Religion Clause

Monday, January 28, 2013

Sunday, January 27, 2013

Today Is International Holocaust Memorial Day

Today is International Holocaust Memorial Day-- so designated by the United Nations which chose the date of the liberation of Auschwitz-Birkenau for the commemoration. (Holocaust Memorial Museum). President Obama issued a statement (full text) saying in part:

On January 27th, International Holocaust Remembrance Day, we honor the memories of the 6 million Jews and millions of other innocent victims whose lives were tragically taken during the Holocaust over sixty years ago. Those who experienced the horrors of the cattle cars, ghettos, and concentration camps have witnessed humanity at its very worst and know too well the pain of losing loved ones to senseless violence.

But while this is a time for mourning and reflection, it is also the time for action. On this day, we recall the courage, spirit, and determination of those who heroically resisted the Nazis, exemplifying the very best of humanity. And like these courageous individuals, we must commit ourselves to resisting hate and persecution in all its forms.

According to Deutsche Welle German Chancellor Angela Merkel in her weekly online podcast said in part:

Naturally, [Germany has] an everlasting responsibility for the crimes of national-socialism, for the victims of World War II, and above all, for the Holocaust.

Court Rejects Religious Discrimination Claim Against School For Not Passing Student

In Kajoshaj v. City of New York, (ED NY, Jan. 23, 2013), a New York federal district court rejected claims by an Albanian-American Muslim that the New York City schools discriminated against his son on the basis of religion and national origin when Public School 180 kept his son in 5th grade rather than passing him to the 6th grade. The court rejected plaintiff's claim under Title VI of the 1964 Civil Rights Act, quoting New York courts in saying: "Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance." The court also rejected equal protection, due process and state law challenges.

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, 2013 U.S. Dist. LEXIS 8816 (SD GA, Jan. 23, 2013), a Georgia federal magistrate judge allowed an inmate to proceed with his complaint that prison authorities have not allowed him to have Santeria beads, cowrie shells, or his Bible.

In McBryde v. Thomas, 2013 U.S. Dist. LEXIS 8492 (D MT, Jan. 22, 2013), a Montana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185017, Nov. 27, 2012) and permitted an inmate to proceed against various defendants with his complaint that he was required to participate in an AA/NA program with religious content.

In Sampson v. Lee, 2013 U.S. Dist. LEXIS 8628 (WD VA, Jan. 22, 2013), a Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185003, Dec. 19, 2012) and dismissed an inmate's complaint that he was removed from a no-pork special diet for 14 days.

In Holmes v. Conway, 2013 U.S. Dist. LEXIS 8138 (ND GA, Jan. 18, 2013), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 184982, Dec. 21, 2012) and dismissed an inmate's complaint that he was denied a Halal diet. Jail officials offered him a vegetarian diet, and the jail does not serve pork.

In Hachmeister v. Kline, 2013 U.S. Dist. LEXIS 8323 (D KS, Jan. 22, 2013), a Kansas federal district court held that a Muslim inmate's clam for damages of $100 million because of an alleged denial of 8 of his religious meals are completely conclusory and subject to dismissal unless plaintiff files an amended complaint alleging appropriate facts.

In McDaniel v. Fizer, 2013 U.S. Dist. LEXIS 9622 (D AZ, Jan. 24, 2013), an Arizona federal district court allowed a Muslim inmate to proceed with his complaint against certain of the defendants that authorities denied him a kosher diet for 11 months.

Suit Claims State Cannot Bar Religious Discrimination In Hiring At For-Profit Christian School

California's Fair Employment and Housing Act contains an exemption for non-profit religious associations or corporations. (Govt. Code Sec. 12940(j)(4)(B)). The Ventura County Star reported on Friday that two former teachers at a Christian school in Thousand Oaks, California have threatened to file a lawsuit challenging their firing. They were dismissed after they refused to provide Little Oaks School with a statement of faith and a reference from a pastor. The school is incorporated as a for-profit corporation, but is owned by the non-profit Calvary Chapel of Thousand Oaks. As a pre-emptive measure last Wednesday, the school filed a federal court lawsuit against the two teachers and their law firm attempting to enjoin them from filing a lawsuit in state court. The school argues that the California Fair Employment and Housing Act is unconstitutional insofar as it restricts a religious school's hiring practices, even when the school is incorporated as a for-profit institution.

Saturday, January 26, 2013

Court Orders Legion of Christ Documents Unsealed

In Dauray v. Estate of Mee, (RI Super. Ct., Jan. 23, 2013), a Rhode Island Superior Court permitted the AP, the New York Times, the Providence Journal and the Catholic Reporter to intervene to challenge a protective order that had been entered by a probate judge sealing documents that had been produced during discovery by the scandal-ridden Legion of Christ. Plaintiff, who attempted to claim that her aunt was improperly induced to leave the Legion $60 million in her will, also challenged the protective order. The court held:

The Moving Parties ... clearly ... have a right of access to the exhibits filed with the Motion for Summary Judgment because the Court relied on those documents as part of its adjudicating function.... Additionally ... the Moving Parties have a right of access to discovery motions and their related exhibits..... The public has a great interest in the openness of its courts.... [P]ublic scrutiny of the courts provides a check on the judiciary and ―diminishes the possibilities for injustice, incompetence, perjury and fraud.

AP reports on the lifting of the protective order and says that the Legion immediately filed a motion to block release of the documents. In an earlier decision, the court held that the niece lacked standing to bring the challenge to her aunt's will. (See prior posting.)

Friday, January 25, 2013

Milwaukee Archdiocese Approaching Insolvency In Reorganization

The Milwaukee Journal-Sentinel reported yesterday that the Catholic Archdiocese of Milwaukee is approaching administrative insolvency in its Chapter 11 bankruptcy reorganization. It has filed a motion asking the bankruptcy court to suspend most of its payments to attorneys and consultants. Otherwise, by April it will have a cash shortfall of $488,000. If it falls into administrative insolvency, the bankruptcy judge could appoint a trustee to manage the Archdiocese's day-to-day affairs, or could totally dismiss the case which would allow creditors to sue in state court. The Archdiocese will continue to use funds from its insurers to pay lawyers to oppose sex abuse claims.

Plea Deal Reached In Church Youth Group Mock Kidnapping Case

A church in Dauphin County, Pennsylvania and its pastor have reached a plea agreement with prosecutors in connection with charges growing out of a church youth group activity that went awry. The Harrisburg Patriot-News reported yesterday on the assault and false imprisonment charges that were brought against Glad Tidings Assembly of God of Lower Swatara Township and youth pastor Andrew Jordan who staged a mock kidnapping at a youth group meeting to dramatize the dangers faced by missionaries in some countries. A mother of a 14-year old girl who was frightened by the kidnapping complained to authorities. Under the plea agreement, the church will pay a $10,000 fine, and the youth pastor will avoid a criminal record through the accelerated rehabilitative disposition program. He will pay a $500 penalty, serve up to a year of probation and do 50 hours of community service. (See prior related posting.) [Thanks to Carl H. Silverman for the lead.]

Another Small Business Challenge To ACA Mandate Filed

Another for-profit closely-held business has joined the stream of those suing to challenge the Affordable Care Act contraceptive coverage mandate on the ground that it violates the religious beliefs of the company owners. The complaint (full text) in Gilardi v. U.S. Department of Health and Human Services, (D DC, filed 1/24/2013) challenges the application of the mandate to two related corporations, Freshway Foods and Fresway Logistics, Inc., which process, pack and ship fresh produce. One of the companies has 340 full-time employees, while the other has 55. The two individual plaintiffs, who each own 50% of the shares of each company, are Catholics who believe in the Catholic Church's teachings on abortion, sterilization and contraception. The complaint alleges RFRA, free exercise, free speech and Administrative Procedure Act violations. American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Contraceptive Mandate Challenge By Pennsylvania Diocese Dismissed On Ripeness Grounds

In Persico v. Sebelius, (WD PA, Jan. 22, 2013), a Pennsylvania federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act's contraceptive mandate brought by the Catholic Diocese of Erie, Pennsylvania and two organizations affiliated with Pennsylvania Catholic Charities. As have most other courts that have dealt with challenges to the ACA mandate by religious non-profit employers, the court concluded:

Under the "safe harbor" provisions established by current regulations, Plaintiffs are protected from any potential enforcement action relative to the Mandate until at least January 1, 2014. In addition, the Defendants have repeatedly stated their intent to amend the Mandate, well before January 1, 2014, for the express purpose of accommodating the Plaintiffs' religiously motivated objections to the regulation.

Thursday, January 24, 2013

Fundamentalist Pastor Changes Name of Radio Show To Settle Infringement Suit

The Denver Post reported last week on the settlement of a lawsuit filed in New York federal district court last November by National Public Radio's Science Friday against fundamentalist Christian pastor Bob Enyart. The suit charged Enyart with trademark infringement and cybersquatting. Enyart used the name "Real Science Friday" for his radio show that was devoted to challenging mainstream science reporting on the age of the earth and evolution. The NPR program was concerned that people searching for it would be confused and go to Enyart's program. A confidential settlement was confirmed by a court order issued in December. As part of the settlement, Enyart changed the name of his broadcasts to Real Science Radio. [Thanks to John Kulesz for the lead.]

Catholic Hospital's Defense In Wrongful Death Case Apparently Contradicts Catholic Teachings

Denver Westward News and the Colorado Independent this week report on a wrongful death lawsuit against Catholic Health Initiatives that runs a hospital in Canon City, Colorado in which the hospital's defense seems to contradict teachings of the Catholic Church. Jeremy Stodghill sued the hospital for the death of his pregnant wife and the twins she was carrying. Lori Stodghill, who weighed over 400 pounds, died in the hospital's emergency room of a pulmonary embolism. Plaintiff argues that at least the hospital should have performed a cesarean section to save the twins. A trial court and the state court of appeals so far has accepted the hospital's defense is that the fetuses are not persons under the wrongful death statute. This is consistent with a long-standing interpretation by state courts that define "person" under the Wrongful Death Act to include only those born alive. Stodghill has appealed to the state Supreme Court.

Maryland High Court Says Apartment Building Housing Mormon Ordinance Workers Is A Tax Exempt Convent

In Green v. Church of Jesus Christ of Latter-Day Saints, (MD Ct. App., Jan. 23, 2013), the Maryland Court of Appeals, the state's highest court, ruled that an apartment complex owned by the Mormon Church used to house a revolving group of ordinance workers who perform religious ceremonies full-time for a two-year period at the Church’s Washington, D.C. Temple is entitled to a tax exemption as a "convent." The majority of these workers are retired married couples. The court interpreted "convent" as used in Md. Code 7-204 to mean "a community of people who live together, follow strict religious vows, and devote themselves full-time to religious work." The court held that the Tax Court's narrower definition accorded only with certain religious traditions such as the Catholic or Anglican churches.

Supreme Court Denies Cert. In Challenge To Grant For Restoring Bald Knob Cross

On Tuesday, the U.S. Supreme Court denied certiorari in Sherman v. Illinois, (Docket No. 12-621, cert. denied 1/22/2013). (Order list.) In the case, the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacked taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross as part of the cost of restoring the Bald Knob Cross, an Illinois tourist attraction. Nor could he force Friends of the Cross to return the funds to the state. (See prior posting.) The Southern Illinoisan reports on the Supreme Court's denial of review and the reactions of those involved. Sherman, in a posting on his website, said: "Today's refusal to take my case means that any Legislative body, whether it be Congress, a State Legislature or a local unit of government, can make blatantly unconstitutional grants to advance religion simply by naming an Executive Branch agency as the middleman in the transaction.... What a fraud against the taxpayers of this country."

Ex-Scientologists Sue Charging Church With Fraud and Deception

The Tampa Bay Times reports that a lawsuit was filed Wednesday in a Florida federal district court against the Church of Scientology by a California couple, Luis and Rocio Garcia, who charge 5 Scientoloty entities with fraud and deception. The Garcia's say they gave the church $340,000 for a planned "Super Power" building in Clearwater, Florida that after 14 years is still incomplete. They claim that Scientology purposely kept the building incomplete in order to raise more money for it. They also seek return of $69,000 the put on deposit for counseling and for meals and accommodations aboard Scientology's cruise ship. They also say they gave over $40,000 to the International Association of Scientologists in fundraising appeals for projects that did not exist or were misrepresented. Among other things, the Garcia's allege that Scientology made a video using actors to impersonate earthquake victims. The Garcia's, who no longer belong to Scientology, gave it $1.3 million during their 28 years as church members, and spent $300,000 on Scientology services. The lawsuit particularly focuses on the role of Scientology leader David Miscavige. A Scientology spokesperson said : "This frivolous suit is filed by the same group of apostates the [St. Petersburg] Times has been supporting for four years..." The St. Petersburg Times ran a long expose on the church in 2009. (See prior posting.)

Suit Challenges NY Exclusion of Religious Schools From Child Protection Requirements

Vos Iz Neias? reported yesterday on a federal lawsuit filed in a New York federal district court by a minor student enrolled in a Nassau county yeshiva and by her father against the New York State Assembly and its legislative leaders. The suit claims that students' equal protection and free exercise rights are violated by the state legislature' exclusion of religious schools from state child protection laws that are mandatory in public schools. Among the requirements at issue are schools educating students in abduction prevention, running fingerprint and criminal background checks on all employees and a requirement to report child abuse that takes place in an educational setting.

Wednesday, January 23, 2013

Mixed Reactions In Orthodox Jewish Community to 103-Year Sentence of Satmar For Sex Abuse

The Forward today reports on the reaction in the Orthodox Jewish Satmar community to the sentencing by a New York state trial judge of 54-year old Nechemya Weberman, a prominent member of the community, to 103 years in prison for sexually abusing a young Orthodox Jewish girl who was sent to the unlicensed therapist for counseling. Weber was found guilty on 59 counts related to the abuse that took place over a 3-year period beginning when the victim was 12. Some see the sentence as excessive and as likely to undercut efforts by Brooklyn's district attorney to get more cooperation from the Satmar community in investigations of sexual abuse complaints. (See prior related posting.) Others though say that the sentence shows victims that justice can be achieved through going to civil authorities.

Israel's Religious Parties Do Well In Election; But Coalition May Choose Between Them

In Israeli elections yesterday, religious parties emerged stronger than before. According to YNet News final tally, Shas and Habayit Hayehudi (Jewish Home) each won 11 seats, while United Torah Judaism won 7 seats in the 120-seat Knesset. In the outgoing Knesset, Shas had 11 seats, United Torah Judaism had 5 and Habayit Hayehudi had 3. In an interview last week reported in Haaretz, Habayit Hyehudi leader Naftali Bennett suggested that his party would like to be part of a Netanyahu coalition, and would be a stable, loyal and practical partner. Bennett says his party is centrist and will not be controlled by far-right rabbis. He explained:

We're not coming along to topple a right-wing government over every little thing. As long as no decision is made to hand over territory, we have no reason to leave the government."

Haaretz says that "Netanyahu will be forced to choose whether Habayit Hayehudi or the ultra-Orthodox parties will be members of his coalition."

Accommodating Store Manager's Sabbatarian Beliefs Would Impose Undue Hardship

In EEOC v. Rent-A-Center, Inc., (D DC, Jan. 18, 2013), the D.C. federal district court dismissed an EEOC lawsuit against a rent-to-own business finding that accommodating the religious beliefs of store manager Ferdinand Charles would impose an undue hardship on the company. Charles' religious beliefs prohibited him from working on Saturdays, the store's busiest day. The store is closed on Sundays and the company requires all managers to work on Saturdays. The court said that the EEOC was asking for the store to allow its most important employee to regularly be absent on the most important day of the week.

Kazakhstan Has Prosecuted 7 For Illegal Missionary Activity

According to a report yesterday by Forum 18, in Kazakhstan, seven people - four Jehovah's Witnesses, two Muslims and a Protestant – have been prosecuted for illegal missionary activity since August 2012. Three others expect to be prosecuted. The prosecutions under Article 375, Part 3 of the Code of Administrative Offences are punishable by fines of up to 100 Minimum Financial Indicators, an amount equal to several months average wages in Kazakhstan.