Yeshiva's Zoning Challenge Dismissed On Ripeness Grounds

In Sheri Torah v. South Blooming Grove & Planning Board of the Village of South Blooming Grove, 2013 U.S. Dist. LEXIS 49797 (SD NY, March 28, 2013), a New York federal district court dismissed a suit by a Hasidic Jewish organization claiming that the village's failure to act on an application for a special permit to operate a yeshiva on plaintiff's leased property violates RLUIPA as well as various federal and state constitutional protections. The court concluded that the dispute is not ripe for review because "plaintiff has not plead that it has obtained a final decision from the Village on its application, and it has not shown that the narrow futility exception to this rule applies."

Philadelphia Archdiocese Finds 3 Accused Priests Unsuitable For Ministry

Yesterday the Catholic Archdiocese of Philadelphia announced that Father Joseph J. Gallagher and Father Mark S. Gaspar have been found unsuitable for ministry. The two were among the 21 priests placed on administrative leave after the release of a grand jury report in February 2011 on the handling of sex abuse complaints. The Archdiocese also ruled that a third priest, retired Monsignor Richard T. Powers, who was not listed in the 2011 grand jury report is unsuitable for ministry. The action was based on a substantiated allegation of sexual abuse of a minor that occurred 40 years ago outside the Archdiocese of Philadelphia. All the priests may appeal their removal to the Vatican. ABC News reports on the decisions which were made by Archbishop Charles Chaput.

Recent Articles of Interest

From SSRN:

• Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, (Yale Law Journal, Forthcoming).
• Jay Wexler, Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, with Reference to Patton Oswalt's Character 'Paul from Staten Island' in the Film Big Fan, (Boston University Law Review, 2013).
• Andrew J. Hull, Complete or Partial Accommodation: An Analysis of the Federal Circuit Split Over the Duty of the Employer to Reasonably Accommodate the Religious Beliefs of the Employee, (Regent University Law Review, Vol. 25, No. 1, 2012).
• Anthony C. Infanti, LGBT Families, Tax Nothings, (Journal of Gender, Race and Justice, Forthcoming).
• Geetanjali Srikantan, The Difficulties of Religious Pluralism in India: Analysing the Place of Worship as a Legal Category in the Ayodhya and Bababudangiri Disputes, (July 1, 2012).
• Ihsan Yilmaz, Towards a Muslim Secularism? An Islamic ‘Twin Tolerations’ Understanding of Religion in the Public Sphere, (Turkish Journal of Politics, Vol. 3, No. 2, Winter 2012).

From SmartCILP:

• Vincent J. Samar, Religion / State: Where the Separation Lies, 33 Northern Illinois University Law Review 1-64 (2012).
• Special Issue: The Authoriality of Religious Law. Guest Editor Massimo Leone; preface by Massimo Leone; articles by Julia J.A. Shaw, Michael Salter, David S. Caudill, Paolo Heritier, Ugo Volli, Shulamit Almog, Lotem Perry-Hazan and Massimo Leone. 26 International Journal for the Semiotics of Law 91-239 (2013).

Roundup of Recent Employment Discrimination Cases

Here is a roundup of recent developments in cases involving religious discrimination in employment:

The EEOC announced on April 4 that it has sued Bo-Cherry, Inc., a North Carolina corporation that operates several Bojangles' restaurants, charging failure to accommodate a Muslim job applicant's religious exercise, by requiring him to shave his beard rather than using a beard net.

In New York last week, a Muslim employee of the New York City Transit Authority who had worked for over ten years as a car cleaner filed a federal court lawsuit claiming that when he transferred to a different depot, he faced a campaign of hostility toward his religion and failure to accommodate his religious observances. Gothamist reports on the lawsuit. The complaint (full text) in Ahmed v. New York City Transit Authority, (ED NY, filed 4/3/2013) details interference with plaintiff's ability to attend Friday Jummah services, as well as other observances.

In Price v. Warrensville Heights City Schools, 2013 U.S. Dist. LEXIS 45552 (ND OH, March 29, 2013), an Ohio federal district court rejected a claim by a para-professional that the Warrensville Heights schools used insubordination charges as a pretext for terminating her, when their real reason was her refusal to join the principal's church and defendants belief that plaintiff's lesbian sexual orientation equated with her Pentecostal religious beliefs. The magistrate's decision in the case is at 2012 U.S. Dist. LEXIS 187333 (ND OH, May 3, 2012).

Recent Prisoner Free Exercise Cases

In Lewis v. Sternes, (7th Cir., March 28. 2013), the 7th Circuit affirmed an Illinois federal district court's rejection of a complaint by an inmate who was a member of the African Hebrew Israelites of Jerusalem. Plaintiff claimed that his free exercise rights were violated by authorities' insistence that he cut his dreadlocks because they pose a security risk.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court adopted only in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) in a claim by  a Rastafarian inmate that he was denied a religious diet. The court rejected a statute of limitations defense but dismissed the suit on qualified immunity grounds.

In Guillory v. Fischer, 2013 U.S. Dist. LEXIS 43986 (ND NY, March 28, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 43981, March 7, 2013) and permitted a Jewish inmate to move ahead with complaints that he was prevented from observing the Fast of Tammu and the festival of Sukkot.

In Crump v. Prelesnik, 2013 U.S. Dist. LEXIS 45126 (WD MI, March 29, 2013), a Michigan federal district court, agreeing with the conclusions of a federal magistrate judge (2013 U.S. Dist. LEXIS 46666, Feb. 13, 2013), and dismissed a Muslim inmate's complaint that he was not permitted to participate in Friday group prayer without signing the prison's form declaring he is a Muslim.

In Handy v. Diggins, 2013 U.S. Dist. LEXIS 45561 (D CO, March 29, 2013), a Colorado federal district court rejected in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 45542, Feb. 26, 2013) and permitted a Muslim inmate to proceed with his claim that his free exercise rights were infringed when prison authorities denied him a kosher diet.

In Thomas v. Lawler, 2013 U.S. Dist. LEXIS 44281 (MD PA, March 28, 2013), a Pennsylvania federal district court granted certain discovery requests by a physically disabled Muslim inmate who was suing claiming he is forced to climb five flights of stairs for Muslim worship in a chapel with insufficient space and without a restroom. The discovery requests granted were ones relating to past 1st Amendment violations by defendant prison authorities.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 41421 (WD VA, March 25, 2013), a Salafi Muslim inmate alleged dozens of infringement of his religious rights. A Virginia federal district court dismissed all of the claims except "his RLUIPA claims for injunctive and declaratory relief regarding the compact-disc policy, the prayer-oil policy (only as it relates to purchasing the oil from Keefe Commissary), the halal-diet policy, and the Salafism policy." The federal magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 187385, Dec. 26, 2012.

In Gambino v. Payne, 2013 U.S. Dist. LEXIS 46576 (WD NY, March 28, 2013), a New York federal district court dismissed, with leave to amend, a complaint by a Jewish inmate that, as a pre-trial detainee, his kosher meals were mutilated, smashed, shaken and contaminated with pubic hair on a daily basis.

In Jones v. Conrad, 2013 U.S. Dist. LEXIS 44534 (ED AR, March 28, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 44535, Feb. 15, 2013) and dismissed a complaint by an inmate that his rights were violated when he was denied swastika mail sent to him, and when he was denied a receipt of "Islam in History" because it was shipped in the same package as a prohibited book titled "Pornoland."

Court Denies TRO Against Contraceptive Coverage Mandate To Manufacturing Company

In MK Chambers Co. v. Department of Health and Human Services, (ED MI, April 3, 2013), a Michigan federal district court refused to issue an ex parte temporary restraining order to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a closely-held machinery components company and its two Catholic owners.  The court held that plaintiffs had not shown that they are likely to succeed either on their 1st Amendment or RFRA challenges.  As to RFRA, the court said:

Courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA.... At this stage of the proceedings, without benefit of Defendants' response, Plaintiffs have not shown that Plaintiffs will prevail under the RFRA.

Attorneys Raise Interesting Arguments Seeking Release of Amish Convicted of Hate Crimes

AP and the Cleveland Plain Dealer report on interesting attempts by lawyers to obtain release while their appeals are pending for Samuel Mullet and several of his Bergholz Amish followers who were convicted last year on hate crime charges for hair and beard cutting attacks on a rival group of Amish. (See prior posting.)  Attorneys claim that assigning the convicted Amish to prisons around the country, some 1,000 miles away from home, is cruel and unusual punishment.  Relatives of the convicted Amish, because of religious restrictions on means of travel, cannot fly to see them, and must hire drivers to visit them by automobile. The motions also argue that language in last year's Supreme court decision upholding Obamacare as a tax, but not as a regulation of commerce, casts doubt on the constitutionality of the hate crimes law as applied to this case where the interstate commerce nexus was that the clippers and scissors used in the attacks came from out of state. The motions also argue that the hate crime law was not intended to apply to disputes among a religious group's own members.

UPDATE: On April 9, Federal Judge Dan Polster denied Samuel Mullet's motion for release, ruling that he still poses a threat to his Amish community and that his appeal does not raise substantial questions of law. (AP).

Biden and Obama Speak At White House Easter Prayer Breakfast

Yesterday, President Obama and Vice President Biden marked the end of the Easter season with a White House Prayer Breakfast.  The White House has released the full text of their remarks. In introductory remarks, Vice President Biden said in part:

For me, the essence of my faith is tolerance:  not being judgmental about people of different faiths.  When I was in Rome a few weeks ago, Pope Francis spoke movingly in his homily about our commitments to each other, not just as people of faith, but, he went on to say, but as human beings.

President Obama then spoke, saying in part:

To all the pastors in the house, I hope you’ve enjoyed some well-deserved rest after a very busy Holy Week.  I see some chuckles, so maybe not.  (Laughter.)  Here at the White House, I’m pleased to say that we survived yet another Easter Egg Roll.  (Laughter.)

Now, if you’ve been to this breakfast before, you know that I always try to avoid preaching in front of people who do it for a living.  That's sound advice.  So this morning, I'm just going to leave the sermon to others and offer maybe a few remarks as we mark this -- the end of this Easter season.

In these sacred days, those of us as Christians remember the tremendous sacrifice Jesus made for each of us –- how, in all His humility and His grace, He took on the sins of the world and extended the gift of salvation.  And we recommit ourselves to following His example –- to loving the Lord our God with all our hearts and all our souls and with all our minds, and to loving our neighbors as ourselves. 

That’s the eternal spirit of Easter.  And this year, I had -- I think was particularly special for me because right before Easter I had a chance to feel that spirit during my trip to the Holy Land.  And I think so many of you here know there are few experiences more powerful or more humbling than visiting that sacred earth. 

NYC Reports 2 Infant Post-Circumcision Herpes Infections Despite New Regulations

Last September, New York City's Board of Health adopted a controversial rule that requires informed consent from a parent or guardian in a Jewish ritual circumcision where a mohel will use the controversial procedure known as metzitzah b’peh.  The procedure, whose use is limited to certain Orthodox Jewish ritual circumcisions, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. (See prior posting.) Nevertheless, according to ABC News yesterday, in the last 3 month, two infants in New York City's ultra-Orthodox community have been infected with herpes following their circumcision

Hundreds of Thousands of Bangladeshis Demonstrate For Blasphemy Law

In Bangladesh today, hundreds of thousands of protesters supporting the Islamist group Hefazat-e-Islam descended on the capital Dhaka in support of 13 demands by the group, including a call for enactment of a blasphemy law with a death penalty aimed at those the protesters call "atheist bloggers." As reported by Al Jazeera the protests are a reaction to trials and sentences imposed on leaders of the Jamaat-e-Islami party for crimes committed during the country's bloody 1971 Liberation War. Secularists staged a rival protest. The bloggers who are the targets of the call for a blasphemy law have pressed for imposition of the death sentence on those found guilty of war crimes during the country's war of liberation.

Milwaukee Archdiocese To Release Records On Handling Priest Sex Abuse

According to yesterday's Pierce County Herald, the Milwaukee Catholic Archdiocese has agreed, as part of its bankruptcy plan, to release records showing how it dealt over the last 40 years with priests accused of child sexual abuse. Some 3000 pages of documents will be released on July 1 on the Archdiocese website. In a Chapter 11 Update posted on the Archdiocese website,  Archbishop Listecki describes at length the documents that will be released and a summary of what they will reveal. The documents will include depositions of Archbishop Weakland, Bishop Sklba and Cardinal Dolan taken in the Chapter 11 bankruptcy proceeding. Archbishop Listecki said:

I believe sharing these documents publicly will finally bring to a close a criticism that the Church continues to hide or conceal information, or that there are “secret files” tucked away in our archives.  I can assure you, there are not.

The documents apparently do not deal with priests in religious orders or non-clergy church personnel accused of abusing children.

Juvenile Court May Order Immunization of Children In State Custody Over Religious Objections of Parents

In In re M.M., (OR App., April 3, 2013), the Oregon Court of Appeals upheld the authority of a juvenile court to order immunization of children who are wards of the court, even though the children's mother and father have religious objections to immunization.  At issue is a court order involving eight children (between 1 and 8 years old) taken from their parents and placed in custody of the Department of Human Services after the court found their conditions endangered their welfare. The court held that "nothing in the juvenile code provisions that authorize the juvenile court or a child's legal custodian or guardian to make health-care decisions for a child limits that authority by providing or recognizing a right of parents to exempt their children from immunization."  The court also concluded that "the order did not unlawfully infringe on parents' constitutional rights to direct the upbringing of their children." The Oregonian reports on the decision.

Pakistan Tests Islamic Knowledge of Legislative Candidates

Pakistan's Constitution, Art. 62, provides, among other things, that a person shall not be qualified to be a member of Parliament (Majlis-e-Shoora) unless "he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins." Yesterday's Wall Street Journal reports that for the first time election officials are enforcing this provision for candidates in the May 11 elections for the lower house of parliament and for four provincial legislatures. Individuals filing to be candidates are being asked to recite verses of the Qur'an or prayers. Their responses are being shown on television. In the country, 17,186 candidates are running for 849 contested legislative seats. Candidate screening is being carried out by judges temporarily working for the independent Election Commission. Candidates are being screened to see if they meet other constitutional requirements as well, such as being "of good character and ... not commonly known as one who violates Islamic Injunctions," and being "sagacious, righteous and non-profligate and honest and ameen."

UPDATE: On Friday evening, a Lahore High Court justice issued an order instructing election officials to "immediately refrain from asking random intrusive and inquisitive questions that have no nexus with information given in the nomination papers or do not arise from the objections raised by the other side."  (Zee News).

New Egyptian Law Will Permit Religious Slogans In Election Campaigns

Bloomberg News reports that on Wednesday, the upper house of Egypt's parliament-- the Islamist led Shura Council-- approved a new political rights law that drops the ban on religious slogans in election campaigns.  It instead replaces the ban with a prohibition of slogans involving "gender and religious discrimination." (The Shura council is the only branch of parliament functioning, since the courts shut down the lower chamber.)  Secularists and human rights groups are critical of the new law, saying it is an attempt by the Muslim Brotherhood to take the political battle in a religious direction. According to Xinhua, some analysts believe the Supreme Constitutional Court will strike down the law on the basis that Chap. I, Art. 6 of Egypt's Constitution prohibits political parties based on religion.

Classroom Exercise Using "Jesus" To Illustrate Cultural Symbols Leads To Threats Against Instructor and University

According to the Palm Beach Post, last week Florida Atlantic University placed a non-tenured Communications instructor on paid administrative leave for his own safety and to prevent further disruptions to the University's operations, after he and the Communication and Multimedia Studies Department received numerous threats over a textbook exercise that the instructor used in a Feb. 25 class. The instructor, Deandre Poole, who is also vice chairman of the Palm Beach County Democratic Party, was teaching a course in intercultural communications using a standard textbook, "Intercultural Communication: A Contextual Approach."  He took an exercise from the instructor's manual that accompanies the book. As described by the Palm Beach Post:

The manual, which warns that the exercise is “a bit sensitive,” says the teacher should have students write “Jesus” on a piece of paper, then put the paper on the floor and “think about it for a moment. After a brief period of silence, instruct them to step on the paper. Most will hesitate. Ask why they can’t step on the paper. Discuss the importance of symbols in culture.”

One student, Ryan Rotela, objected to the exercise, and after class shouted at Poole and threatened to go to the media.  Poole filed an incident report with campus security and the student was ordered not to attend class further until the issue was resolved.  Rotela then went to a local television station with the story, which quickly gained national attention. Poole, the University and the county Democratic Party have received threatening calls and hate mail, some of them racist. Subsequently disciplinary charges against the student were dropped and the University announced the exercise would not be used again. Nevertheless, a local pastor plans to lead a "Take A Stand For Jesus" march to the University.

Poole, who does not want his teaching career defined by this incident, describes himself as a very religious Christian.

Hopi Tribe Seeks To Stop Auction of Sacred Artifacts In France

The Hopi Indian Tribe of Arizona is enlisting the help of the U.S. government to try to stop an auction in Paris next week of $1 million worth of sacred Hopi artifacts.  According to the New York Times yesterday, the Hopi spiritual items are being sold by a collector who purchased them over a 30-year period in the United States. The Hopis have sent a letter of objection to the Néret-Minet auction house, citing a clause in the tribe's 1936 Constitution that they say demonstrates the items are "held under religious custody by the Hopi people." Even though international agreements allow foreign nations to enlist U.S. aid in retrieving their antiquities from the United States, the U.S. does not have reciprocal agreements covering U.S. artifacts abroad.

IRS Revokes Closed Hospital's "Church Plan" Ruling To Get Insurance For Retirees

The New York Times reported earlier this week on the unusual recent decision by the Internal Revenue Service to revoke its 2003 "church plan" designation for the employee retirement plan of Hospital Center of Orange. This allows the Pension Benefit Guaranty Corporation to pick up payments to retirees of the financially-troubled Catholic-affiliated New Jersey hospital that closed 8 years ago. The Times says that the hospital's problems:

underscores a wrinkle in the federal pension law, which some faith-based employers have used to save money, despite the risks. Churches and workplaces with religious affiliations have been able to avoid the complex and costly requirements of the federal pension law, known as Erisa, by obtaining an I.R.S. ruling that their pension plans were church plans.

The designation not only freed them from having to fund their workers’ benefits, it also meant they could stop paying insurance premiums to the government and receive refunds on their last six years’ worth of premiums.

Tough economic times, and pitches from benefits consultants, have prompted more than 100 faith-based employers to seek church plan status....

[Thanks to Ken Myers for the lead.] 

13 State AG's Urge Broader Conscience Exemptions From Contraceptive Coverage Mandate

The Attorneys General of 13 states last week submitted to the Department of Health and Human Services a joint letter (full text) commenting on the Department's proposed rules that attempt to accommodate objections raised by non-profit religious organizations to the scope of the Affordable Care Act contraceptive coverage mandate. The letter urges the federal government to extend to all religious-affiliated nonprofits the exception that is available to houses of worship. It also calls for creation of a meaningful exception to the mandate for for-profit business owners who object on conscience grounds. Christian Post reports on the letter.

North Carolina Legislators Propose Nullification Resolution In Response To County Prayer Policy Challenge

As previously reported, last month the ACLU of North Carolina filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer.  In response, on April 1 two members of the state House of Representatives from Rowan County (with 12 co-sponsors) introduced what amounts to a nullification resolution. HJR 494 (full text) provides (after a series of whereas clauses asserting states' rights theories):

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

AP and Huffington Post yesterday reported on the bill.

UPDATE: According to an April 4 report by WRAL, House Speaker Thom Tillis' office says the resolution is dead and will not be voted on.

Cert. Petition Filed In Hutterite Challenge To Workers Comp Coverage

A petition for certiorari (full text) was filed Monday with the U.S. Supreme Court in Big Sky Colony, Inc. v. Montana Department of Labor and Industry. In the case, the Montana Supreme Court in a 4-3 decision upheld against constitutional attack amendments to the state's workers compensation law that bring Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services for in-kind services rather than wages. Becket Fund's website furnishes more information on the case.