District Court Extends Bivens To Damage Actions For Free Exercise Violations

In an important decision last week, a New York federal district court judge extended the Bivens damage remedy for violation of constitutional rights to deprivations of First Amendment free exercise rights.  Turkmen v. Ashcroft, (ED NY, Jan. 15, 2013), grew out of federal government investigative actions in the wake of the 9/11 attacks.  Arab and Muslim non-citizens who had violated the immigration laws were arrested and placed in harsh confinement conditions for several months to encourage their cooperation. According to the court, as part of the operation, officers at the Metropolitan Detention Center and the Passaic Jail interfered with Muslim detainees' ability to observe their religion:

[W]hen the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory anti-Muslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray.

The court held that even though the Supreme Court in the Iqbal case expressed skepticism on whether Bivens should be available for free exercise violations, it would extend Bivens because otherwise there is no remedy available to plaintiffs for the free exercise violations:

[P]laintiffs are not complaining simply about facially neutral BOP policies that substantially burden their free exercise of religion. If they were, I might conclude that their “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief . . . and grievances filed through BOP’s Administrative Remedy Program ... provides sufficiently meaningful redress to preclude the implication of a Bivens damages remedy. But the plaintiffs allege a series of acts that were directed only at them (and the class of detainees they seek to represent) with the specific intent to deny them the right to practice their religion... The precise purpose of the Bivens damages remedy is to deter individual officers from engaging in such unconstitutional conduct.

The court also allowed plaintiffs to move forward with their Bivens equal protection claim against MDC officials charging implementation of policies specifically targeting Arabs and Muslims.

The Center for Constitutional Rights has background and links to all the primary source documents in the long running case that was filed as a class action.

Pakistan's Ambassador To U.S. Faces Blasphemy Investigation At Home

According to reports this week from the Pakistan News Service and from Dawn, a two-judge panel of Pakistan's Supreme Court has ordered the Multan City Police Officer to investigate a complaint that Pakistan's ambassador to the United States, Sherry Rehman, committed blasphemy in November 2010 in an interview on a talk show on a private TV channel.  Presumably the interview related to Rehman's attempt at that time to get the National Assembly to eliminate the death penalty for blasphemy. Lower courts had refused to register a case against Rehman. According to NBC News, the complaint against Rehman was filed by Muhammad Faheem Ahkter Gill, a 31-year-old owner of a marble business in the city of Multa who said he felt it was his responsibility to do something about the remarks by Rehman which he felt were derogatory to the Prophet Muhammad.

Canadian Law Deans Oppose New Christian Law School Because of Its Bar On Same-Sex Relationships

In Canada last June, Trinity Western University, a Christian liberal arts university in British Columbia, proposed to start a new law school. This week, the Vancouver Sun and the National Post report that deans of other Canadian law schools are opposing the proposal because of its Biblical-based "community covenant" which requires staff, faculty and students to refrain from homosexual relationships (as well as gossip, lying, smoking and consuming alcohol).  In a letter to the Federation of Canadian Law Societies from the Council of Canadian Law Deans written last November, but only made public recently, the deans say:

This is a matter of great concern for all members. … Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.

The deans also question whether true academic freedom exists at the university because of the community covenant. However supporters of the university say that the deans have an anti-religious bias. In 2001, the Canadian Supreme Court in Trinity Western University v. British Columbia College of Teachers, upheld  the right of Trinity Western's teacher training program to apply the community covenant to bar homosexual relationships.

Tax Court Rejects Free Exercise and Equal Protection Challenge To Exclusion of Navajo Clan Relatives As Children

In Begay v. Commissioner, (USTC, Jan. 16, 2013), the U.S. Tax Court held that the definition of dependents in Sec. 152 of the Internal Revenue Code does not violate the free exercise or equal protection rights of a taxpayer who is a tribal elder of the Navajo Indian Nation.  At issue was the government's refusal to allow petitioner to treat a "clan relative" as a "qualifying child" in order to obtain head of household filing status, the earned income credit, and child tax credit. In Navajo culture and tradition, children are considered children of everyone in their clan. Taxpayer argued that the exclusion from the section 152(c)(2) of obligatory clan-based relationships violates her free exercise and equal protection rights.

4th Circuit: Public Schools Not Required To Provide Rehabilitation Act Services To Students In Private Religious Schools

In D.L. v. Baltimore City Board of School Commissioners, (4th Cir., Jan. 16, 2013), the U.S. 4th Circuit Court of Appeals held that Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) does not require the Baltimore city school board to provide educational services to students enrolled in private religious schools.  Here the parents of a student in a Jewish school sought special services for their 8th grader who suffered from ADHD and anxiety.  The court also concluded that requiring a student to enroll in public school in order to access Section 504 services does not unconstitutionally infringe free exercise rights or parents' right to choose a private religious school for their child. It said:

The right to a religious education does not extend to a right to demand that public schools accommodate Appellants’ educational preferences.... The school board need not serve up its publicly funded services like a buffet from which Appellants can pick and choose.

USCIRF Calls on Iran To Release American Pastor Held On National Security Charges

The U.S. Commission on International Religious Freedom issued a press release on Wednesday calling for the government of Iran to release Iranian-American pastor Saeed Abedeni who was arrested in September for his involvement with the underground house church movement. According to USCIRF:

The national security charges leveled against Mr. Abedini are bogus and are a typical tactic by the Iranian government to masquerade the real reason for the charges: to suppress religious belief and activity of which the Iranian government does not approve.

Abedini apparently is scheduled to come before Revolutionary Court judge Pir-Abbassi next week. The judge is known for swift trials and harsh penalties.

Cemetery Trust Assets Included In Bankruptcy Estate of Milwaukee Archdiocese

In Listecki v. Official Committee of Unsecured Creditors, (ED WI Bkrptcy., Jan. 17, 2013), a Wisconsin federal bankruptcy court rejected attempts by the Archbishop of Milwaukee in the Archdiocese's Chapter 11 reorganization case to shield assets of a Catholic Cemetery Perpetual Care Trust from creditors. The Trust argued that including its assets in the bankruptcy estate would violate the Religious Freedom Restoration Act and the free exercise clause of the 1st Amendment. The court disagreed, concluding that RFRA only applies against the government, not in a suit against the creditors' committee which not a government actor and is not acting under color of law.  The court also concluded that RFRA may not be used to invalidate a state law, such as the Wisconsin fraudulent transfer law; and neutral, generally applicable provisions of the Bankruptcy Code do not violate the 1st Amendment's free exercise clause.

Meanwhile, the Milwaukee Journal-Sentinel reported yesterday that in the Archdiocese's bankruptcy proceedings, lawyers for sex-abuse victims are now asking the court to make public all records involving credibly accused priests, as well as their depositions and other documents. The request comes after a controversy over the Archdiocese's failure to provide the Fond du Lac police department information on an accused and defrocked priest.

Catholic Schools In Indonesian Municipality Agree To Give Koranic Education To Muslim Students

The Jakarta Post reported yesterday that six Catholic schools in the Indonesian municipality of Bitar, East Java, have agreed to provide offsite Islamic lessons to their Catholic students in compliance with Mayoral Decree No. 8/2012 issued last year requiring all Muslim students to be able to read and write Koranic verses. City officials had threatened to close down the six schools if they did not comply.  Indonesia's education law provides that every student is entitled to receive religious education imparted by an educator of the his or her religion, and that the government must furnish such teachers if a private school cannot do so. Apparently this provision has not been enforced against Islamic schools that have Buddhist, Christian or Hindu students enrolled.

Another Missouri Town Enacts Funeral Picketing Ban

Citing an 8th Circuit en banc decision last October upholding another Missouri town's funeral picketing ban, Creve Coeur, Missouri has now passed its own ordnance aimed at picketing by the Kansas-based Westboro Baptist Church.  The Creve Coeur Patch reported that the ordinance, passed last Monday, bans protests knowingly taking place within 300 feet of "any residence, cemetery, funeral home, church, synagogue, or other establishment or location during or within one (1) hour before or one (1) hour after any actual funeral or burial service at that place."

Contempt Sanctions Imposed On Russian Government For Failure To Return Expropriated Jewish Books

In Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Jan. 16, 2013), the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order.  Blog of the Legal Times reports on the decision.

UPDATE: According to Interfax (Jan. 17), the Russian presidential representative for international cultural cooperation Mikhail Shvydkoy does not understand the court's contempt findings. He said:

Russia earlier honored all agreements on this issue. The problem was discussed within the Gore-Chernomyrdin commission's framework, and we reached quite a reasonable compromise with the American side then. We set up the Center of Oriental Literature at the Russian State Library, where, in particular, the Schneerson collection is stored, and it is accessible to any citizens, including Russian and others. A prayer room was also set up there, where religious cults can be observed. I had assumed the issue was settled.

He added: "Transferring books from the Russian State Library violates the law, it is prohibited."

Study On Texas Public School Bible Courses Released

Yesterday the Texas Freedom Network released a study titled Reading, Writing & Religion II: Texas Public School Bible Courses in 2011-12. Key findings are:

Many Bible course teachers lack the proper training required by the Legislature. Moreover, curriculum standards adopted by the State Board of Education are far too broad to help school districts create academically sound and legally appropriate courses. Consequently, many courses are not academically rigorous and include numerous errors, distortions and other problems.

Many Bible courses reflect the religious beliefs of the teachers and sectarian instructional materials they use in their classrooms. In every course in which religious bias is present, instruction reflects a Protestant -- most often a conservative Protestant -- perspective, including a literal interpretation of the Bible.

Many courses teach students to interpret the Bible and even Judaism through a distinctly Christian lens. Anti-Jewish bias -- sometimes intentional but often not -- is not uncommon.

A number of courses and their instructional materials incorporate pseudo-scholarship, including claims that the Bible provides scientific proof of a 6,000-year-old Earth (young Earth creationism) and that the United States was founded as a Christian nation based on biblical Christian principles. At least one district's Bible course includes materials suggesting that the origins of racial diversity among humans today can be traced back to a curse placed on Noah's son in the biblical story of the flood. Such claims have long been a foundational component of some forms of racism.

Despite the state's failure to implement HB 1287 effectively, a number of school districts did succeed in offering Bible courses that largely comply with legal and constitutional requirements, are academically serious and avoid many of the serious problems noted in most other districts. These successful courses can be found in urban, suburban and rural districts.

1st Circuit: Establishment Clause Challenge To HHS Contract With Bishops Is Moot

In American Civil Liberties Union of Massachusetts v. United States Conference of Catholic Bishops, (1st Cir., Jan. 15, 2013), the U.S. 1st Circuit Court of Appeals remanded with instructions to dismiss as moot a suit brought in 2009 alleging that the U.S. Department of Health and Human Services violated the Establishment Clause when it contracted with the U.S. Conference of Catholic Bishops to provide services under the Trafficking Victims Protection Act. The appeals court held that the expiration of the contract with USCCB rendered the challenge moot, rejecting the district court's conclusion that the case fell under the "voluntary cessation" exception to the mootness doctrine. The 1st Circuit also held that the exception for conduct "capable of repetition, yet evading review" does not apply. [Thanks to Alliance Alert for the lead.]

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute for Religious Freedom in 1786.  Each year the President issues a proclamation marking the day. So far this year's proclamation has not been posted on the White House website.  Presumably it will appear later today and this post will be updated with a link to it.

UPDATE: Here is the Presidential Proclamation-- Religious Freedom Day 2013.

New Pick To Deliver Inauguration Benediction Reported

CNN reports that Rev. Luis León, pastor of St. John's Episcopal Church, located across Lafayette Park from the White House, has been chosen to deliver the benediction at President Obama's inauguration next Monday. León replaces evangelical pastor  Louie Giglio who withdrew after an anti-gay sermon he preached in the 1990's surfaced. (See prior posting.) León, a naturalized citizen, was born in Cuba and came to the United States at age 11.

Polish Court Upholds Cross Hanging In Parliament

According to a report yesterday from Polskie Radio, a trial court in Poland has ruled against 7 members of Parliament from the anti-clerical Palikot's Movement party who sought to have a cross that hangs in the debating chamber of Parliament removed.  Plaintiffs claimed that the presence of the cross favored one religion over another.  However, Judge Alicja Fronczyk held that "the presence of a religious symbol in a public place, such as parliament, does not violate freedom of conscience." Plaintiffs intend to appeal.

Another Small Business Challenge To Federal Contraceptive Coverage Mandate Filed

Yet another lawsuit by a for-profit small business challenging the Affordable Care Act contraceptive coverage mandate was filed Monday-- this time by a Missouri-based plumbing products corporation and its Catholic owners.  The complaint (full text) in Sioux Chief Mfg. Co., Inc. v . Sebelius, (WD MO, filed 1/14/2013), contends that the mandate violates plaintiffs' rights under the 1st and 5th Amendments, the Religious Freedom Restoration Act, and the Administrative Procedure Act.  Alliance Defending Freedom issued a press release announcing the filing of the case.

TRO Issued In Small Business Conscience Challenge To State Contraceptive Mandate

In recent months there has been an outpouring of religious liberty concerns over the federal contraceptive coverage mandate. However, as pointed out by The Catholic Review, 28 states have their own contraceptive coverage mandates, albeit with religious employer exemptions of various sorts, and often with exclusions for self-insured ERISA plans. Courts in New York and California have upheld state mandates over objections of church agencies, and the U.S. Supreme Court refused review in both cases.  Now a new challenge to a state mandate-- this time in Illinois-- has met initial success in a case brought by a Catholic-owned small business.  Triune Health Group, Inc. has already won a preliminary injunction against the federal mandate. (See prior posting.) Now, in Yep v. Illinois Department of Insurance, (Dupage Co. IL Cir. Ct., Jan. 15, 2013), an Illinois state trial court has issued a temporary restraining order against the Illinois state insurance mandate (215 ILCS 5/356z.4) in a suit by Triune and its Catholic owners who claim that the state mandate violates the rights guaranteed to them by the Illinois Religious Freedom Restoration Act, the Illinois Health Care Right of Conscience Act and the Illinois state constitution.  The court concluded that "Plaintiffs have raised a fair question as to the likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise." Thomas More Society issued a press release announcing the decision.

Zoning Challenge Fails Under RLUIPA But Succeeds On Other Grounds

In New England Prayer Center, Inc. v. Planning & Zoning Commission of the Town of Easton, 2012 Conn. Super. LEXIS 3063 (CT Super, Dec. 13, 2012), the New England Prayer Center sought a special permit so it could build a house of worship on land it leased from the town.  The Zoning and Planning Commission granted the permit only with a number of conditions attached. Plaintiff challenged 5 of the conditions. A Connecticut state trial court held that plaintiff had not shown RLUIPA violations, but the court sustained on other grounds plaintiff's objections to the conditions placed on it. The trial court speculated that plaintiff had purposely made little effort to focus on RLUIPA claims in order to later assert those claims in federal court, as permitted by 42 USC 2000cc-2(c) where there has not been a full and fair adjudication of the claim in state court.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

Bibliography of 2012 Law and Religion Publications Released By AALS

The AALS Section on Law and Religion has just issued its Dec. 2012 Newsletter which includes a comprehensive 20-page bibliography of relevant books and articles published during 2012, as well as a list of blogs relating to law and religion. (Note: The linked newsletter is an updated Jan. 22 version).