Court Says Catholic University's Challenge To Contraceptive Coverage Mandate Is Not Ripe For Decisiion

In Ave Maria University v. Sebelius, (MD FL, March 29, 2013), a Florida federal district court dismissed on ripeness grounds a challenge by a Catholic university to the Affordable Care Act contraceptive coverage mandate. The court said in part:

The crux of Defendants’ ripeness argument is that they are in the process of amending the challenged regulations to accommodate religious concerns and that they have represented that they will never enforce the regulations in their current form against Ave Maria or any similarly situated entity. Ave Maria concedes that it is eligible for a temporary enforcement safe harbor.... This Court therefore joins the overwhelming majority of courts to have addressed similar challenges by similarly situated plaintiffs in concluding that Ave Maria’s claims are not ripe for adjudication.

Ave Herald reports on the decision.

Virginia Law On Marriage Officiants Discriminates Against Sikhs

In In re Dhanoa, (VA Cir. Ct., March 29, 2013), a Virginia trial court held that while Sikh temples do not have clergy, and thus members cannot rely on Va. Code Sec. 20-23 to perform marriage ceremonies, Sikhs do qualify under Va. Code Sec. 20-26 as members of a religious society that does not have ordained ministers.  The court went on to hold that two of the conditions imposed by Sec. 20-26 are unconstitutional-- the requirement that only one person per "religious society" may be authorized to certify marriages and the requirement that the person chosen by the religious society post a $500 bond.  The court held that the these requirements discriminate against Sikhs on the basis of religion. The ACLU issued a press release reporting on the decision.

Canadian Court Says Police Religious Ruse Did Not Violate Murder Defendants' Religious Freedom

In Regina v. Welsh, (ON Ct. App., April 2, 2013) the Court of Appeal of the Canadian province of Ontario upheld that an elaborate ruse in which an undercover policeman posed as a practitioner of the Jamaican Obeah spiritual-mystical system to obtain incriminating statements from two of three co-defendants in a first-degree murder case. The court rejected arguments that the undercover operation violated defendants' religious freedom protected by Sec. 2 of the Canadian Charter of Rights and Freedoms. In a 91-page opinion, the court also rejected a number of other challenges to the undercover operation and the admission into evidence of the incriminating statements. The Toronto Star reports on the decision.

Ohio School Will Remove Jesus Portrait After Insurer Balks

As previously reported, earlier this year a suit was filed in an Ohio federal district court seeking to have the Jackson (OH) school district remove a portrait of Jesus that has hung in a school for 65 years and was recently moved to another school. The school justified the portrait saying it is the property of the student Hi-Y Club. According to ABC6 News, in a hearing yesterday on a temporary restraining order the school agreed to take down the portrait-- because the school board's insurance company says it will not cover the costs of the lawsuit. The school board now expects a lawsuit from the Hi-Y group that it has ordered to take down the portrait.

Woman Sues After Being Thrown Off Metrorail For Singing Spirituals

CBS4 Miami reports on a lawsuit filed in Miami, Florida on Monday against the security company that furnishes guards for Miami's Metrorail and a guard who forced an 82-year old woman from a train for singing spiritual hymns.  Miami-Dade Transit says its rules prohibit anyone from singing, dancing or playing a musical instrument on the train without a permit. The lawsuit says that Emma Anderson was on the train to get some fresh air and find comfort in her faith following the recent death of her brother. She was bruised attempting to reclaim her small rolling suitcase from the guard who grabbed it when he told her to get off the train. The suit alleges assault, battery and negligence. Anderson's attorney says she was targeted because of her race and religion.

Requiring Religious Non-Profit To Pay Rent For Parking Lot Does Not Violate RLUIPA

In Parish of Jefferson v. Daughters of St. Paul Inc., 2013 La. App. LEXIS 599 (LA App., March 27, 2013), a Louisiana appeals court rejected a RLUIPA land use claim brought by Pauline Books & Media, a non-profit corporation of religious women who share their beliefs through media. A Jefferson Parish ordinance requires the corporation to pay rent to the Parish government for use of Parish property located in front of Pauline Books for parking by Pauline Books' customers.The court held that the required lease payments do not impose a substantial burden on Pauline Books religious exercise.

Palestinian President Recognizes Jordanian King's Role As Protector Of Jerusalem Muslim Holy Sites

According to the Times of Israel, last Sunday Jordan's King Abdullah II and Palestinian President Mahmoud Abbas signed an agreement (full text) reaffirming the role of the Jordanian king as Custodian of the Muslim Holy Sites in Jerusalem, including Al-Aqsa Mosque and the Dome of the Rock. The agreement provides that the Jordanian king has the right "to represent the interests of the Holy Sites in relevant international forums and competent international organizations."

Recent Artcles of Interest

From SSRN:

• SpearIt, Religion as Rehabilitation? Reflections on Islamin the Correctional Setting, (Whittier Law Review, Vol. 34, 2012, Forthcoming).
• Kristen Kyle-Castelli, Standing and the EstablishmentClause in the Wake of Arizona Christian School Tuition Organization v. Winn:Who is the Proper Plaintiff to Take a Stand in Tax Credit School Cases? , (82 Miss. L.J. Supra 239 (2013)).
• Davina Cooper and Didi Herman, Up Against the PropertyLogic of Equality Law: Conservative Christian Accommodation Claims and GayRights, (Feminist Legal Studies, Vol. 21, No. 1, 2013).
• Paola Bernardini, Religious Liberty: A Common Challenge forCatholic-Muslim Dialogue, (Ave Maria Law Review, Vol. 11, No. 1, p. 31, 2012).
• Stephen L. Mikochik, Teaching About Religion in the PublicSchools, Ave Maria Law Review, Vol. 11, No. 1, p. 149, Fall 2012.
• Damian P, Fedoryka, The Foundation of Rights in Popes JohnPaul II and Benedict XVI from the Perspective of the Gift , Ave Maria Law Review, Vol. 11, No. 1, p. 65, 2012).
• Russell Powell, Shari'a Politics: Islamic Law and Societyin the Modern World (Book Review), (28 Journal of Law and Religion 287 (2012)).
• T. Ward Frampton, 'Some Savage Tribe': Race, LegalViolence, and the Mormon War of 1838, (Journal of Mormon History, Forthcoming).
• Frederick Mark Gedicks, Dignity, History, and Religious-Group Rights, (San Diego Law Review, Vol. 50, 2013).
• Frederick Mark Gedicks, True Lies: Canossa as Myth, (San Diego Law Review, Forthcoming).
• Holly Fernandez Lynch, Religious Liberty, Conscience, andthe Affordable Care Act, (ETHICAL PERSPECTIVES, Vol. 20, No. (1) pp. 118-131 (2013)).

From SmartCILP:

• Fracois Dessemontet, The Application of Soft Law, Halakha and Sharia by International Arbitral Tribunals, [Abstract],23 American Review of International Arbitration 545-565 (2012).
• Kristin A. Olbertson, Religion and Rights in Nineteenth-Century American Law: Reflections on the Work of Elizabeth B. Clark, 53 American Journal of Legal History 121-130 (2013).
• Sands, Kathleen. Territory, wilderness, property, and reservation: land and religion in Native American Supreme Court cases. 36 Am. Indian L. Rev. 253-320 (2011-2012).
• Journal of Law and Religion, Vol. 28, No. 1 (2012- 2013) has recently been published.

Muslim Group Prevails On Free Exercise and RLUIPA Substantial Burden Challenges To Zoning Denial

In a detailed 70-page opinion in Irshad Learning Center v. County of DuPage, (ND IL, March 29, 2013), an Illinois federal district court held that DuPage County Illinois violated the substantial burden provisions of RLUIPA and the Illinois Religious Freedom Act Restoration Act, as well as the free exercise provisions of the U.S. and Illinois constitutions in denying a Muslim religious and educational group a conditional use permit to use certain property for religious and educational purposes. However the court rejected plaintiff's RLUIPA equal terms and non-discrimination claims, as well as its constitutional equal protection claim. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Bolds v. Cavazos, 2013 U.S. Dist. LEXIS 40393 (ED CA, March 20, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that the confiscation of his television set infringed his free exercise rights by preventing him from receiving religious programming.

In McClendon v. Caruso, 2013 U.S. Dist. LEXIS 40884 (WD MI, March 25, 2013), a Michigan federal district court dismissed an inmate's complaint that his free exercise rights were infringed when authorities treated his religious fast as if it was a hunger strike and required him to undergo to a check of his vital signs.

In Washington v. Caldwell, 2013 U.S. Dist. LEXIS 40764 (ED MI, March 22, 2013), a Michigan federal district court, adopting a magistrate's recommendation (2013 U.S. Dist. LEXIS 43707, Jan. 31, 2013), dismissed a complaint by a Protestant inmate that the prison chaplain refused to put him on the list for the Muslim fast of Ramadan.

In McKissick v. Owens, 2013 U.S. Dist. LEXIS 41703 (SD GA, March 25, 2013), a Georgia federal district court agreed with a magistrate's recommendations and dismissed an inmate's complaint that his free exercise rights were violated when non-vegan trays were used to serve vegan meals. UPDATE: The magistrate's decision is at 2013 U.S. Dist. LEXIS 46165, Feb. 21, 2013.

In Handy v. Cummings, 2013 U.S. Dist. LEXIS 41282 (D CO, March 25, 2013), a Colorado federal district court, rejecting parts of a magistrate's recommendations (2012 U.S. Dist. LEXIS 187115, Nov. 27, 2012), held that genuine issues of fact remain in connection with a Muslim inmate's complaint that his Islamic prayer book and prayer schedule were confiscated and then lost.

In Bloom v. Jennings, 2013 U.S. Dist. LEXIS 41970 (WD VA, March 25, 2013), a Virginia federal district court dismissed an inmate's complaint that he was prohibited from possessing his rosary because it violated restrictions on altered property and from possessing his cross necklace because it violates restrictions on the size of medallions.

In Miller v. Bouchard, 2013 U.S. Dist. LEXIS 41849 (ND NY, March 26, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 41853, March 4, 2013) and dismissed a Muslim inmate's complaint that he was prohibited from praying or wearing his Kufi while outside of his cell.

In Todd v. California Department of Corrections and Rehabilitation, 2013 U.S. Dist. LEXIS 43008 (ED CA, March 26, 2013), California magistrate judge recommended dismissing an inmate's complaint regarding his religious diet and confiscation of Creativity material. The court concluded that Creativity is not a religion, but merely a secular belief system based on an isolated teaching: the promotion of the White Race.

In Mootry v. Flores, 2013 U.S. Dist. LEXIS 42942 (ED CA, March 25, 2013), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that he was not allowed to attend Jumu'ah services in the absence of a Muslim chaplain or a volunteer to supervise inmate ministers, and prison authorities failed to obtain such a person to supervise services.

In Holman v. Hogue, 2013 U.S. Dist. LEXIS 32849 (WD PA, March 8, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42770, Feb. 15, 2013) and dismissed a Muslim inmate's complaint that the county jail in which he was incarcerated does not provide an Imam for religious services.

In Griffin v. Superintendent, 2013 U.S. Dist. LEXIS 37069 (ND NY, March 18, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42064, Jan. 31, 2013) and dismissed a habeas corpus petition brought by an inmate who was denied parole after refusing to take the  Sex Offender Counseling and Treatment Program because assuming responsibility for the offense in the program would require him to lie in violation of his Jehovah's Witness religious beliefs.

In Mobley v. Coleman, 2013 Pa. Commw. LEXIS 78 (PA Commwlth. Ct., March 27, 2013), the Pennsylvania Commonwealth Court ruled that a Nation of Islam inmate can move ahead with his claims that the lack of separate Nation of Islam services violates his federal and state free exercise rights. But it rejected his claims that his rights under RLUIPA and the Pennsylvania Religious Freedom Protection Act were also violated.

White House Easter Weekend Statements and Releases

President Obama yesterday used his weekly address (full text) to extend Easter and Passover greetings. He said in part:

As Christians, my family and I remember the incredible sacrifice Jesus made for each and every one of us – how He took on the sins of the world and extended the gift of salvation. And we recommit ourselves to following His example here on Earth. To loving our Lord and Savior. To loving our neighbors. And to seeing in everyone, especially “the least of these,” as a child of God. 

Of course, those values are at the heart not just of the Christian faith; but of all faiths. From Judaism to Islam; Hinduism to Sikhism; there echoes a powerful call to serve our brothers and sisters. To keep in our hearts a deep and abiding compassion for all. And to treat others as we wish to be treated ourselves.

The previous day-- Good Friday-- the White House also issued a Statement by the President on Easter Weekend, as well as the Complete 2013 Easter Egg Roll Program and Talent Line-up.

Court Rejects Challenge To World Trade Center Cross In 9-11 Museum

In American Atheists, Inc. v. Port Authority of NY and NJ, (SD NY, March 28, 2013), a New York federal district court rejected constitutional challenges to the inclusion of the World Trade Center Cross—two beams that survived the collapse of the World Trade Center—as part of the  National September 11 Museum in lower Manhattan.  While finding that the decision by the World Trade Center Foundation to include the 17-foot tall cross as part of the displays amounted to state action, the court nevertheless held that the decision does not violate the federal Establishment Clause or Equal Protection Clause, nor does it violate parallel provisions of the New York or New Jersey Constitutions or state anti-discrimination laws. In rejecting the Establishment Clause challenge, the court said in part:

Because a reasonable observer would be aware of the history and context of the cross and the Museum-- especially given that the cross will be housed in the “Finding Meaning at Ground Zero” section, accompanied by placards explaining its meaning and the reason for its inclusion, and surrounded by secular artifacts--  no reasonable observer would view the artifact as endorsing Christianity.

In a press release following the decision, American Atheists said: "We will appeal. We’re fighting it. This is not dead. This is a place where religion destroyed American lives."  CNN reports on the decision.

Appeals Court Remands Church Property Dispute for Determination of Whether Plaintiffs Were Church Members

God's Hope Builders, Inc. v. Mount Zion Baptist Church of Oxford, Georgia,(GA App., March 28, 2013), is a case involving a property dispute between two factions in a Baptist church, one of which wanted the church to retain its Southern Baptist affiliation and feared that under its new pastor it was becoming an Independent Baptist church. The church's sole deacon/director transferred the church's property and other assets to God’s Hope Builders, a non-profit corporation affiliated with the Southern Baptist Convention. The church's current pastor and 36 purported members sued to invalidate the transfer. The trial court held that plaintiffs represented a majority of the church and thus had standing to bring the suit.  It held further that the property and asset transfer was unlawful. The appeals court concluded however that the "the record was insufficient to allow the trial court to definitively determine this crucial threshold issue" of whether plaintiffs represented a majority of church membership.

The appeals court held that in deciding whether plaintiffs were church members, the trial court had misconstrued the provision in the church's bylaws providing:

Any person publicly confessing personal faith in the Lord Jesus Christ, giving evidence of a regenerate heart and adapting [sic] the views of faith and practice held by the church, after baptism shall be admitted into the membership of the church.

The trial court counted 16 people as members even though there was no evidence that they had been baptized.  The trial court also failed to indicate how it determined the total church membership. The appeals court remanded the case instructing the trial court "to definitively determine whether plaintiffs are members of the church pursuant to the church’s bylaws—to the extent that it can do so without engaging in a subjective analysis of ecclesiastical matters—and whether plaintiffs constitute a majority based on the church’s total members so as to have standing to bring suit."

Employer Must Accommodate Sincere Religious Belief Even If Not Part of Formal Religion's Doctrines

In Telfair v. Federal Express Corp., (SD FL, March 28, 2013), a Florida federal district court held that two Jehovah's Witness employees could establish a prima facie case under Title VII of the 1964 Civil Rights Act of failure to accommodate their sincerely held religious beliefs even though their beliefs were not part of formal Jehovah's Witness doctrine.  It is sufficient that plaintiffs subjectively believed that the practice of field ministry and engagement in Bible study on Saturdays was a necessary expression of their religion. However, the court granted defendant's motion for summary judgment, finding that Federal Express had offered plaintiffs reasonable accommodation of their need not to work on Saturdays.

10th Circuit Grants Hobby Lobby En Banc Initial Hearing In Contraceptive Coverage Mandate Challenge

The U.S. 10th Circuit Court of Appeals today issued an Order (full text) in Hobby Lobby Stores Inc. v. Sebelius, (10th Cir., March 29, 2013), granting an unusual initial en banc hearing, rather than an intitial hearing before a 3-judge panel, in the high-profile case. The case involves the appeal of an Oklahoma federal district court's decision upholding application of the Affordable Care Act contraceptive coverage mandate against two related small businesses and their Christian owners. (See prior posting.) The 10th Circuit aso indicated that it would expedite oral argument in the case.  The 10th Circuit previously refused to grant an injunction pending resolution of the appeal. (See prior posting.) Becket Fund issued a press release announcing the court's action.

11th Circuit Upholds City's Prayer Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (11th Cir., March 26, 2013), the U.S. 11th Circuit Court of Appeals upheld against an Establishment Clause challenge the invocation policy formally adopted by Lakeland, Florida City Commission's Resolution 4848 shortly after this lawsuit was filed challenging an earlier informal policy.  The formal policy calls for inviting clergy from all local congregations to volunteer to deliver an invocation prior to the formal opening of city council meetings, and choosing volunteers largely on a first-come, first-serve basis. The court said in part:

[W]e conclude that AOF has failed to demonstrate that the adoption of Resolution 4848 resulted in proselytizing or advancing the Christian religion over all others solely because the speakers who were selected included sectarian references in their prayers. We also conclude that we lack jurisdiction to decide AOF’s challenge to the Lakeland City Commission’s pre-March 2010 speaker selection practice ... because that issue is moot...

The court's conclusion is similar to that of the 9th Circuit in a case handed down the same day. (See prior posting.)

Some Protest German Ban on Good Friday Dancing

Today's Wall Street Journal reports on protests in Germany over "Tanzverbot"-- the ban in each of Germany's 16 states on organized dancing at clubs and discos on Good Friday.  Some state laws also ban dancing on several other religious days throughout the year, including Christmas Eve. In Frankfurt yesterday, some two dozen protesters rallied around the slogan: "I'll let you pray-- you let me dance." However supporters of the ban say it is a way of showing respect for Germany's Christian tradition.

Pennsylvania Bill Would Limit Pseudonyms In Church-State Cases

In Pennsylvania earlier this month, state Representative Tim Krieger, concerned about lawsuits challenging Ten Commandment displays in two Pennsylvania school districts, introduced a bill to prevent litigants from proceeding anonymously in most litigation challenging the public display of religious symbols.  His HB No. 922 provides:

Notwithstanding any other provision of law to the contrary, in a suit to suppress, remove or otherwise inhibit the display or use of religious symbols in public locations, including public schools, the court shall not permit a party to participate by pseudonym and shall not seal the records in the case absent a showing, by clear and convincing evidence, that a party would otherwise suffer serious physical harm.

Seeking co-sponsors, Krieger describes the bill as "Guaranteeing Transparency in Litigation Affecting Religious Liberties."  The Pittsburgh Tribune-Review reports on the bill's introduction.

Court Says City's Restrictions On Feeding Homeless Violate Religious Freedom

In Big Hart Ministries Assoc., Inc. v. City of Dallas, (ND TX, March 25, 2013), a Texas federal district court held that under the Texas Religious Freedom Restoration Act the criteria in Dallas' Food Establishment Ordinance that must be met by organizations feeding the homeless violate the religious exercise rights of two organizations that feed and minister to the unsheltered homeless population in Dallas. The court concluded that the city had not shown a compelling interest in restricting feeding of the homeless by religious institutions, despite the city's argument that the organizations are thwarting the city's attempt to get the homeless off the streets and into clinics or shelters. Dallas News reports on the decision.

Some of Church Officer's Liability To Synod Not Dischargeable In Bankruptcy

Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Gotwald, (Bkrptcy. ED PA, March 26, 2013), is an opinion in an adversary proceeding filed by the Lutheran Synod attempting to prevent a bankruptcy court from discharging a congregational officer's asserted liability to the Synod growing out of actions surrounding the split off of a Philadelphia congregation from the Synod. After being placed in involuntary synodical administration, Philadelphia's Evangelical Lutheran Church of the Redeemer incorporated a new church entity, transferred church property to it, and then took out a $275,000 loan on the transferred property. Judith Gotwald was an officer of Redeemer and was one of two individuals who controlled the bank account in which the proceeds of the $275,000 loan were deposited.

Redeemer and the Synod both filed suit in state court in Pennsylvania. The Synod succeeded in obtaining an injunction ordering Gotwald to deliver to the Synod Trustees all keys to the Redeemer buildings, and all of Redeemer’s books, records and financial assets. Gotwald only delivered church records and did not deliver control of the bank account.

Meanwhile Gotwald filed a Chapter 13 bankruptcy petition. In this decision, the bankruptcy court concluded that any debt Gotwald may owe arising out of her participation in the mortgage loan on Redeemer property is dischargeable in bankruptcy. However, because Gotwald knowingly failed to comply with the state court injunction (and did not established a defense based on the advice of counsel), damages from her actions in concealing the bank account and dissipating the loan proceeds are not dischargeable.  Liability for those actions constitute a debt to the Synod for "willful and malicious injury" that is nondischargeable under 11 U.S.C. §523(a)(6).