be sent to an Italian prison. Vatican Radio reports that the trial of IT expert Carlo Sciarpeletti for aiding and abetting Gabriele will open November 5th.

President Obama's Brand of Christianity Is Analyzed

CNN's Belief blog on Sunday carried a lengthy analysis of President Obama's Christian faith, titling the article The Gospel According to Obama. This excerpt gives a flavor of the article:

Historians may remember Obama as the nation’s first black president, but he’s also a religious pioneer. He’s not only changed people’s perception of who can be president, some scholars and pastors say, but he’s also expanding the definition of who can be a Christian by challenging the religious right’s domination of the national stage.

When Obama invoked Jesus to support same-sex marriage, framed health care as a moral imperative to care for “the least of these,’’ and once urged people to read their Bible but just not literally, he was invoking another Christian tradition that once dominated American public life so much that it gave the nation its first megachurches, historians say....

Some Christians, however, still see Obama as the “other.” He doesn’t act or talk like other Christians, says the Rev. Gary Cass, a conservative Christian president of the Christian Anti-Defamation Commission..... Cass says he’s never heard Obama say he’s “born-again.” There’s no emotional conversion story to hang onto.

European Court Rejects Restitution Claim By Serbian Orthodox Church

In Budimljansko-Niksicka v. Montenegro, (ECHR, Oct. 19, 2012), the European Court of Human Rights, in a Chamber judgment, rejected claims by a diocese of the Serbian Orthodox Church in Montenegro that it was entitled to restitution for property formerly belonging to its churches and monasteries that was expropriated after World War II. As summarized in the Court's press release on the decision:

The Court held in particular that the applicants had no legitimate expectation, under Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, that they would be restituted, since the key provisions of the law on which they relied had been declared unconstitutional before they filed their request.

California Jury Awards Catholic School $1.1M In RLUIPA Case

In San Diego, California last Friday, a federal court jury awarded damages in excess of $1.1 million to a Catholic school that was denied permits by the city to build a new science classroom building and parking structure. According to the San Diego Union Tribune, the decision came in a lawsuit filed under the Religious Land Use and Institutionalized Persons Act against the city by the Academy of Our Lady of Peace after City Council overruled its Planning Commission's approval of the project.  The jury found that the city's actions imposed a substantial burden on the school's religious exercise. The court will hear arguments next month on whether it should also order the city to now issue the permits. The jury trial came after, in an earlier decision (see prior posting), the court refused to grant summary judgment to plaintiffs. [Thanks to Daniel Dalton for the lead.]

Presidential Delegation Attends Canonization of 2 Americans, 5 Others

Yesterday in Rome, Pope Benedict XVI celebrated a special mass to canonize 7 individuals, including two Americans. (Full text of Pope's homily.) As reported by CNN, the Americans are the first Native American saint, 17th century Mohawk Kateri Tekakwitha; and  German-born Marianne Cope, who came to the U.S. as a child, became a nun and devoted 30 years to helping lepers in Hawaii. Last week, President Obama announced a Presidential delegation to attend the canonization mass: the U.S. ambassador to the Vatican, Miguel Humberto Diaz; Sister Agnelle Ching, an official with the Saint Francis Healthcare System of Hawaii; and Sister Kateri Mitchell, director of the Tekakwitha Conference whose patroness is the newly named saint.

Bible Club's Equal Protection Claim Dismissed For Lack of Standing

In Youth Alive v. Hauppauge School District, (ED NY, Oct. 12, 2012), a New York federal district court dismissed for lack of standing a claim by a high school after-school Bible club that the school board violated the Equal Protection clause when, in order to comply with the federal Equal Access Act, it refused to furnish the club a paid advisor. Instead the board required the club to have a volunteer advisor.  In finding no injury-in-fact and dismissing the claim, the court said:

The use of an unpaid supervisor to monitor Youth Alive meetings has had no discernible effect on Plaintiffs' ability to exercise their First Amendment rights..... Plaintiffs speculate that a paid advisor would be less likely to cancel meetings than an unpaid advisor, which, in theory, could affect their rights to free speech and exercise of religion.... But the parties stipulated that, unlike all other clubs, if Youth Alive's unpaid supervisor cannot attend a meeting, Defendants provide a substitute volunteer to supervise the students.... Youth Alive, then, very well may be able to conduct more meetings than non-religious clubs.  In  any event, the evidence shows at most three cancelled meetings..., which is comparable to clubs with paid advisors.