Religion Clause

Monday, October 29, 2012

Sunday, October 28, 2012

Trial Court Denies Vermont Diocese Summary Judgment In Abuse Case

In Parks v. Roman Catholic Diocese of Burlington, Vermont, Inc., (VT Super., Oct. 18, 2012), a Vermont trial court denied summary judgment to to the Burlington Catholic Diocese in a suit against it by plaintiff who, as an altar boy in the late 1970's, was sexually abused by priest Edward Paquette. The suit alleges negligent hiring and retention of the priest, failure to prevent the abuse and conspiring to cover it up. The court held that when plaintiff was put on inquiry notice for purposes of the statute of limitations is a jury issue. In particular, the issue here was when plaintiff knew or should have known he was harmed by the molestation. The court also rejected the Diocese's Establishment Clause, free exercise, and due process defenses, as well as its arguments against permitting punitive damages. The result is similar to that reached by a Vermont federal district court last month in a similar suit against the Burlington Diocese brought by a different plaintiff. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Jensen v. Kline, 2012 U.S. Dist. LEXIS 151684 (WD WA, Oct. 21, 2012), a Washington federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 151677, Sept. 14, 2012) and dismissed an inmate's complaint that when corrections officers searched his cell, they mishandled, confiscated and destroyed his sacred Native American religious items.

In Barnett v. Bibb County Sheriffs Office, 2012 U.S. Dist. LEXIS 151814 (MD GA, Oct. 23, 2012), a Georgia federal district court dismissed without prejudice a suit by a pre-rial detainee complaining that jail officials failed to organize and provide religious services for inmates.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 152115 (D CO, Oct. 22, 2012), a Colorado federal magistrate judge dismissed a suit by a Catholic inmate who alleged that his rights under the free exercise clause and RLUIPA were violated, and that certain prison regulations were overbroad and vague, when officials refused to permit him to keep an image of an adult Jesus being flogged, and several images of baby Jesus in various states of undress.

In Joseph v. Fischer, 2012 U.S. Dist. LEXIS 152919 (WD NY, Oct. 24, 2012), a New York federal district court permitted an inmate who is a member of Nation of Gods and Earths to proceed with his claim against the Commissioner of the N.Y. Department of Corrections for injunctive relief under the 1st Amendment and RLUIPA. Plaintiff alleges that authorities confiscated his written materials relating to NGE, prevented NGE members from congregating to talk about NGE, and do not treat NGE the same as other faith groups.

In Ouahman v. Barnes, 2012 U.S. Dist. LEXIS 153493 (D NH, Oct. 25, 2012), a New Hampshire federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 153508, Oct. 1, 2012), and dismissed a Muslim inmate's complaint that he was not furnished a Qur'an or prayer rug, and did not received a special meal schedule for Ramadan.

In Borkholder v. Lemmon, 2012 U.S. Dist. LEXIS 153970 (ND IN, Oct. 26, 2012), an Indiana federal district court permitted an inmate to proceed with his claim that his rights under the 1st Amendment and RLUIPA were violated when his religious vegan diet was revoked because he ordered Raman Noodles (which includes a meat-based seasoning packet) from the commissary.

UPDATE: On Oct. 24, the ACLU announced a settlement in a suit against Prince County, Washington under which county jail officials have agreed to accommodate religious dietary requests of Muslims and, consistent with jail security, accommodate other religious needs of Muslim inmates. Defendants will also train jail staff on religious freedom issues.

Suit Challenges Michigan Law Restricting Political Pressure By Clergy

Last week, Dr. Levon Yuille, pastor of The Bible Church in Ypsilanti, Michigan filed a federal lawsuit challenging the constitutionality of a Michigan statute (MCL §168.931(1)(e)) that prohibits any member of the clergy from threatening excommunication, expulsion or religious disapproval for the purpose of influencing a voter at an election. Plaintiff is also National Director of the National Black Pro-Life Congress, former Chairman of the Michigan Black Republican Council of Southern Michigan, and the host of Joshua’s Trail, a radio talk show. He seeks an injunction, claiming that the law violates his free speech, free exercise and equal protection rights. The complaint (full text) in Yuille v. Schuette, (ED MI, filed 10/22/2012) alleges that Yuille is subject to prosecution under the law because:

Pursuant to his sincerely held religious beliefs, Pastor Yuille advises voters, including those voters who are members of his church, that to vote for a candidate that publicly supports abortion and gay marriage, such as President Barack Obama, is to act contrary to God’s Word, it is a grave sin, it is looked upon with religious disapproval, and it could endanger their soul and separate them from the body of Christ.

American Freedom Law Center announced the filing of the lawsuit. Plaintiff also filed a motion for a temporary restraining order and prelliminary injunction and a brief in support of the motion (full text). A hearing is scheduled on Tuesday. (AFLC press release.) According to a report today by the Detroit Free Press, Michigan attorney general Bill Schuette, also a Republican, filed a response to the lawsuit arguing that it has no basis. He says he is not aware of any prosecutions in the modern era under the provision that was originally enacted over 100 years ago.

Saturday, October 27, 2012

Paper Says Some Religiously Affiliated Residential Child Care Homes In Florida Escape State Regulation and Abuse Residents

Florida law imposes state-wide minimum standards on child care facilities. However, Fla. Stat. Sec. 402.316 exempts from most of the state requirements any "child care facility which is an integral part of church or parochial schools ... or educational programs accredited by... an organization which publishes and requires compliance with its standards for health, safety, and sanitation." The Tampa Bay Times, in an investigative article today, reports that nearly a dozen residential group homes for children which escape state supervision under this exemption have abused children in their care, and they continue to operate. Religious homes under the exemption are supposed to be supervised by the Florida Association of Christian Child Caring Agencies, which says it has removed accreditation from at least 3 homes since 2005. Some of these nevertheless continue in violation of state law. According to the newspaper:

Today, virtually anyone can claim a list of religious ideals, take in children and subject them to punishment and isolation that verge on torture — so long as they quote chapter and verse to justify it....

Here are some of the findings that emerged from the paper's investigation:

• State authorities have responded to at least 165 allegations of abuse and neglect in the past decade, but homes have remained open even after the state found evidence of sex abuse and physical injury.

• The religious exemption has for decades allowed homes to avoid state restrictions on corporal punishment.....

• Children have been bruised, bloodied and choked to unconsciousness in the name of Christian discipline.....

• Teens have been denounced as sinners, called "faggots" and "whores," and humiliated in front of their peers for menstrual stains and suspicions of masturbation....

• Florida taxpayers have supported some unlicensed homes with hundreds of thousands of dollars in McKay scholarships — a government program to help special needs students pay tuition at private schools.

Christian Political Group Urges Votes Against Illinois Judge Because of Decision Against Catholic Charities

The Springfield, Illinois State Journal-Register reported yesterday that Illinois Family Action, the political arm of the Christian-based Illinois Family Institute, has made robo-calls to 25,000 households urging voters to vote against a Republican trial court judge because he ruled that the state is not required to renew contracts with Catholic Charities to provide foster care and adoption services. (See prior posting.) The state decided not to renew the contracts because Catholic Charities refuses to serve unmarried cohabiting couples (including those in same-sex civil unions). The target of the calls, Judge John Schmidt is running against a lawyer, Democrat Tim Londrigan. The robo-calls say in part that Schmidt "recently ruled against religious liberty in upholding the radical homosexual civil unions law." Similar calls are being made in attempts to defeeat six legislative candidates who support civil unions.

Court, Accepting Magistrate's Ruling, Permits 4th Grader To Distribute Easter Egg Hunt Invites

As previously reported, earlier this month a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church-organized Easter egg hunt to fellow classmates. Now, in Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 24, 2012), a federal district judge has adopted the magistrate's report and recommendation and issued a preliminary injunction, concluding:

There is no evidence in this record that distribution of Easter egg hunt invitations during non-instructional time would have caused any interference with school work or discipline at [the school]..... [A]s applied to J.D.'s invitations, enforcement of the contested provisions ... was unconstitutional as view-point based discrimination because enforcement targeted proselytizing messages solely from a religious perspective.

AP reports on the decision.

Friday, October 26, 2012

6th Circuit: Transit System Can Refuse Anti-Muslim Ad

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 25, 2012), the U.S. 6th Circuit Court of Appeals held that a public transit system could refuse an ad that read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com." Holding that the district court should not have granted a preliminary injunction, the 6th Circuit said:

Since the advertising space on SMART’s vehicles is a nonpublic forum, the content restrictions imposed on that space are constitutional as long as they are reasonable and viewpoint neutral..... SMART could reasonably view the fatwa advertisement as falling within the prohibition against political advertisements, and AFDI is unlikely to succeed with its counterarguments that these rules are unconstitutional or merely a pretext for SMART’s disagreement with AFDI’s viewpoint.

The Wall Street Journal reports on the decision. [Thanks to Alliance Alert for the lead.]

Court Rejects Muslim Man's Suit Against Fast Food Restaurant For Inadequate Warning of Bacon In Sandwich

In Lopez v. Wendy's International, Inc., (ND OH, Oct. 23, 2012), a Muslim customer of a Wendy's restaurant franchise in New York City sued claiming he was not adequately warned that the restaurant's Asiago Chicken Ranch Club Sandwich contained bacon, which he is forbidden for religious reasons from eating. The cashier did not mention bacon as an ingredient when he asked what the sandwich contained. An Ohio federal district court dismissed one of the defendants on the ground that Ohio was not the proper venue. On the merits, it dismissed plaintiff's free exercise claim because defendants were not state actors. It dismissed plaintiff's Lanham Act claim on the ground that a one-time answer from a restaurant employee is likely not an "advertisement," and at any rate there was no intent to deceive. Finally the court refused to exercise supplemental jurisdiction over plaintiff's state law claims.

New Poll Says Americans Oppose Conscience Exemptions For Suppliers of Reproductive Health Services

Yesterday, Catholics for Choice and the ACLU released a new Belden Russonello poll that concludes Americans, by wide majorities, oppose exemptions that allow organizations and medical professionals to refuse to furnish reproductive health services on religious grounds. For example, 69% of those polled (including 68% of Catholics) oppose allowing religiously affiliated universities to deny insurance coverage for birth control. 62% oppose allowing Catholic hospitals to refuse to perform medically necessary abortions. 77% oppose allowing pharmacies to refuse for religious reasons to fill birth control prescriptions.

KY High Court Upholds Convictions of Amish Buggy Drivers; Adopts Federal Standard For State Free Exercise

Yesterday the Kentucky Supreme Court, in a 4-1-2 decision, aligned its interpretation of the free exercise provisions of the Kentucky Constitution (Sec. 1 and 5) with the U.S. Supreme Court's interpretation of the federal free exercise clause. In Gingerich v. Commonwealth of Kentucky, (KY Sup. Ct., Oct. 25, 2012), the majority upheld the convictions of a number of Amish men for violating KRS 189.820, which (before it was amended earlier this year to create an alternative for Amish objectors) required all slow-moving vehicles to display a bright orange-yellow triangle. The defendants, all members of the Old Order Swartzentruber Amish, claim the emblem is inconsistent with their religious requirement to be plain, and displays the trinity which is a symbol not adopted by the Amish. The majority in an opinion by Justice Noble, wrote:

This Court now finds that statutes, regulations, or other governmental enactments which provide for the public health, safety and welfare, and which are statutes of general applicability that only incidentally affect the practice of religion, are properly reviewed for a rational basis under the Kentucky Constitution, as they are under the federal constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review. As discussed above, providing this clearer standard brings Kentucky's jurisprudence in line with United States Supreme Court precedent.

Justice Venters in a separate opinion concurred in the result, but said:

This Court is the final arbiter of the meaning of the Kentucky Constitution, and our interpretation of its terms should not be constrained by the opinions of federal courts interpreting the United States Constitution. Those opinions may be instructive and influential in our review of our state Constitution, but they do not control the meaning of the Kentucky Constitution; nor do they define the protections of liberty contained therein. We should no longer tether the meaning of the Kentucky Constitution to the pendulum of the federal court interpretations of the federal Constitution.

Justice Scott, in an opinion joined by Justice Abramson, argued:

the Kentucky Constitution unquestionably affords greater protection to the free exercise of religion than does the Federal Constitution. Accordingly, any law interfering with an individual's free exercise of religion must pass strict scrutiny or else be declared unconstitutional.

They concluded that while the state had a compelling highway safety interest, it had not used the least restrictive alternative in achieving its purpose. AP reports on the decision.

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.]

Thursday, October 25, 2012

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.

Wednesday, October 24, 2012

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.