In Israel, Park Closure To Outsiders Leads To Religious Discrimination Suit Against City

Arutz Sheva reported yesterday on a religious discrimination lawsuit filed in Israel against the city of Modi'in because it closed its popular Anabe Park to non-residents of the city last month during the holiday of Sukkot.  The move was seen as directed against the haredi (ultra-Orthodox) residents of the neighboring city of Modi'in Illit.  Apparently Modin mayor Chaim Bibas was reacting in part to a threat last summer by haredi to bar secular Israelis from visiting a heritage site in Modi'in Illit. Also residents of Modi'in have complained that the park is being taken from them by the many haredi that visit the park. The suit was filed by the Association for Civil Rights In Israel.

Ethiopia Files Terrorism Related Charges Against Muslim Demonstrators

AFP reports that in Ethiopia yesterday, 29 Muslims (including 9 prominent leaders) were formally charged with "intending to advance a political, religious or ideological cause" by force and "planning, preparation, conspiracy, incitement and attempt of terrorist acts." Two NGO's were also charged with rendering support to terrorism. The 29 charged were jailed in July after a demonstration in which they charged the government with trying to impose the moderate Al Ahbash Sufi branch of Islam on them. They also claim that the government fixed the results of elections for leaders of the Supreme Council on Islamic Affairs. 34% of Ethiopia's population is Muslim.

Statute of Limitations Ruling In Milwaukee Archdiocese Bankruptcy Upheld

In In re Archdiocese of Milwaukee, (ED WI, Oct. 29, 2012), a Wisconsin federal district court ruled on appeals of 3 claimants from orders of a bankruptcy judge relating to claims by abuse victims filed in the bankruptcy reorganization of the Catholic Archdiocese of Milwaukee. The claims generally allege that the Archdiocese knowingly allowed pedophile priests to continue in their positions without warning victims or their families. The court held that the bankruptcy court applied the correct standard in denying summary judgment on a statute of limitations defense in the claims of two victims who alleged fraud. Issues of fact remain on whether the statute has run. The court affirmed the bankruptcy court's dismissal on state statute of limitations grounds of same two claimants' failure to warn claims, saying: "The federal courts are not the appropriate forum to re-write Wisconsin tort law." The court upheld the bankruptcy court's dismissal of claims by a third victim who had settled his claims in mediation. While he alleged fraudulent statements, he did not allege he relied on them in settling.

Reporting on the decision, the Milwaukee Journal-Sentinel says that the dismissal of the claim by the victim who settled allows the Archdiocese to file similar objections to 90 other claimants in the bankruptcy proceedings. An attorney for 350 of the 574 claimants in the bankruptcy says he will now press the archdiocese to pursue coverage under two recently discovered insurance policies.

Supreme Court Denies Cert In Oklahoma Personhood Amendment Case

Th U.S. Supreme Court today denied certiorari in Personhood Oklahoma v. Barber, (Docket No. 12-145, cert. denied 10/29/2012) (Order List).  In the case, the Oklahoma Supreme Court in In re Initiative Petitition 395, (OK Sup. Ct., April 30, 2012) held that a proposed state constitutional amendment that would have defined as a person "any human being from the beginning of the biological development of that human being to natural death" was inconsistent with the U.S. Supreme Court's abortion rights rulings and thus the proposed amendment could not appear on the Oklahoma ballot. The Oklahoman reports on the Supreme Court's refusal to review the decision.

White House Sends Best Wishes To Muslims Celebrating Eid al-Adha

Last Friday, President Obama released a statement sending best wishes to Muslims in the United States and around the world who were celebrating  Eid al-Adha, as well as to those who are performing the Hajj. The statement said in part:

Throughout the year, Muslims join members of many faiths in serving  those suffering from hunger, disease, and conflict.  Muslim communities will continue this practice as they celebrate Eid by distributing food and charity to those in need.  Such acts of compassion underscore the shared values of the Abrahamic religions and people of all faiths.

Texas Parochial School Group Will Provide Religious Accommodation In Tournament Scheduling

The Texas Association of Private and Parochial Schools has changed its rules to provide for religious accommodation for teams in basketball tournament scheduling. JTA reported last week that the move was taken after the association began facing pressure from members to become more inclusive.  Last February, TAPPS became embroiled in a high profile controversy over its refusal initially to reschedule a Friday evening game for a Houston Jewish day school. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Charles J. Berendt, Transformational Leadership: Lessons in Management for Today, (International Business Research, Vol. 5, No. 10, October 2012).
• Zvi H. Triger, Women, Contract Signing, and the Market, (Gender and Capitalism, Orna Coussin, Dana Olmert, Yofi Tirosh, eds., Forthcoming).
• Timothy J. Tracey, The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights, (University of Memphis Law Review, Forthcoming).
• Jason J. Kilborn, The 5000-Year Circle of Debt Clemency: From Sumer and Babylon to America and Europe, (Nederlands Tijdschrift voor Burgerlijk Recht, 2013, Forthcoming).
• Ven. Alex Bruce, Labelling Illogic? Food Animal Welfare & the Australian Consumer Law, (October 17, 2012).
• Pascale Fournier and Erica See, The 'Naked Face' of Secular Exclusion: Bill 94 and the Privatization of Belief, (Windsor Yearbook of Access to Justice, Vol. 30, No. 1, 2012).
• Seth Adam Meyer, Providential Products: Reconciling the American and European Constitutional Experiences, (February 23, 2012).
• Alastair Mullis, Alastair and Andrew Scott, How to Know the Truth: Accommodating Religious Belief in the Law of Libel, (LSE Legal Studies Working Paper No. 9/2012).
• Amit K. Chhabra, Autumnal Rage: Playing with Islamic Fire, (University of Pennsylvania Journal of International Law, Forthcoming).
• Andrew F. March, Genealogies of Sovereignty in Islamic Political Theology, (Social Research (Special Issue: Political Theology), Forthcoming).
•  Ashutosh Avinash Bhagwat, Assembly Resurrected, (Texas Law Review, Forthcoming). 

Recent Issues of Online Journals:

• Oxford Journal of Law and Religion, Vol. 1, Issue 2, Oct. 2012.
• Journal of Faith and War, Fall 2012.
• Liberty Magazine, Sept/Oct. 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.

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.

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.]

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.