Religion Clause

Wednesday, November 21, 2012

Water Tower Cross Eliminated By Town After Complaint

As reported yesterday by the Bolingbrook Patch, the Chicago (IL) suburb of Alsip this year will not display a cross that it has put up for nearly 35 years at Christmas time on the city's water tower. A letter to residents from the town's mayor says that a complaint by the Freedom From Religion Foundation led to the decision, because "the Village cannot afford to waste any tax dollars on a lawsuit that simply cannot be won." The mayor says that in future years, a different holiday decoration will be placed on the water tower.

Good News Clubs Challenge California's Requirement That Schools Charge For Space Used For Religious Services

The Good News Clubs filed suit in federal district court on Monday challenging the constitutionality of California Education Code Secs. 38131(b)(3) and 38134(d) which together require schools to charge an amount at least equal to direct costs for use of school space for religious services, but make charging of fees discretionary when school space is used by other civic groups. The complaint (full text) in Child Evangelism Fellowship, Inc. of West Orange County v. Buena Park School District, (CD CA, filed 11/19. 2012), alleges that the school district's regulations that allow use without charge of school space by nonprofit organizations organized to promote youth and school activities, but not to the after-school religious activities of Good News Clubs amounts to unconstitutional viewpoint discrimination, as well as infringing free exercise, equal protection and establishment clause rights. The American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Church's RLUIPA Suit Dismissed On Ripeness Grounds, Avoiding Decision On Prudential Standing

In Cassidy v. City of Brewer, (D ME, Nov. 19, 2012), a Maine federal district court dismissed on ripeness grounds a RLUIPA religious discrimination claim because plaintiff did not appeal the decision of the city's code enforcement officer to the zoning board of appeals. As reported by the Bangor Daily News, Rock Church had wanted to expand in rented space in a shopping center, but the code enforcement officer held that the expansion would lose the church's status as a nonconforming use. The court held that it did not need to decide whether the church's landlord as a RLUIPA plaintiff must meet prudential standing requirements as well as Article III standing requirements, saying:

If he must, then the Magistrate Judge is certainly correct that this commercial landlord plaintiff, who is not a religious institution and whose church tenant has abandoned his lease, does not meet those requirements in bringing this RLUIPA challenge against the City of Brewer. But there are cases that read RLUIPA’s language as requiring that a plaintiff meet only the Article III standing requirements and not the additional prudential requirements.

The federal magistrate judge's opinion in the case, dealing at length with the standing issue, is at 2012 U.S. Dist. LEXIS 165723 (Sept. 12, 2012).

Oklahoma High Court Dismisses Challenge To Voucher Program On Standing Grounds

Last March, an Oklahoma state trial court judge struck down Oklahoma's school voucher program for special needs students, finding that the program violates the state Constitution's ban on use of public funds to benefit any sectarian institution. (Constitution, Art. II-5). 38 of the 40 schools eligible to enroll students under the program are Christian schools. (See prior posting.) Now in Independent School District No. 5 of Tulsa County v. Spry, (OK Sup. Ct., Nov. 20, 2012), in a 7-2 decision, the Oklahoma Supreme Court reversed that decision on standing grounds. It held that the school districts which were plaintiffs in the lawsuit lack standing because they are not taxpayers who have a right to challenge the program, nor are the funds involved taxes from taxpayers in the districts' county revenue streams that a county assessor is improperly reducing or disposing of. Becket Fund issued a press release announcing the state Supreme Court's decision.

Tuesday, November 20, 2012

First Hindu Member of U.S. House Will Be Sworn In On Bhagavad Gita

Yesterday's Huffington Post reports that Tulsi Gabbard, the first Hindu elected to the U.S. Congress, will take her oath of office in January using the Bhagavad Gita, a sacred Hindu text. Gabbard, elected to represent Hawaii's 2nd Congressional district, was born in American Samoa and moved to Hawaii when she was 2 years old. Her father, a Samoan, was Catholic, while her mother was a convert to Hinduism. Gabbard follows the Vaishnava branch of Hinduism. She served in the Hawaii state senate, and as a national guard member served in Kuwait and Iraq. She takes the Congressional seat of Mazie Hirono, a Buddhist, who was elected to the U.S. Senate as its first Buddhist member.

Religious Composition of 113th Congress Compiled

Pew Forum last week released an analysis of the religious makeup of the new 113th Congress. Protestants hold 56% of the seats in Congress. Among Protestant groups, Baptists hold the largest number of seats-- 74 in all. Catholics hold 30% of the seats, holding 5 seats more than in the last Congress. 6% of the members of the new Congress are Jewish, a loss of 7 seats from the 112th Congress. Mormons hold almost 3% of the seats. Reflecting increased diversity, the new Congress includes 3 Buddhists (including 1 for the first time in the Senate), 2 Muslims and, for the first time, a Hindu member. Opposing Views has further commentary on the data.

Court Denies Hobby Lobby and Its Owners A Preliminary Injunction Against Contraceptive Coverage Mandate

Another decision in the many challenges to the contraceptive coverage mandate under the Affordable Care Act was handed down yesterday. In Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, Nov. 19, 2012), an Oklahoma federal district court denied a preliminary injunction, rejecting both 1st Amendment and Religious Freedom Restoration Act claims by Hobby Lobby Stores, Inc., Mardel, Inc. and the Green family that owns and operates the closely held businesses. Plaintiffs asserted that their free exercise rights are infringed by requiring the companies' employee health insurance policies to cover contraceptive methods that they believe amount to abortion. The court held that secular, for-profit corporations do not have a constitutional right to the free exercise of religion. As to claims by the individual owners of the companies, the court found that the free exercise claims are not likely to succeed because the mandate is a neutral requirement of general applicability, and therefore need only meet the rational basis test.

Moving to the RFRA claim, the court concluded that business corporations are also not covered by its protections:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters ... which is not the province of a general business corporation.

Finally the court concluded that the mandate does not impose a "substantial burden" on the free exercise rights of the individual owners of the business corporations:

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.... [T]he particular “burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.”... Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”...

UPDATE: A Becket Fund press release says that Hobby Lobby will appeal the decision.

UPDATE2: Plaintiffs on Nov. 20 filed with the 10th Circuit Court of Appeals a motion for an injunction pending appeal and a memorandum in support of the motion. (Full text).

Pakistan Court Drops Trumped-Up Blasphemy Charges Against Christian Girl

The Guardian reports that in Pakistan this week, the Islamabad high court dismissed blasphemy charges that had been brought against a Christian girl, Rimsha Masih. The case, in which the girl was charged with burning pages from holy texts, gained heightened international attention after it was claimed that a local mullah had planted charred pages from a Qur'an in the papers that Masih was carrying in order to strengthen the case against her. Police in the case testified that there was no evidence against Masih who was released on bail in September. (See prior posting.)

UPDATE: The full text of the court's order quashing the charges is now available.

Cert. Filed In Challenge To State Findings On Reliance on God

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in American Atheists, Inc. v. Kentucky Office of Homeland Security, (cert. filed 11/13/2012). In the case, a Kentucky state appeals court rejected an Establishment Clause challenge to legislative findings in a state Antiterrorism Act about the necessity of reliance on God. (See prior posting.).The Kentucky Supreme Court denied review. Sunday's Louisville Courier-Journal reports on the petition for review.

Court Upholds Santa Monica's Ban On Park Christmas Display

AP reports that a California federal district court yesterday denied a preliminary injunction in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19 2012). The suit involved a challenge to a Santa Moncia (CA) ordinance that prevented a group from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. (See prior posting.) In recent years, controversy has surrounded holiday displays in the park after secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. According to AP:

The judge, however, said Santa Monica proved that it banned the displays not to squash religious speech but because they were becoming a drain on city resources, destroying the turf and obstructing ocean views. Churches can set up unattended displays at 12 other parks in the city with a permit and can leaflet, carol and otherwise present the Christmas story in Palisades Park when it is open, she said.

UPDATE: The opinion in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19, 2012) is at 2012 U.S. Dist. LEXIS 167525.

Monday, November 19, 2012

Obama Speaks In Burma About Religious Freedom

As part of his trip to Burma (Myanmar), President Obama spoke today at the University of Yangon in Rangoon. (Full text of speech.) His speech included a plea for the country to deal with the ethnic-religious violence faced by the Rohingya Muslim minority, and the persecution of ethnic minority Chin Christians in Kachin state:

And this truth leads me to the third freedom that I want to discuss: the freedom to worship -- the freedom to worship as you please, and your right to basic human dignity.

This country, like my own country, is blessed with diversity. Not everybody looks the same. Not everybody comes from the same region. Not everybody worships in the same way. In your cities and towns, there are pagodas and temples, and mosques and churches standing side by side. Well over a hundred ethnic groups have been a part of your story. Yet within these borders, we’ve seen some of the world’s longest running insurgencies, which have cost countless lives, and torn families and communities apart, and stood in the way of development.

No process of reform will succeed without national reconciliation. (Applause.) You now have a moment of remarkable opportunity to transform cease-fires into lasting settlements, and to pursue peace where conflicts still linger, including in Kachin State. Those efforts must lead to a more just and lasting peace, including humanitarian access to those in need, and a chance for the displaced to return home.

Today, we look at the recent violence in Rakhine State that has caused so much suffering, and we see the danger of continued tensions there. For too long, the people of this state, including ethnic Rakhine, have faced crushing poverty and persecution. But there is no excuse for violence against innocent people. And the Rohingya hold themselves -- hold within themselves the same dignity as you do, and I do.

National reconciliation will take time, but for the sake of our common humanity, and for the sake of this country’s future, it is necessary to stop incitement and to stop violence. And I welcome the government’s commitment to address the issues of injustice and accountability, and humanitarian access and citizenship. That’s a vision that the world will support as you move forward.

(See prior related posting.)

Church With Police Hosts Operation Safe Surrender

AP reports that last week, Greater Friendship Baptist Church in Daytona Beach, Florida for the third time hosted Operation Safe Surrender in cooperation with law enforcement authorities. The program allows those wanted by the police to surrender at the church, get an initial hearing there by closed-circuit TV with public defenders available, and for non-violent defenders get possible reduced or dismissed charges. Clergy were also available for spiritual counseling.

Stanford Offers Religious Liberty Clinic

First Things reports that next semester Stanford Law School will become the first law school to offer students participation in a clinic that focuses on religious liberty. The Religious Liberty Clinic director is James Sonne, formerly of Ave Maria Law School.

Sunday, November 18, 2012

Judge Requires Teen To Attend Church For 10 Years As Probation Condition

ABC News reports that a state trial court judge in Oklahoma has sentenced a teenager to a probation arrangement that includes a requirement that he attend the church of his choice every week for ten years. After 17-year old Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an auto crash, Judge Mike Norman imposed a deferred prison sentence. Alred had been drinking. Alred will avoid jail and have his conviction expunged after 10 years if he complies with all the probation conditions: graduating high school, wearing a drug and alcohol bracelet, attending counseling sessions, and going to church. Judge Norman has imposed a sentence of church attendance in other cases also. Alred's lawyer did not object to the sentence.

Recent Prisoner Free Exercise Cases

In Owens v. Davies County Detention Center, 2012 U.S. Dist. LEXIS 162003 (WD KY, Nov. 9, 2012), a Kentucky federal district court dismissed an inmate's complaint of delays in feeding him breakfast during Ramadan, but allowed him to proceed on his claim of retaliation for filing grievances about the issue.

In Adams v. Davenport, 2012 U.S. Dist. LEXIS 161853 (MD AL, Nov. 13, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 162746, Oct. 5, 2012) and dismissed claims by a Native American inmate that requiring him to cut his hair violated his religious exercise rights. The court also rejected equal protection and retaliation claims.

In Vega v. Lantz, 2012 U.S. Dist. LEXIS 163963 (D CT, Nov. 16, 2012), a Muslim inmate sued complaining that his request to be circumcised was denied, he was denied prayer oils, and Friday congregate prayer was frequently cancelled. A Connecticut federal magistrate judge held that defendants were entitled to qualified immunity on the damage claims against them, but that the case can proceed on its claims for injunctive and declaratory relief.

Greece Charges Play Producers and Cast With Blasphemy

In Greece on Friday, the public prosecutor's office charged the organizers, cast and producers of the play Corpus Christi with "insulting religion" and "malicious blasphemy." The play, by American playwright Terrence McNally depicts Jesus and his apostles as gay and living in Texas. According to Reuters and Greek Reporter, the unusual criminal charges were filed after a lawsuit by Bishop Seraphim of Piraeus. Weeks of protest outside the Hytirio Theater in downtown Athens by priests and right-wing groups such as the ultra-nationalist Golden Dawn party had caused the play to be cancelled.

Saturday, November 17, 2012

Charter School Sponsor Sues Insurance Company Over Costs Of Establishment Clause Battle

In February 2011, the ACLU of Minnesota reached a settlement agreement with Islamic Relief USA and Minnesota's commissioner of education in a long-running lawsuit accusing a charter school, TiZA, of violating the establishment clause by promoting Islam. (See prior posting.) Now Islamic Relief (which was TiZA's sponsor) has filed suit against an insurance company for reimbursement of $1 million in cost and fees plus the settlement payment of $267,500 it incurred. The complaint (full text) in Islamic Relief USA v. Minnesota School Boards Association Insurance Trust, (D MN, filed 11/13/2012) alleges that the insurance company breached the insurance contract by refusing to provide a defense to Islamic Relief, and that the insurance company is obligated under the policy to indemnify Islamic Relief for the amounts it was required to pay as damages for alleged violations of civil rights. Courthouse News Service reports on the lawsuit.

Court Enjoins Requiring Christian Publisher To Cover Contraceptives Seen As Abortifacients In Health Care Plan

In Tyndale House Publishers, Inc. v. Sebelius, (D DC, Nov. 16, 2012), the federal district court for the District of Columbia issued a preliminary injunction barring the federal government from enforcing a portion of the Affordable Care Act contraceptive coverage mandate against a company that publishes Bibles and other Christian books. The court held that plaintiffs would likely succeed on the merits of showing that their rights under the Religious Freedom Restoration Act would be infringed by requiring their health plans to cover contraceptive methods that the company and its owners consider abortifacients-- Plan B, ella and intrauterine devices.

The court held, first, that the publishing company has standing::

when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes…. Tyndale [also] has standing to assert its owners’ free exercise rights under the third-party standing doctrine….

Turning to the substance of plaintiffs’ claims under the Religious Freedom Restoration Act, the court concluded that the contraceptive coverage mandates substantially burdens plaintiffs’ free exercise rights:

Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden….

The government argued that even if there was a substantial burden, it had a compelling interest in preventing the health problems associated with unintended pregnancies. The court held, however, that since plaintiffs object only to a limited number of contraceptives, and will still provide many others, it is not clear how excluding that limited number will interfere with the government's interest. It also pointed out that other exemptions in the law exclude 191 million employees from coverage by the mandate.

Alliance Defending Freedom issued a press release announcing the decision, and the Washington Post reported on the decision.

Friday, November 16, 2012

British Court Finds Priest Sexual Abuse Caused Only Limited Damage To Claimant

In Raggett v. Society of Jesus Trust 1929 for Roman Catholic Purposes, (EWHC, Nov. 9, 2012), a British trial court (England and Wales High Court Queen's Bench Division) was faced with the question of the amount of damages to award to claimant who had been the victim of "a sustained course of sexual abuse" (but not "penetrative activity") by a Catholic priest beginning in 1970 when plaintiff was 11 years old and continuing until he was 15. Claimant, who was a law school graduate, sought damages in excess of £4 million. He claimed that:

the psychiatric damage resulting from the abuse caused him difficulties in forming and maintaining personal relationships, in particular with his first wife. He also contends that the personality change caused by the abuse had a seriously detrimental effect on his ability to work as a solicitor. In particular, it adversely affected his ability to relate to people in positions of authority and to exercise appropriate judgment and self-control in his dealings with them. It is said that it also caused the claimant to indulge in 'risk taking' behaviour, to drink excessively and to use illicit drugs. It is claimed that the personality change resulted in the loss of his employment with Pinsents and his inability to obtain alternative employment as a lawyer.

The court in a 350 paragraph opinion, however, awarded him only £54,923.03, concluding that:

the psychological effects of the sexual abuse were confined to a period of about eight years from the start of the abuse until the beginning of the claimant's third year at University. They would have been most acute during the period of four years or so when the abuse was continuing. Thereafter, I find that the claimant's problems were caused mainly by his harmful use of alcohol, coupled with his abnormal personality traits. I do not consider that the abuse played any significant role in the claimant's performance at work, the loss of his legal career, his excessive drinking, his drug taking or his difficulties with relationships.