Supreme Court Denies Cert. In Establishment Clause Challenge To KY Homeland Security Statutes

The U.S. Supreme Court today denied review in American Atheists, Inc. v. Kentucky Office of Homeland Security, (Docket No. 12-613, certiorari denied 3/18/2013). (Order List.) In the case, a Kentucky state appeals court, in a 2-1 decision, rejected an Establishment Clause challenge to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God...." Another statute called on the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God. (See prior posting.) The Kentucky Supreme Court denied review.

Bibliography of 2012 Jewish Law Publications Released

The Association of American Law Schools Section on Jewish Law last week published its March 2013 Newsletter which includes an 11-page bibliography of books and articles on Jewish Law published last year. The bibliography also includes a list of specialty journals.

Recent Articles of Interest

From SSRN:

• Kenneth L Marcus, Is Anti-Semitism Unique?: Review of Clemens Heni, Antisemitism: A Specific Phenomenon (Berlin: Edition Critic, 2013) (2013). Brandeis Brief (March 2013).
• Steven H. Resnicoff, Family Planning and Government Regulation – Jewish Law Perspective, (DePaul Journal of Health Care Law, Forthcoming).
• Alan Hurst, Hosanna-Tabor and the Exaggerated Decline of Separationism, (March 7, 2013).
• Marc O. DeGirolami, Book Review, Stephen v. Monsma, Pluralism and Freedom: Faith-Based Organizations in a Democratic Society, (Journal of Church and State (Forthcoming)).
• Russell Powell, Evolving Views of Islamic Law in Turkey, (March 14, 2013).
• Anna Jane Kloeden High, Government Beyond Law: Exploring Charity Regulation and Spaces of Order in China, (December 1, 2011).
• Andy G. Olree, 'Pride Ignorance and Knavery': James Madison's Formative Experiences with Religious Establishments, (Harvard Journal of Law and Public Policy, Vol. 36, No. 1, 2013). 

From SmartCILP and elsewhere:

• Victor E. Schwartz and Christopher E. Appel, Robert S. Marx Lecture. The Church Autonomy Doctrine: Where Tort Law Should Step Aside, (80 University of Cincinnati Law Review 431-499 (2011)).
• CambridgeBlog, Virtual Roundtable: Same-Sex Marriage, (March 15, 2013).

[Updated]

Recent Prisoner Free Exercise Cases

In Blount v. Phipps, 2013 U.S. Dist. LEXIS 31760 (WD VA, March 6, 2013), a Virginia federal district court dismissed complaints by a Muslim inmate that correctional officers delayed in returning two confiscated religious books, and that officials forced him to violate his Ramadan fast by refusing to alter the pill pass schedule.

In Bayadi v. Mathena, 2013 U.S. Dist. LEXIS 31757 (WD VA, March 5, 2013), a Virginia federal district court permitted a Sunni Muslim inmate to proceed, at least for now, with his RLUIPA claim for injunctive relief in which he complains officers refused to accommodate his need to grow a beard for religious reasons. The court gave defendants 30 days to file a second motion for summary judgment dealing with compelling interests and least restrictive means.

In Scott v. Erdogan, 2013 U.S. Dist. LEXIS 31703 (MD PA, March 4, 2013), a Pennsylvania federal district court adopted only in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 30423, Jan. 30, 2013) and allowed a Muslim inmate to proceed with his complaint against two defendants. Plaintiff alleged that the prison system only provided services and instruction in Wahabi Islam, and that this infringed his right to practice orthodox Sunni Islam. Plaintiff also complained about certain practices during Ramadan.

In Alvarez v. Cate, 2013 U.S. Dist. LEXIS 32577 (ND CA, March 8, 2013), a California federal district court refused to grant summary judgment to defendants on RLUIPA and free exercise claims by an inmate whose drawings of various Aztec symbols were confiscated when he attempted to mail them to his family. Prison authorities claimed the drawings promote gang activity. The case was referred to the pro se prisoner mediation program.

In Cejas v. Myers, 2013 U.S. Dist. LEXIS 33393 (ED CA, March 11, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that Buddhist inmates are being denied access to the chapel for services without a chaplain or custody officer present.

In Davis v. Castelloe, 2013 U.S. Dist. LEXIS 32963 (ED NC, March 11, 2013), a North Carolina federal district court dismissed an inmate's complaint that the prison chaplain denied Catholic inmates time equal to that given other religious groups.

In Rahman v. Shearin, 2013 U.S. Dist. LEXIS 33853 (D MD, March 12, 2013), a Maryland federal district court dismissed an inmate's complaint that he was denied the right to participate in Sunni Muslim prayer services because prison officials wrongly had him listed as a member of Nation of Islam.

In Davis v. Flores, 2013 U.S. Dist. LEXIS 34215 (ED CA, March 11, 2013), a California federal district court dismissed a Muslim inmate's complaint that Friday Jumu'ah services for Level 4 inmates were suspended for several months after the prior Muslim chaplain was fired, instead of allowing unsupervised services.

In Wisniewski v. Mueller, 2013 U.S. Dist. LEXIS 22697 (D SC, Feb. 20, 2013), a South Carolina federal district court dismissed on ripeness grounds because plaintiff had been transferred to a different prison a complaint that prison policies barring magazines and paper materials in cells deprived him of the ability to receive Christian materials to study his faith. The magistrate's recommendation is at 2013 U.S. Dist. LEXIS 33484, Jan. 2, 2013.

In Haight v. Thompson, 2013 U.S. Dist. LEXIS 36062 (WD KY, March 15, 2013), a Kentucky federal district court on various grounds dismissed compaints by death row inmates that they were denied visits from clergy of their choice, were denied access to a sweat lodge to practice Native American religious ceremonies and were denied certain foods for use in a Native American powwow to be held at the prison.

Court Says Ban On Picketing Near Homes Survives Constitutional Challenge

In Bell v. City of Winter Park, (MD FL, March 6, 2013), a Florida federal district court upheld the constitutionality of an anti-picketing ordinance against free speech and free exercise claims. The law which bars picketing or protests within 50 feet of any dwelling was enacted after the president of Orlando's Planned Parenthood complained about shouting anti-abortion protesters carrying graphic signs in front of her house. The court held that this is a content-neutral time, place and manner regulation that does not violate free speech protections, and is a neutral generally-applicable law that survives a free exercise challenge.

Obama Names Delegation To Attend Pope's Inauguration Mass

Yesterday President Obama announced the designation of a Presidential Delegation to attend the Inauguration Mass of newly-elected Pope Francis in the Vatican on Tuesday. Vice-President Joe Biden will lead the delegation. The other members are New Mexico Governor Susana Martinez, House Democratic Leader Nancy Peolsi, and Georgetown University President Dr. John J. DeGioia.

Now Stymied Lawsuit In Russia Seeks To Invalidate Sale of Alaska To Protect Its Orthodox Christians From Same-Sex Marriage

RIA Novosti reports today on an attempt in Russia by an obscure ultraconservative Russian Orthodox religious group--  Pchyolki ("Bees)-- to sue the United States to invalidate Russia's sale of Alaska to the U.S. in 1867. Pchyolki says that the suit was motivated by President Barack Obama's support for legalizing same-sex marriage. Pchyolki says this threatens freedom of religion for Alaska’s Orthodox Christians, who "would never accept sin for normal behavior." The lawsuit cites technical violations of the terms of the 1867 treaty. Art. VI of the treaty called for the U.S. to pay Russia $7.2 million "in gold."  The complaint filed in a Moscow arbitrage court says payment was made instead by check.

The suit was originally filed in Moscow in January, and Pchyolki had until this week to file certain additional papers and notify the U.S. government of the lawsuit. It failed to do so, and the court has therefore not processed the lawsuit.

School District Moves Jesus Portrait To Another School, Presumably Strengthening Their Defense

As previously reported, last month parents and a student who attends Jackson, Ohio Middle School filed a federal court lawsuit against the school district seeking removal of a portrait of Jesus that has been displayed for 65 years on an entrance wall in the school. Shortly after the suit was filed, the school board voted unanimously to keep the portrait up, saying that it is protecting student free speech rights.  It claimed that the portrait belongs to, and was put up, but the Hi-Y club whose name is on the portrait frame. The board said the portrait is part of a "limited public forum" in which other student organizations can also hang portraits related to their purposes in the schools.(AP, 2/15/13).

The Columbus Dispatch reports today on a new development that presumably is intended to strengthen the school's case.  This week, at the request of the Hi-Y Club, the portrait was moved from the middle school building to a high school building.  The Hi-Y is a high school club, and when the portrait was put up in 1947, the middle-school building housed the high school. When the high school moved to a new building, the portrait was never moved. Now the Hi-Y students say they want the portrait in the building where the club currently meets and where its members are students. School Superintendent Phil Howard said: "We have to respect the rights of the club. Failure to do so might ... turn... the portrait into government speech."

In Syrian Rebel Areas, Islamists Are Setting Up Religious Courts

NPR reported yesterday that in Syria, as rebels have taken control of the northern part of the country, Islamists are setting up religious courts to dispense justice. However in cities like Mayadeen and Aleppo, moderate Muslims are objecting.

Court Refuses To Enforce Settlement In Good News Club Lawsuit

After the 8th Circuit last year held that a preliminary injunction should issue to permit Child Evangelism Fellowship's Good News Clubs to participate in a Minneapolis elementary school's after-school programming (see prior posting), the parties decided to settle the lawsuit. They filed a stipulation with the district court that provided for the school district to reinstate the Good News Clubs and pay plaintiffs' attorneys fees. It also sought the issuance of a permanent injunction and asked the court to retain jurisdiction for purposes of enforcing the injunction. In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (D MN, March 12, 2013), the district court, in an unusual move, held that

the parties have not demonstrated that permanent injunctive relief is necessary or warranted.... Instead, because the District has voluntarily agreed to cease the challenged conduct, the Court finds that there is no threat of future irreparable harm to CEF and therefore an injunction should not issue.... Because the Court will decline to enter a permanent injunction and exercise continuing jurisdiction over this matter, the Court’s approval of the parties’ Stipulation is no longer necessary, and the document is now simply a private settlement.

Utah High Court Rules That Reformed FLDS Trust Is Different Legal Client Than Original UEP Trust

In a 3-2 decision in Snow Christensen & Martineau v. Lindberg, (UT Sup. Ct., March 12, 2013), the Utah Supreme Court ruled this week on yet another of the complex legal issues flowing from Utah courts' attempt to reform the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. At issue was whether the law firm that once represented the original trust could now represent clients in challenges against the reformed trust, and whether the law firm had to turn privileged records over to the special fiduciary. The Supreme Court held that the reformation of the trust so changed it that it is no longer the same client as the original trust:

In reforming the UEP Trust, the district court stripped the Trust of its essential religious purpose and required that the Trust be administered according to secular principles.

Therefore, the Supreme Court majority held that the trial court erred in disqualifying the firm from representing FLDS members in their challenge to actions of the special fiduciary and in ordering the firm to disgorge privileged records to the special fiduciary. Deseret News reports on the decision.

Pizza Founder Wins Preliminary Injunction Against Contraceptive Coverage Mandate

A Michigan federal district court yesterday issued a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by Domino's Pizza founder Tom Monaghan and his property management company Domino farms Corp. In Monaghan v. Sebelius, (ED MI, March 14, 2013), the court held that plaintiffs are likely to succeed on their Religious Freedom Restoration Act challenge, writing:

the Court finds that DF is merely the instrument through and by which Monaghan expresses his religious beliefs. Accordingly, DF may assert an RFRA claim on Monaghan’s behalf. The Court takes no position as to whether DF has an independent right to freely exercise religion....

The Court’s task is not to question whether providing coverage is against Monaghan’s religious beliefs; that much is largely taken on Monaghan’s word.... Rather, the Court’s task is to determine whether this burden on Monaghan’s religious exercise is substantial. The Court finds that it is. Monaghan must violate his beliefs and modify his behavior or else pay substantial fines.

The court went on to hold that the government had not shown it has a compelling interest to enforce the mandate against these particular plaintiffs, given the numerous exemptions that lead to 190 million people being outside the mandate's coverage. Thomas More Law Center issued a press release on the decision.

Church's Zoning Challenge Dismissed On Ripeness Grounds

In St. Vincent De Paul Place v. City of Norwich, (D CT, March 13, 2013), a Connecticut federal district court dismissed on ripeness grounds a suit challenging the refusal of the city to issue a church a permit to operate a soup kitchen from a former religious school building. Plaintiffs should have applied for a variance before filing suit.

Suit Challenges "In God We Trust" On Coins and Currencuy

The Freedom From Religion Foundation, New York City Atheists, and 18 individual plaintiffs filed suit early last month in New York federal district court challenging on Establishment Clause, as well as other constitutional and statutory grounds, the use of the phrase "In God We Trust" on the nation's coins and currency.  The 78-page complaint (full text) in Newdow v. Congress of the United States, (SD NY, filed 2/1/2013), is described by an FFRF press release issued yesterday as "a tour de force of historical research, [which] unequivocally shows that there was a purely religious purpose and intent behind putting God on our coinage."  Honorary FFRF board member Mike Newdow is acting as legal counsel in the suit. First-named plaintiff, Rosalyn Newdow is apparently Michael Newdows mother. (Background). In 2006, Michael Newdow as plaintiff lost a similar challenge in a California federal district court suit. (See prior posting.)

Sikh Man Says California's Assault Weapons Ban Violates His Religious Beliefs

A lawsuit filed in a California federal district court this week by a Yuba City man alleges that California's ban on assault weapons, as well as its ban on carrying loaded firearms in one's vehicle and certain other places, violates the free exercise rights of plaintiff, a Sikh.  The complaint (full text) in Khalsa v. State of California, (ED CA, filed 3/12/2013) alleges:

Mainstream Sikh doctrine since the time of Guru Gobind Singh requires that Sikhs be at all times FULLY prepared to defend themselves and others against injustice. Some splinter groups attempt this by wearing symbolic miniature daggers in their turbans, to comply with this requirement. But mainstream Sikhs believe that the requirement is a literal and true moral duty.

Citing attacks and threats on Sikhs since 9/11, plaintiff also claims that the Second Amendment protects his right to be reasonably armed  in places and at times in which he and other Sikhs are likely to be attacked-- in his home, on the streets and in his temple. News10 reports on the lawsuit.

Another Small Business Owner Challenges Contraceptive Coverage Mandate, But With Special Symbolism

Thomas More Law Center yesterday announced that another lawsuit by a small business and its owner challenging the contraceptive coverage mandate of the Affordable Care Act was filed this week.  This time the challengers were Southern Baptist plaintiff Thomas Beckwith and the Florida-based Beckwith Electric Company, Inc. The individual plaintiff is a 93% stockholder and CEO of the company.  The complaint (full text) in Beckwith Electric Company, Inc. v. Sebelius, (MD FL, filed 3/12/2013), asserts legal challenges similar to many of the other suits that have been filed in recent months.  This suit however has two unique symbolic elements to it. First, according to Baptist Press, this is the 50th lawsuit filed challenging the mandate. Second, the suit alleges that Thomas Beckwith is "a descendant of the Beckwiths, who in 1626 endured the hardships of the lengthy and storm-ridden voyage to America on a 40-foot boat called the "Sparrow Hawk"; the Beckwiths landed on these shores to escape religious persecution in England."

ACLU Challenges Christian Prayers At County Commission Meetings

The ACLU of North Carolina announced yesterday that it has filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer. The federal court complaint (full text) in Lund v. Rowan County, North Carolina, (MD NC, filed 3/12/2013), alleges that 139 of the past 143 Board meetings were opened with prayers that concluded with references to Jesus or other Christian concepts. The suit argues that this violates the Establishment Clause as well as provisions of the North Carolina Constitution.  Plaintiffs also filed a motion for preliminary injunction and a memorandum in support of the motion.

Court Upholds Parent Church Body's Closing of Church and Takeover of Assets

In Metropolitan District of the Christian and Missionary Alliance v. Community Church of Paramus of the Christian and Missionary Alliance, Inc., (NJ App., March 8, 2013), a New Jersey appeals court rejected a challenge to the decision by the Christian and Missionary Alliance to close the Community Church and acquire title to its assets pursuant to a reversionary clause in the church's constitution. The decision to close the church came after its attendance dwindled and it was discovered that $68,000 in assets had been embezzled. Affirming the trial court's decision upholding the action of the parent body, the appeals court said:

We cannot parse the ecclesiastical constitution and rules of the CMA and the Metropolitan District and then apply neutral principles to determine whether the denomination's designated authority, the district executive committee, properly interpreted and applied such constitution and rules in this case. Matters of church governance, predicated upon its principles and hierarchical structure, should not be the subject of secular judicial resolution. "In disputes involving a church governed by a hierarchical structure, courts should defer to the result reached by the highest church authority to have considered the religious question at issue."

Argentine Cardinal Jorge Mario Bergoglio Named Pope Francis I

As reported by the Washington Post and AP, a new Pope has been elected today-- Argentine Cardinal Jorge Mario Bergoglio, who has chosen the name Pope Francis I. The Pope, a Jesuit, is the first Pope ever from the Americas.

UPDATE: President Obama on Wednesday afternoon issued a statement (full text) offering warmest wishes to the new Pope on behalf of the American people. The statement said in part:

Just as I appreciated our work with Pope Benedict XVI, I look forward to working with His Holiness to advance peace, security and dignity for our fellow human beings, regardless of their faith.  

Melissa Rogers To Be Appointed To Head President's Faith-Based Office

Melissa Rogers will be appointed to head the White House Office of Faith-Based and Neighborhood Partnerships, according to a press release today from the Baptist Joint Committee for Religious Liberty. Rogers is Director, of the Wake Forest University Center for Religion and Public Affairs and is a Nonresident Senior Fellow at the Brookings Institution.  She previously served as executive director of the Pew Forum on Religion and Public Life, and as general counsel of the Baptist Joint Committee for Religious Liberty.  Rogers served as chair of the President’s Advisory Council on Faith-based and Neighborhood Partnerships in 2009-10 and was part of a task force that that in March 2010 issued a report on Reform of the Office of Faith-Based and Neighborhood Partnerships that dealt with a number of the difficult church-state issues involved in government funding of faith-based social services. Rogers will succeed Joshua DuBois who resigned as director of the faith-based office last month. (See prior posting.)