1st Amendment No Bar To Court Deciding Claim on Injury While Lighting Votive Candle

In Brady v. Star of the Sea Church Corporation of Unionville, Connecticut, 2012 Conn. Super. LEXIS 3038 (CT Super. Ct., Dec. 14, 2012), a Connecticut trial court rejected a Catholic church's 1st Amendment defense to a damage claim against it by plaintiff who was injured while attempting to light a votive candle near the church's altar.  A loose kneeling pad in front of already lighted candles caused plaintiff to lurch forward and sustain injuries from her blouse being ignited. The court rejected the church's argument that placement of the kneeling pads and candles are a matter within its discretion in interpreting religious law. The court instead held that "plaintiff's claims can be resolved by the court applying only neutral principles of law that do not intrude on religious decisions within the church sanctuary."

"American Taliban" Inmate Wins RFRA Challenge To Muslim Prayer Restrictions

The media, such as this article in the Lafayette, Indiana Journal and Courier, are giving a good deal of attention to an Indiana federal district court's decision in Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana, (SD IN, Jan. 11, 2013), the successful RFRA challenge by so-called "American Taliban" John Walker Lindh, now in federal prison, to a policy prohibiting daily group prayer by Muslim inmates housed in the prison's Communications Management Unit. The court found that:

congregate prayer activity that the Plaintiff seeks, which is the same congregate activity that occurred without serious incident for at least three years in the CMU, is not significantly different than any other group activity that is already allowed in the CMU. It is not a formal service with a sermon. It is instead a brief meeting to engage in ritualistic prayer. It is uncontested, for example, that Muslim prisoners may gather together in the multi-purpose room, without restriction on number, to listen or watch recordings, in Arabic, of verses from the Koran. Given that this activity is already allowed, along with a host  of other congregate activities, allowing persons to recite short formulaic prayers is entirely consistent with the activities that are allowed in the CMU.

The court concluded that current restrictions impose a substantial burden on Lindh's religious exercise, and are not the least restrictive means of achieving a compelling governmental interest.

A Survey of Law School Teaching Materials On Religious Liberty, Law and Religion

As the new semester begins at American law schools, here is a guide to in-print casebooks and  materials for teaching of law school courses on religious liberty or law and religion.  Books are listed by date of publication, most recent first:

• Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary (West, 2013).
• John T. Noonan, Jr. and Edward M. Gaffney, Religious Freedom: History, Cases and Other Materials on the Interaction of Religion and Government, 3d (Foundation Press, 2011).
• Michael W. McConnell , John H. Garvey , Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).
• Understanding Islamic Law, (Lexis-Nexis, 2011).
• Leslie C. Griffin, Law and Religion, Cases and Materials, 2d (West, 2010).
• Arthur D. Hellman, William D. Araiza and Thomas E. Baker, First Amendment Law: Freedom of Expression & Freedom of Religion, Second Edition (Lexis-Nexis, 2010) with 2012 Supplement.
• Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).
• Daniel O. Conkle, Constitutional Law - The Religion Clauses, 2d (Turning Point Series)  (Foundation Press, 2009).
• Alan E. Brownstein and Leslie Jacobs, Global Issues in Freedom of Speech and Religion: Cases and Materials (West, 2009).
• W. Cole Durham Jr. and Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).
• Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d (West, 2008).
• Stephen G. Gey, Religion and the State, Second Edition, (Lexis-Nexis, 2006).
• James S. Serritella, et. al., Religious Organizations in the United States: A Study of Identity, Liberty, and the Law, (Carolina Academic Press, 2006).
• Eugene Volokh, The Religion Clauses and Related Statutes: Problems, Cases and Policy Arguments (Foundation Press, 2005).
• Martin H. Belsky and Joseph Bessler-Northcutt, Law and Theology, (Carolina Academic Press, 2005).
• Thomas C. Berg, The State and Religion in a Nutshell, 2d (West, 2004).
• Michael S. Ariens and Robert A. Destro, Religious Liberty in a Pluralistic Society, Second Edition (Carolina Academic Press, 2002).
• Rodney A. Smolla, The First Amendment: Freedom of Expression, Regulation of Mass Media, Freedom of Religion (Carolina Academic Press, 2000).
• Arnold H. Loewy, Religion and the Constitution: Cases and Materials (West, 1999), with 2002 Supplement.
• Justice Menachem Elon, Jewish Law (Mishpat Ivri): Cases and Materials, (Lexis-Nexis, 1999).

Satanic Temple Calls Rally To Thank Florida Governor For Backing Bill Allowing Student Inspirational Messages

Last year, a new Florida law authorized school districts to adopt policies allowing inspirational messages to be composed and delivered by students at student assemblies. (See prior posting.)  Yesterday the Huffington Post reported on a new development that likely will distress some who supported the new law. In a press release last week, the Satanic Temple announced a January 25 rally outside the Governor's Office to thank Gov. Rick Scott for his strong support of the bill.  According to the press release, the new law "has reaffirmed our American freedom to practice our faith openly, allowing our Satanic children the freedom to pray in school."

Florida Agrees To Reinstitute Prison Kosher Meals

Today JTA reports that the Florida Department of Corrections agreed last week to reinstitute kosher food availability for Jewish inmates. Florida cancelled its kosher food program 5 years ago. Last year the U.S. Justice Department sued the state under RLUIPA challenging the food program cancellation. (See prior posting.)  A state study group on the issue says that kosher meals cost the state $146,000 per year. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Haider Ala Hamoudi, Religious Minorities and Shari’a in Iraqi Courts, (Boston University International Law Journal, 2013, Forthcoming).
• Mark Anthony Frassetto, Catholic Emancipation: 1760-1829, (January 9, 2013).
• Donn Short, Queering Schools, GSAs and the Law: Taking on God, (Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice, New York: Peter Lang, 2013).
• Wayne Barnes, Render Unto Rawls: Law, Gospel, and the Evangelical Fallacy, (January 11, 2013).
• Adilson Jose Moreira, We are Family! Legal Recognition of Same-Sex Unions in Brazil, (American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Joseph Benjamin Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, (Fordham Law Review, Vol. 81, 2012).
• Joseph Benjamin Landau, Symposium Foreword to Defense of Marriage Act: Law, Policy, and the Future of Marriage, (Fordham Law Review, Vol. 81, p. 537, 2012).
• Shafi'i Abdul Azeez Bello, Application of 'Urf in Islamic Law, (January 11, 2013).

From SmartCILP and elsewhere:

• Stewart L. Harris, Which Bible? Which God?, (12 Appalachian Journal of Law 151-166, 2012).
• Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, (JURIST - Forum, Jan. 7, 2012).

Recent Book:

• Andrew Koppelman, Defending American Religious Neutrality, (Harvard Univ. Press, Jan. 2013), reviewed by Daily Northwestern.

Hobby Lobby Finds Way To Delay Accrual of Affordable Care Act Penalties

Hobby Lobby, whose high-profile challenge to the Affordable Care Act contraceptive coverage mandate has so far been unsuccessful, has found a way to put off the accrual of $1.3 million per day fines that it would otherwise face for refusing to furnish employees health insurance coverage that meets minimum federal standards. As reported by CNN, in statement from its general counsel Hobby Lobby says it has shifted the beginning of its health care plan year, thus delaying for several months the requirement that it comply with the Women's Preventive Services coverage mandate.  Under the coverage guidelines, compliance is required at the beginning of the company's first plan year after Aug. 1, 2012.

Turkey Agrees To Return Land To Famous Orthodox Seminary

In 2011, Turkey's prime minister Recep Tayyip Erdogan issued a decree returning to minority religious groups hundreds of properties that have been seized since 1936. (See prior posting.) Now according to Greek Reporter, on January 11 Turkey’s Council of Foundations agreed to return 470 acres, of forest land to Aya Triada Monastery Foundation which owns Istanbul's Greek Orthodox Halki (Heybeliada) Seminary. This is the largest expanse of property returned to a non-Muslim community since the 2011 decree. The return is particularly notable because the now-closed seminary trained generations of Greek Orthodox leaders including Patriarch Bartholomew. A push to reopen the seminary has been a high-profile religious liberty issue internationally. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Green v. Sneath, (3d Cir., Jan. 7, 2013), the 3rd Circuit rejected an inmate's claim that his 1st Amendment and RLUIPA free exercise rights were infringed when his Qur'an was taken from him during his cell transfer.

In Curry v. California Department of Corrections, 2013 U.S. Dist. LEXIS 1659 (ND CA, Jan. 4, 2013), a California federal district court rejected challenges by an inmate who is an adherent of Shetaut Neter to prison officials' refusal to provide him with a Kemetic diet in place of one of the prison's existing religious meal plans.

In Kleinfeldt v. Gore, 2013 U.S. Dist. LEXIS 1618 (SD CA, Jan. 2, 2013), a California federal district court dismissed with leave to amend an inmate's complaint that he was given kosher meat that was inedible and so was forced to compromise his Jewish religious beliefs.

In Allah v. Virginia, 2013 U.S. Dist. LEXIS 2526 (WD VA, Jan. 8, 2013), a Virginia federal district court permitted an inmate to proceed with his challenge to prison officials' refusal to recognize as a religion the Nation of Gods and Earths, and their refusal to permit NGE inmates to meet and hold religious services and otherwise practice their religion.

In Gayle v. Lamont, 2013 U.S. Dist. LEXIS 3257 (ED PA, Jan. 9, 2013), a Pennsylvania federal district court dismissed on statute of limitations grounds claims of a Rastafarian inmate that he received meals that did not meet his vegetarian diet requirements.

In Munn v. Morris, 2013 U.S. Dist. LEXIS 3287 (WD AR, Jan. 8, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183982, Sept. 11, 2012) and dismissed an inmate's free exercise claim. The claim apparently was that the prison offered only Christian worship and had no chapel.

In Bowens v. Smith, 2013 U.S. Dist. LEXIS 2956 (ND NY, Jan. 8, 2013), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183948, Dec. 7, 2012) and permitted an inmate to proceed with his complaint that while he was in Administrative Segregation he was not permitted to attend congregate religious services or even have a minister visit him.

In Meece v. Commonwealth of Kentucky, (KY App., Jan. 11, 2013), a Kentucky state appeals court rejected a Jewish death row inmate's complaint that he was only allowed to visit the Institutional Religious Center at the prison on the same day as other death row inmates and was not allowed to visit there on Friday evenings and Saturday mornings to observe his Sabbath. He was restricted to observing his Sabbath from his cell.

Mennonnite-Owned Business Denied Preliminary Injunction Against Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Jan 11, 2013), a Pennsylvania federal district court refused to issue a preliminary injunction against enforcement of the Affordable Care Act’s contraceptive coverage Mandate in a suit brought by a small wood specialties manufacturing company and its five Mennonite Christian owners (the Hahn family). The Hahns believe it would sinful for them in any way contribute to the use of abortifacient contraception.

The court held that secular, for-profit corporations lack free exercise rights under the 1st Amendment and the Religious Freedom Restoration Act, despite the Supreme Court’s holding in Citizens United that corporations have free expression rights. The court also rejected the argument that the corporation could assert its shareholders’ free exercise, saying:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Moving to the owner’s own assertion of their free exercise rights, the court held that for 1st Amendment purposes, the Mandate is a neutral law of general applicability supported by a legitimate governmental interest.  The court also rejected the Hahn family’s claims under the Religious Freedom Restoration Act, concluding that the Mandate does not impose a substantial burden on their exercise of religion:

First, we reject the notion … that a plaintiff shows a burden to be substantial simply by claiming that it is….  

We also find that any burden imposed by the regulations is too attenuated to be considered substantial.  A series of events must first occur before the actual use of an abortifacient would come into play….. 

Finally, we understand, and have carefully considered the fact that the Hahns may be … more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to “pay for, facilitate, or otherwise support abortifacient drugs.” … We respect and fully appreciate this concern, and in no way dispute or denigrate its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However, a line must be drawn delineating when the burden on a plaintiff’s religious exercise becomes “substantial.”  We conclude that, here, that line does not extend to the speculative “conduct of third parties with whom plaintiffs have only a commercial relationship.”

The court also rejected plaintiffs’ Establishment Clause and free speech challenges to the ACA Mandate. (See prior related posting.)

Religion Clause readers may be interested in my new essay posted on Religion Dispatches discussing small business challenges to the contraceptive coverage Mandate.

Federal Court Refuses To Enjoin NYC Circumcision Informed Consent Rule

In Central Rabbinical Congress of the USA & Canada v. New York City Department of Health & Mental Hygiene, (SD NY, Jan. 10, 2013), a New York federal district court refused to issue a preliminary injunction to block enforcement of the New York City Health Department's rule requiring that a mohel (Jewish ritual circumciser) obtain a written informed consent form from parents before he performs a circumcision using the oral suction technique (metzitzah b'peh).  The rule stems from concerns that those Orthodox Jewish mohels using the method can pass on herpes infections to infants. (See prior posting.)  In a 93-page opinion, the court, rejected both compelled speech and free exercise facial challenges to the rules. The court concluded since parents will likely be able to obtain the consent forms from various sources, not just from the mohel who will perform the ceremony, parents will be able to give the signed form to the mohel without any communicative action by the mohel.  It found that for free exercise purposes, the health department regulation is a neutral law of general applicability that protects children's health and parents' ability to care for their children:

Although there are no known instances other than MBP in which direct oral suction during circumcision is practiced, the facial neutrality test is satisfied because the language of the regulation is secular.... Section 181.21 does not accomplish a “religious gerrymander[]” through underinclusiveness ..., nor does it impose “‘gratuitous restrictions’ on religious conduct” through overinclusiveness....

Reuters reports on the court's decision. (See prior related posting.)

Pastor Withdraws From Inaugural Benediction After Furor Over Past Anti-Gay Sermon

As previously reported, Rev. Louie Giglio had been invited to deliver the benediction at President Obama's inauguration later this month.  Now CNN and the New York Times report that Giglio has withdrawn from delivering the benediction in the wake of a furor created when a controversial anti-gay sermon he preached in the mid-1990's surfaced on Think Progress blog. In a statement delivered to the White House and the Presidential Inaugural Committee yesterday, Giglio said in part:

Due to a message of mine that has surfaced from 15-20 years ago, it is likely that my participation, and the prayer I would offer, will be dwarfed by those seeking to make their agenda a focal point of the inauguration. Clearly, speaking on this issue has not been in the range of my priorities in the past fifteen years. Instead, my aim has been to call people to ultimate significance as we make much of Jesus Christ.

The full text of the statement and additional comments have been posted by Giglio on PassionCityChurch blog.

Meanwhile, separately the Presidential Inaugural Committee yesterday announced that President Obama will take the oath on Sunday on the Robinson family Bible, and at the formal ceremonies on Monday will use two  Bibles-- one used by Abraham Lincoln at his first Inauguration (which Obama used in 2009), and a Bible used by the Reverend Dr. Martin Luther King, Jr.

British Appellate Tribunal Upholds Requirement That Christian Care Worker Must Work On Sundays

In Mba v. Mayor and Burgesses of the London Borough of Merton, (EAT, Dec. 13, 2012), Britain's Employment Appeal Tribunal rejected a religious discrimination claim by a care worker at a children's home who was required to work on Sundays in violation of her Christian religious beliefs.  It upheld a decision of an Employment Tribunal in the case that "the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified, so that she could lawfully be required to do so."   One ground of appeal was that the Tribunal had improperly considered whether not working on Sunday was a "core" Christian belief.  The Appeal Tribunal said that "by using the expression 'core' the Tribunal intended to reflect the evidence put before it from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work – it was thus permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith." The Guardian yesterday reporting on the opinion complains about the delay by the Employment Appeal Tribunal in posting decisions on its website.

High School Teacher Sues Over Directive To Remove Religious Materials From Classroom

A Cheektowaga, New York high school science teacher has filed a federal court lawsuit against her school district complaining that she was required to remove all personal non-curricular items of a religious nature from her classroom and refrain from promoting religion in her communications with students. The complaint (full text) in Silver v. Cheektowaga Central School District, (WD NY, filed 1/10/2013), asserts that plaintiff Joelle Silver is a devout Christian, and that the school district policy allows teachers to display personal messages, including inspirational messages, in their classrooms and offices-- such as those by the school's social worker promoting gay rights. School officials sent Silver a "counseling letter" telling her to remove from her classroom her posters containing religious messages, a drawing depicting 3 crosses, sticky notes she placed on her desk displaying Biblical quotations, and the Bible Study Club's prayer request box.  The letter also complained that Silver, as monitor of the school's Bible Study Club, was going further and participating in its meetings and activities in violation of school policy.  Silver claims these actions violate the free expression, establishment clause and equal protection provisions of the U.S. Constitution. American Freedom Law Center announced the filing of the lawsuit. The Buffalo News reports that the school's actions came after it received two letters from the Freedom From Religion Foundation.

Marine Corps Judge Advocate Says Base Spouse Clubs Must Admit Same-Sex Spouses

AP reported yesterday that the Marine Corps Staff Judge Advocate has advised its legal officers that spouses clubs operating on Marine bases must admit same-sex spouses. Private organizations are permitted to operate on military bases only if they do not discriminate on the basis of race, religion, gender, age, disability and national origin.  The Staff Judge Advocate advised: "We would interpret a spouses club’s decision to exclude a same-sex spouse as sexual discrimination because the exclusion was based upon the spouse’s sex." The memo was issued after a controversy last month at the Army's Fort Bragg base where a same-sex spouse was denied membership in the Association of Bragg Officer’s Spouses. God and Country blog covers the Marine Corps' latest action.

Ohio Middle School Will Not Remove Jesus Portrait

In the southern Ohio town of Jackson Tuesday night, the school board decided that it will not take down a picture of Jesus that has hung in Jackson Middle School since 1947, despite a complaint from the Freedom From Religion Foundation.  The Columbus Dispatch reports that 300 people turned out for the school board meeting, and only two spoke in favor of removing the picture.  School superintendent Phil Howard said: "the picture is legal because it has historical significance. It hasn’t hurt anyone." The picture was originally provided by a student club and hangs among other pictures in a "hall of honor."

Biden Meets With Faith Leaders On Gun Violence Issue

CNN reports that Vice President Joe Biden and his gun violence committee held an unannounced meeting last night with 12 national faith leaders representing Catholic, Protestant, Evangelical and Pentecostal Christian, Jewish, Muslim, Sikh and Hindu communities. Topics discussed included protection of religious buildings and religious intolerance. Biden asked the faith leaders to use their moral voices to find solutions to the gun violence problem. This was part of a series of meetings with various groups that have an interest in firearms and gun violence issues. (ABC News).

Suit Challenges New Hampshire Education Tax Credits

The ACLU announced yesterday the filing of a lawsuit in New Hampshire state court challenging New Hampshire's newly enacted Education Tax Credit program. Under the program businesses will receive a tax credit equal to 85% of the amount they donate to scholarship organizations that, in turn, fund private and religious elementary and secondary school students.Two-thirds of the state's private school students attend religious schools. The complaint (full text) in Duncan v. State of New Hampshire, (NH Super. Ct., filed 1/9/2013), was filed by the ACLU and Americans United on behalf of 8 plaintiffs. It contends that the tax credit program violates New Hampshire Constitution Part I, Art. 6 (no one shall  be compelled to support religious schools, and all denominations must be treated equally) and Part II, Art. 83 (no tax funds may be used for parochial schools).

Court Denies Small Business Preliminary Injunction Against Contraceptive Coverage Mandate

In Annex Medical, Inc. v. Sebelius, (D MN, Jan. 8, 2013), a Minnesota federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit medical device manufacturing company and its devout Catholic CEO.  The court concluded that there was not a likelihood that plaintiffs would succeed on the merits of their Religious Freedom Restoration Act claim because "the Mandate  places  only  a  de  minimis,  not  substantial,  burden  on plaintiffs’  practice  of  religion  under  RFRA." (See prior related posting.)

Rabbinical College Can Proceed With Facial Challenge To Land Use Ordinances

In a 102-page opinion, a New York federal district court in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Jan. 4, 2013), dismissed on ripeness grounds a number of "as applied" challenges to the land use ordinances of the Village of Pomona, New York. However the court permitted plaintiffs to proceed with facial challenges to the ordinances under the 1st and 14th Amendments, RLUIPA, the Fair Housing Act and the New York constitution. Plaintiffs alleged that the village adopted the land use ordinances with the deliberate purpose of preventing it from constructing a planned rabbinical college. Plaintiffs never filed a formal application for permission to build the college.  They were merely rebuffed by the village's attorney and in an informal exchange of letters the mayor said the village would not exempt the project from the village's zoning laws.