Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, 2013 U.S. Dist. LEXIS 8269 (WD PA, Jan. 22, 2013), a Pennsylvania federal district court denied defendants' motion to dismiss a challenge to the constitutionality of a 6-foot tall 10 Commandments monument that has stood for decades at the entrance to Valley High School.  After discussing what it sees as four different Establishment Clause tests that have been announced by the Supreme Court, the court concluded that while perhaps it may later find plaintiffs' case untenable, "a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs ... at least having stated a facially plausible claim." FFRF has links to all the pleadings in the case.

Cert. Denied In Challenge To Judge's Sentencing Remarks Invoking Religion

The U.S. Supreme Court yesterday denied certiorari in Deyton v. Keller (Docket No. 12-6230, cert. denied 1/22/2013) (Order List).  In the case, the U.S. 4th Circuit Court of Appeals denied a habeas corpus petition from 3 robbers who were sentenced to ten consecutive 64 to 86 month terms for their armed robbery of a church during Sunday services.  Petitioners unsuccessfully claimed that the judge's remarks during sentencing impermissibly referenced religious beliefs. (See prior posting.) The Christian Science Monitor reports on the Supreme Court's denial of review.

Court Documents Show Cover-Up of Abusive Priests By LA Archdiocese

The Los Angeles Times and New York Times reported yesterday that documents filed this month by the Catholic Archdiocese of Los Angeles in a civil action disclose more clearly than before that now-retired Cardinal Roger Mahony and his advisor on sex abuse cases, Msgr. Thomas J. Curry, worked to keep evidence of child molestation by three priests from law enforcement officials.  According to the LA Times:

Fifteen years before the clergy sex abuse scandal came to light, Archbishop Roger M. Mahony and a top advisor plotted to conceal child molestation by priests from law enforcement, including keeping them out of California to avoid prosecution, according to internal Catholic church records released Monday....

[M]emos written in 1986 and 1987 by Mahony and Msgr. Thomas J. Curry ... offer the strongest evidence yet of a concerted effort by officials in the nation's largest Catholic diocese to shield abusers from police. The newly released records, which the archdiocese fought for years to keep secret, reveal in church leaders' own words a desire to keep authorities from discovering that children were being molested.

In the confidential letters, filed this month as evidence in a civil court case, Curry proposed strategies to prevent police from investigating three priests who had admitted to church officials that they abused young boys. Curry suggested to Mahony that they prevent them from seeing therapists who might alert authorities and that they give the priests out-of-state assignments to avoid criminal investigators.

[Thanks to Scott Mange for the lead.] 

Burger King Franchise Settles Religious Accommodation Lawsuit

Courthouse News Service reports that the parties filed a joint motion for entry of a consent decree (full text) on Jan. 16 in EEOC v. Fries Restaurant Management LLC, (ND TX). In the suit, Ashanti McShan, a Pentecostal woman who was hired as a cashier at a Burger King franchise, alleged she was fired after defendant refused to accommodate her religious beliefs and allow her to wear a skirt instead of uniform pants. In the settlement, the restaurant agreed to pay McShan $5,000 in back wages and $20,000 for mental anguish and other damages. The company also agreed to post notices of its non-discrimination policy and conduct training sessions for managers.

Today Is 40th Anniversary of Roe v. Wade; Religious Attitudes and Positions On Repeal Vary

Today is the 40th anniversary of the U.S. Supreme Court's decision in Roe v. Wade. Last week, the Pew Research Center released a survey report titled Roe v. Wade at 40: Most Oppose Overturning Abortion Decision.  The survey found:

White evangelical Protestants are the only major religious group in which a majority (54%) favors completely overturning the Roe v. Wade decision. Large percentages of white mainline Protestants (76%), Black Protestants (65%) and white Catholics (63%) say the ruling should not be overturned. Fully 82% of the religiously unaffiliated oppose overturning Roe v. Wade.

Half of Americans who attend religious services at least weekly favor completely overturning the Roe v. Wade decision, compared with just 17% of those who attend less often.

Pew Forum has also compiled a guide to Religious Groups' Official Positions on Abortion, with links to material on the views of 17 major religious communities.

Georgia's Education Contribution Tax Credit Becomes Controversial Because of Anti-Gay Policies of Schools

The New York Times reported yesterday that the state of Georgia's popular tax credit program for contributions to private school scholarship programs has become controversial because more than 115 religiously sponsored schools that benefit from the program have explicit bans on attendance by gay, lesbian and bisexual students. A 17-page report (full text) issued this month by the Southern Education Foundation documents the problem. The issue is likely to gain attention as State Representative Earl Ehrhart plans to propose an increase in the total amount allocated for tax credits under the program. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Pasquale Annicchino and Nadia Marzouki, Mosques Controversies in the United States: Emotions, Politics and the Right to Religious Freedom, (Annuaire Droit et Religions, Vol. 6, 2012).
• Winnifred Fallers Sullivan, Being Human: Negotiating Religion, Law, and Science in the Classroom and the Courtroom, (January 16, 2013).
• Winnifred Fallers Sullivan, Religious and Legal Particularism and Universality, (January 16, 2013).
• Nehak Bhuta, Two Concepts of Religious Freedom in the European Court of Human Rights, (EUI Working Papers LAW No. 2012/33, Dec. 2012).
• Lance McMillian, Adultery as Tort, (North Carolina Law Review, Vol. 90, 2012).
• Caylee Hong and Rene Provost, Let Us Compare Mythologies, (January 17, 2013).
• Sherman J. Clark, To Teach and Persuade, (Pepperdine Law Review, Vol. 39, p. 1371, 2013).
• Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties, (Cambridge Univ. Press, Forthcoming).
• Elaine Craig, The Case for the Federation of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program, (Canadian Journal of Women and the Law, Vol. 25, No. 1, 2013).

From SmartCILP and elsewhere:

• Dimitri Cavalli, The Church, Nonprofits, and Taxes, (Catholic World Report, Jan. 18, 2013).
• Michael J. DeBoer, Religious Hospitals and the Federal Community Benefit Standard-- Counting Religious Purpose as a Tax-Exemption Factor for Hospitals, (42 Seton Hall Law Review 1549-1634, 2012).

Lots of Prayer Services Surround Inauguration Today-- Diversity and Controversy

Yesterday, the day of President Obama's official swearing-in, the Obama family attended Sunday services at the historic Metropolitan African Methodist Episcopal Church in Washington. (Huffington Post).  Today's formal Presidential inauguration events will begin with the President attending a worship service at St. John's Episcopal Church across Lafayette Square from the White House. An inauguration day prayer service attended by the President prior to his swearing-in has been a tradition since the time of Franklin Roosevelt. On Tuesday, the President, Vice-President and their spouses will attend the 57th Presidential Inaugural Prayer Service, an interfaith service at Washington National Cathedral. (CNN).

Meanwhile today, two unofficial prayer breakfasts are planned in Washington. (Toledo Blade.) The one sponsored by religious conservatives at the Washington Marriott Wardman Park hotel, the Presidential Inaugural Prayer Breakfast, has become so controversial that the Senate Chaplain, Rev. Barry Black, has withdrawn. However the House Chaplain Rev. Patrick J. Conroy will attend. According to Washington Whispers, the breakfast: "features special guests Pat Robertson, a televangelist whose commentary has managed to offend gays, Haitians and feminists alike, Jonathan Cahn, a preacher who believes some of Obama's actions are apocalyptic, and Joseph Farah, the editor of WorldNetDaily who has long pushed the birther conspiracy theories about the president's citizenship." A second prayer breakfast, sponsored by Ask for America, will be held at the Willard Intercontinental Hotel. It will feature speakers more in line with President Obama's outlook, including Ambassador Suzan Johnson Cook, International Ambassador for Religious Freedom; Rev. Luis Cortes, Jr. President of Esperanza; Dr. Meadowlark Lemon, Mr. Basketball of the Harlem Globetotters; Brian Roquemore, America's All Stars Youth Organization; and Bishop Roderick Caeser, Bethel Gospel Tabernacle, Queens NY.

All of this of course is in addition to the previously reported switch in pastors for the benediction at the formal Inauguration Ceremony.

Recent Prisoner Free Exercise Cases

In Jordan v. Fuller, (10th Cir., Jan. 9, 2013), the 10th Circuit affirmed the dismissal of a claim by an inmate claiming to be affiliated with a religion known as the Ever Increasing Faith alleging violation of his rights when he was refused a non-meat diet.

In Medina v. Youngblood, 2013 U.S. Dist. LEXIS 5481 (ED CA, Jan. 14, 2013), a California federal magistrate judge permitted a Messianic Jewish inmate to pursue his claim for a kosher diet, but rejected his complaint he was denied religious literature.

In Lewis v. Skolnik, 2013 U.S. Dist. LEXIS 6618 (D NV, Jan. 16, 2013), a Nevada federal district court allowed a Hebrew Israelite inmate to proceed with his equal protection challenge to a prison rule that limited kosher meals to inmates who obtained outside verification that they were Orthodox or Conservative Jews. Certain other claims were dismissed.

In Cunningham v. Womack, 2013 U.S. Dist. LEXIS 6286 (WD KY, Jan. 15, 2013), a Kentucky federal district court dismissed a pre-trial detainee's complaint, including a complaint that on one occasion he was told to leave the worship service he had attended numerous times before.

In Hewitt v. Morris, 2013 U.S. Dist. LEXIS 6313 (D SC, Jan. 15, 2013), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 184677, Dec. 20, 2012) and awarded nominal damages of $1 plus costs to an inmate who complained that he was denied Vaisnavism (Krishna Consciousness) services and religious materials because the Department of Corrections refused to recognize Krishna Consciousness as a religion.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 7804 (SD OH, Jan. 18, 2013), an Ohio federal magistrate judge recommended denying defendants' claim that a Christian Identity inmate had not exhausted his administrative remedies in attempting to obtain accommodation of dietary and hair length needs so he could take a Nazarite vow.

Appeals Court Upholds Rabbi's Firing With Differing Views On Ministerial Exception

In Ballaban v. Bloomington Jewish Community, (IN App., Jan. 17, 2013), a 3-judge Indiana appellate court, with each judge writing a separate opinion, rejected a rabbi's claim that he had been wrongfully dismissed as congregational rabbi before the end of his 3-year contract.  The congregation claimed that the firing was the result of complaints about the rabbi's angry outbursts and hostile behavior and his placing the tax exempt status of the synagogue at risk by accepting a donation intended for a single recipient and assuring the donor it would be tax deductible. Rabbi Steven Ballaban claimed he was fired in retaliation for his reporting to authorities possible improper conduct by a teacher accused of massaging children under their clothes. The trial court held that while it is likely that Indiana law bars discharge of a member of the clergy for reporting child abuse, plaintiff failed to show that is why he was fired. On appeal, the congregation urged that the trial court was correct because the ministerial exception applies to require dismissal of the suit.  All 3 appeals court judges would affirm the trial court's dismissal of Ballaban's suit, but each on different reasoning.

Judge Brown held that the court need not decide whether the ministerial exception applies when a minister's employment was terminated for reporting child abuse or neglect since the ministerial exception does apply to firings for the other reasons put forward by the congregation, and on appeal Ballaban (appearing pro se) does not challenge the termination of his employment on these grounds. Judge Bailey concurred, arguing:

We should not, and cannot, be drawn into deciding whether an individual engaged in conduct becoming a spiritual leader. Accordingly, the ministerial exception applies and our discussion should proceed no further, despite Rabbi Ballaban’s vigorous efforts to recast the dispute as purely secular conduct involving a statutory duty to report.

Judge Vaidik concurred, saying that: "the ministerial exception does not allow a congregation to fire a spiritual leader who refuses to commit a criminal offense... [However] the designated evidence does not reveal that the reason for Ballaban’s termination was his child-abuse reporting."

NYT: Same-Sex Married Couples Face Continuing Unequal Treatment In Military

A front-page article in today's New York Times explores the continuing unequal treatment of married same-sex couples in the military.  Despite the repeal of Don't Ask, Don't Tell, the Defense of Marriage Act still bars recognition of same-sex marriages for purposes of various benefits. There is also less formal discrimination. At a military retreat at Ft. Bragg designed to help couples cope with the pressures of deployments and relocations, a same-sex couple was asked to leave because they were making others uncomfortable. The retreat was organized by military chaplains, and the lesbian couple had been told in advance that they were welcome. The chaplains now say that was erroneous advice.

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."