Cross Dispute Settled By Auction of Public Land To Non-Profit Group

Yesterday's Riverside, California Press-Enterprise reports on last week's unusually amicable resolution of a dispute over the cross atop Riverside’s Mount Rubidoux.  The mountain has been a public park since 1955. Last summer, Americans United for Separation of Church and State complained about the cross, and the city in response decided to sell off by auction the .43 acre plot of land on which the cross stands. At the April 11 auction, Totally Mt. Rubidoux, a coalition of three local nonprofits formed to preserve the cross, cast the winning bid of $10,500. (Press-Enterprise 4/11) Americans United says it is satisfied because "this cross will no longer be on public property, so it will no longer send a message that the city favors the Christian religion."

Unusual Fall-Out and Comments Follow Food Company's Challenge To ACA Mandate

As previously reported, last month Eden Foods, a natural and organic food company, filed what seemed to be a clone of the numerous lawsuits by Christian-owned companies challenging the Affordable Care Act contraceptive coverage mandate. However, yesterday Salon reported on the far-from-typical subsequent developments. First, Salon reports a "massive backlash among [Eden's] liberal customer base."  Much of the opposition appeared as comments on Eden's Facebook page.  Second, in an earlier Salon interview Eden CEO Michael Potter cast substantial doubt on whether his objections were really religion-based.  Potter said:

I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.

Interfaith Service In Boston Marks Marathon Bombing

Yesterday, in the aftermath of the Boston Marathon bombings, Boston's Cathedral of the Holy Cross hosted a Healing Our City Interfaith Service. The schedule of speakers included the mayor of Boston, the governor of Massachusetts, President Barack Obama, and religious leaders representing the Catholic, Greek Orthodox, Protestant, Jewish and Muslim faiths. The Catholic Sun reports on the service.  In his remarks (full text) President Obama said in part:

Scripture tells us to “run with endurance the race that is set before us.”  As we do, may God hold close those who’ve been taken from us too soon.  May He comfort their families.

The White House reports:

After the service, President and Mrs. Obama stopped by Boston's Cathedral High School to thank some of Boston's first responders and volunteers for their tireless efforts over the past few days, and then the President visited patients, their families and hospital staff at Massachusetts General Hospital, while the First Lady stopped by Boston Children’s Hospital and Brigham and Women’s Hospital.

The full text of remarks by Governor Deval Pattick and Cardinal Sean O'Malley are also available. C-Span has a video of the entire service.

Christian Club's Suit Against Snow College Settled

The Salt Lake Tribune reported yesterday that a Utah federal district court has approved a settlement in Solid Rock Christian Club v. Wyatt.  The suit, against Ephraim, Utah's public 2-year Snow College, claimed that the school's policy unconstitutionally treated student groups affiliated with religious institutions differently than other student groups. The school relegated to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, and also placed limits on plaintiffs' participation in the "Paint the Town" Homecoming activity. (See prior posting.) Under the settlement, the school distributed a new handbook that eliminates the tiered classification of student groups and changes the method by which funds are distributed to student organizations. The school also affirmed that while it currently does not plan to sponsor the "Paint the Town" event, if it does so in the future it will not restrict religious themes or imagery. The school also paid $12,000, of which all but $800 went for attorney's fees to Alliance Defending Freedom.

5th Circuit: Factual Issues Require Trial In Bus Driver's Religious Accommodation Claim

In Antoine v. First Student Inc., (5th Cir., April 10, 2013), the U,S, 5th Circuit Court of Appeals held that disputed issues of fact require that a Title VII religious accommodation claim brought by a Seventh Day Adventist be remanded for trial to the Louisiana federal district court.  At issue is the attempt by plaintiff, a school bus driver, to adjust his work shift to avoid working after sunset on Friday afternoons when his Sabbath began. The court held that factual issues remain as to whether the bus company, First Student, Inc., reasonably accommodated driver Robert Antoine's religious needs:

First Student asserts that it was solely Antoine’s responsibility to find a replacement driver, while Antoine asserts that First Student offered to find a substitute driver and then failed to follow through on this offer. As to the second issue, First Student contends that the CBA [collective bargaining agreement] generally prohibits voluntary shift swaps, but that it intended to circumvent this general prohibition if Antoine first found someone to take his shift. On the other hand, Antoine asserts that First Student never pursued a preliminary agreement from the union to consider any alterations to the CBA in order to accommodate him. 

Adventist News Network reports on the decision.

9th Circuit Oral Arguments Available In Challenge To California Teen Reparative Therapy Ban

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging California's ban on mental health care professionals providing so-called reparative therapy to teens.  California last year enacted the Sexual Orientation Change Efforts provision (full text) that bars mental health care providers from engaging in efforts to change the sexual orientation of anyone under 18 years of age. Separate federal district court judges took opposing positions on whether the law violates free expression protections. (See prior posting.) Appeals in both cases were heard yesterday. The audio of the arguments in Pickup v. Brown and in Welch v Brown is available from the 9th Circuit's website. AP reports on the oral arguments.

McDonald's Settles Class Action Over Misrepresenting Chicken As Halal

According to the Detroit Free Press, a Michigan trial court on Wednesday approved a settlement in a class action lawsuit brought against McDonald's for sometimes selling non-Halal chicken products to customers as Halal meat. Two McDonald's restaurants in Dearborn, Michigan are the only two U,S. outlets of the restaurant chain that serve Halal chicken. Under the settlement, McDonald's will pay $700,000. Of that only $25,000 goes to the lead plaintiff in the case. $275,000 goes to a Muslim health center in Detroit; $150,000 goes to the Arab American National Museum in Dearborn; and $250,000 goes for attorneys' fees. Critics of the settlement argue that more of it should have gone to individual Muslims impacted by the restaurants' actions.  For two months, an injunction had effectively shut down a Facebook page critical of the settlement.

Supreme Court Says Alien Tort Statute Does Not Apply Extraterritorially

The U.S. Supreme Court today substantially narrowed the ability of foreigners to use U.S. courts to sue over human rights abuses-- presumably including religious persecution-- that occurred abroad.  In Kiobel v. Royal Dutch Petroleum Co., (Sup. Ct., April 17, 2013), Justice Roberts, speaking for a majority of the Court, held that the Alien Tort Statute, 28 USC 1350, does not apply extraterritorially. The statute gives federal district courts jurisdiction over suits by aliens committed in violation of the law of nations.  However, Justice Roberts held that this does not generally apply to conduct that took place outside the United States:

even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.

In the case before the Court, plaintiffs alleged that various multi-national corporations aided the Nigerian government in its human rights abuses in Nigeria in the early 1990's. The case also produced three concurring opinions, each taking a somewhat different approach to the scope of the Alien Tort Statute, but all agreeing it does not apply in the case before the Court. The Los Angeles Times reports on the decision.

Renowned Turkish Pianist Given Suspended Sentence For Blasphemous Tweets

Bloomberg News and Reuters report that on Monday a criminal court in Istanbul, Turkey convicted classical pianist and composer Fazil Say-- Turkey's most internationally renowned artist-- of insulting religious values through Twitter postings. Among the six or so Tweets mentioned in the indictment is one, for example,  that makes fun of a muezzin for taking merely 22 seconds to chant the call to prayer, asking if he has a mistress or some raki waiting for him. Another is a retweet of a verse by Persian poet Omar Khayyam: "You say rivers of wine flow in heaven, is heaven a tavern to you? You say two houris await each believer there, is heaven a brothel to you?"

The court imposed a 10 month suspended sentence on Say, indicating that he would be imprisoned only if he commits a similar crime again within the next 5 years. There were also suggestions from a plaintiff in the case that the sentence might be dropped if it is shown, as has been suggested, that Say suffers from autism. The European Commission issued a statement criticizing the blasphemy conviction, emphasizing the importance for Turkey to fully respect freedom of expression as protected in the European Convention on Human Rights. Turkey's application to join the European Union has been delayed, in part because of its civil liberties record.

South Dakota City Opts For No Formal Prayer Policy In Face Of Challenge

The Rapid City (SD) Journal reports on the response of Rapid City Council to objections that have been raised to its invocation policy. In January, the Freedom From Religion Foundation wrote to Council asking it to end its tradition of opening Council meetings with an invocation. Council responded at its Feb. 4 meeting by voting to continue to have an invocation and asking the city attorney to draft a formal written policy on the issue. On Feb. 15, FFRF wrote another letter (full text) setting out its legal position. In a Memo to the Mayor and Council dated April 3 (full text), city attorney Joel Landeen suggested elements of a policy that would strengthen the city's legal position: Move the invocation before the meeting formally starts and limit the time of those delivering it; formalize an inclusive process for selecting those who will deliver the invocation; state that the invocation should be non-sectarian and that it should not be used to proselytize or disparage other religions. By a unanimous vote, however, City Council last Monday chose instead to adopt no policy and remain in the position of defending its traditional informal invocation policy. It also agreed in an 8-2 vote that in June it will consider offers by outside organizations that have volunteered to help it with its legal defense if FFRF files suit.

Religion Clause Blog Is 8 Years old Today!

Religion Clause is 8 years old today! To long-time readers, as well as to those who have discovered the blog more recently, thank you for your interest and loyalty.  My Site Meter has recorded over 1.4 million visits since the blog began in 2005-- long ago in the world of social media.

Religion Clause is intentionally a niche blog-- with special appeal to those teaching Religion and Law or 1st Amendment courses, to those working professionally for advocacy organizations, to those litigating in the area or advising organizational clients, to journalists and other bloggers reporting on church-state and religious liberty developments, and to the intelligent citizen who is curious about law and policy in these areas. Religion Clause has often been ahead of many mainstream media in covering important and interesting stories.

In today's highly-politicized world of information, Religion Clause is committed to religiously and ideologically neutral reporting, with extensive links particularly to primary source material. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause and readers' input is invaluable. You can reach me at religionclause@gmail.com. I also welcome Comments to this post with any suggestions for changes or improvements for the coming year. I hope you will all remain loyal readers and will continue to recommend Religion Clause to your colleagues and friends.

Another Contraceptive Coverage Mandate Challenge Dismissed On Ripeness Grounds

In Priests for Life v. Sebelius, (ED NY, April 12, 2013), a New York federal district court dismissed on ripeness grounds a challenge by a non-profit Catholic organization to the contraceptive coverage mandate under the Affordable Care Act. The court concluded: "The current regulations, which are not being enforced against Priests for Life and are being altered, are not truly final." LifeNews reports on the decision.  Numerous other courts have reached a similar conclusion. (See prior related posting.)

Leading Rabbi-Law Prof's False Online Persona Revealed In Investigative Report

The Jewish Channel, in a lengthy investigative report published last week, reveals that Emory Law Professor and leading Orthodox rabbi Michael Broyde has for 20 years used the pseudonym Rabbi  Hershel Goldwasser to publish in numerous scholarly journals, take part in online dialogues and even join a rival rabbinical organization:

The Goldwasser character became a member of an upstart Orthodox rabbinical group, the International Rabbinical Fellowship, or IRF, which was founded in 2008 as a more-liberal rival to the group of which Broyde is a member, the 90-year-old Rabbinical Council of America, or RCA. With that membership, the Goldwasser character gained access to a members-only e-mail listserv with which he could remain apprised of members’ plans and ideological arguments...

The Goldwasser character would also engage in ideological arguments on the e-mail listserv — often using the seemingly fake identity to cite or tout Broyde’s own work.

As the investigative report appeared, Broyde issued an apology, saying that he and a colleague began using the pseudonym 20 years ago for joint writings. He added: "Recently, someone else who I don’t know has started posting using this pen name which has encouraged a journalist to investigate my pseudonymous activity." Tablet Magazine reports that in response to all of this, the Rabbinical Council of America has granted Broyde an indefinite leave of absence as a judge on its rabbinical court, the Bet Din of America. In a statement issued yesterday, Rabbinical Council of America called Broyde's behvior "deeply troubling," and said that Broyde has also requested a leave of absence from his membership in the RCA. It added: "We will continue to investigate this matter in order to determine further appropriate action."

Does White House Fitness Council's Encouragement of Yoga Violate Establishment Clause?

The President's Council on Sports, Fitness and Nutrition promotes the White House's efforts to get American's to adopt healthy lifestyles. One of the Council's efforts is PALA+, part of the President's Challenge, which includes the Yoga PALA Challenge. Encouraging participation, the Yoga PALA Challenge website says:

Yoga has become a universal language of spiritual exercise in the United States, crossing many lines of religion and cultures. Everyday millions of people practice yoga to improve their health and overall well-being. That’s why we’re encouraging everyone to take part in PALA+, so show your support for yoga and answer the challenge!

However, according to an article from the Wall Street Journal yesterday, some argue that this promotion of yoga crosses the line of permissible church-state relationships. An attorney representing families who are challenging the teaching of yoga in the Encintas California Union School District (see prior posting) says that use of government funds to promote yoga violates the Establishment Clause.  He argues that yoga poses are worshipful acknowledgements of Hindu deities. He adds: "because yoga is based in Eastern mysticism, which is not well understood, many tend to try to disingenuously downplay its religious aspects."

Hawaii Court Says Conscience Refusal of B&B To Rent To Lesbian Couple Violates State Civil Rights Law

A Hawaii Circuit Court judge yesterday held that a bed-and-breakfast violated Hawaii's public accommodation civil rights law when its owner, apparently for reasons of religious belief, refused to provide lodging to a lesbian couple. Lambda Legal reports on the court's decision in Cervelli & Bufford v. Aloha Bed & Breakfast. During a Hawaii Civil Rights Commission investigation, the bed-and-breakfast owner said she turned the lesbian couple away because she believes that same-sex relationships are "detestable" and that they "defile our land." AP reports on the decision.

Satmar Hasidic Town Constructs First Ever Sex-Segregated Playground In U.S. To Meet Religious Standards

The Forward reported last week that in the largely Satmar Hasidic village of Kiryas Joel, New York, the first-ever sex-segregated public playground in the United States has been constructed. The 283-acre playground has widely separated areas: one for fathers with their sons; one for mothers with their daughters; one for boys, and one for girls. There are also separate walking trails for males and females. Apparently non-Jews, and non-Haredi (non-strictly Orthodox) Jews will not be permitted to enter the playground at all.  The playground design is seen by community residents as meeting the strict legal requirements of "Torah-true Jews." According to YourJewishNews.com, the playground received special financing from Kiryas Joel mayor Rabbi Abraham Wieder, though the exact source of the funds he made available is unclear. According to Gestetner Updates yesterday, the town previously refused a grant from New York state for the project. The playground is strictly supervised by the Kiryas Joel Committee of Modesty. Behadrey Haredim has photos of the playground.

4th Circuit Dismisses Free Exercise and Other Challenges To Offender Registry Law

In Doe v. Virginia Department of State Police, (4th Cir., April 12, 2013), the U.S. 4th Circuit Court of Appeals dismissed, largely on standing and ripeness grounds, a woman's challenge to changes in Virginia statutes that resulted in her being classified as a sexually violent offender and precluded her from entering the grounds of a school or daycare without first gaining permission from a Virginia court and the school board or the owner of the daycare. One of plaintiff's claims was that her free exercise rights were violated because all the churches of her faith in the area have Sunday Schools. Thus she is precluded from worshiping there without going through a procedure for permission that will disclose her status as a sexual offender to the school community and have dire social consequences for her children.

Recent Prisoner Free Exercise Cases-- Installment #2 For The Week

In Garner v. Kennedy, (5th Cir., April 2, 2013), the 5th Circuit Court of Appeals concluded that the state of Texas had failed to adequately justify under RLUIPA its policy of prohibiting prisoners from wearing beards for religious reasons.

In United States v. Lepp, 2013 U.S. Dist. LEXIS 51262 (ND CA, April 9, 2013), a California federal district court rejected a post-conviction attack on the sentence for possession and manufacture of marijuana imposed on defendant who had claimed that he was a practicing Rastafarian and that marijuana use was a necessary component of his religious practices.

In Neal v. McKune, 2013 U.S. Dist. LEXIS 50769 (D KA, April 9, 2013), a Kansas federal district court dismissed a Muslim inmate's complaint that on several occasions during two Ramadan periods prison officials failed to serve him breakfast early enough, so that he either missed breakfast or was very hurried in being able to eat before dawn.

In Gillis v. Skinner, 2013 U.S. Dist. LEXIS 51112 (WD LA, April 7, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 51131, Feb. 24, 2913) and dismissed an inmate's claim that a corrections officer asked him to leave church services because of his sexual orientation. The court found he was asked to leave because of disruptive behavior.

In Barstad v. Washington State Department of Corrections, 2013 U.S. Dist. LEXIS 51805 (WD WA, April 10, 2013), a Washington federal district court adopted almost all of a magistrate's recommendations (2013 U.S. Dist. LEXIS 51808, March 5, 2013) and dismissed complaints of an inmate, a follower of the Rosicrucian Fellowship, that prison officials violated his rights by eliminating the ovo-lacto vegetarian diet and replacing it with a strict vegan diet. The court also dismissed an added complaints that scanning his identification card in order to get his meal amounted to imposing "the Mark of the Beast," and that eggs and milk were expensive at the prison commissary.

In Sims v. Cabrera, 2013 U.S. Dist. LEXIS 51849 (ED CA, April 9, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that prison officials' refusal to remove his former gang affiliation from his bed card and central file prevents him from freely practicing his religion.

In two related cases, Maynard v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52317 (D ID, April 8, 2013) and Austin v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52318 (D ID, Apri 8, 2013), an Idaho federal district court permitted two inmates to proceed with their claims that terminating them from their volunteer positions aiding seriously ill inmates and otherwise reducing Christian religious activities violated their free exercise, RLUIPA and equal protection rights.

In Jabbar v. Contingency Work Force Solutions, Inc., 2013 U.S. Dist. LEXIS 46661 (D MN, April 1, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 51299, March 4, 2013) and dismissed for failure to exhaust administrative remedies a Muslim inmate's claims that the contract food-service provider failed to provide food that complied with Muslim dietary restrictions by using itemswith alcohol and pork ingredients.

In Smith v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 52547 (WD WA, April 11, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 52625, March 6, 2013) and dismissed a Muslim inmate's objections to the food provided during Ramadan in 2010.

Free Exercise and Other Claims Over Arrest Made In Church Will Proceed To Trial

Family Worship Center Pentecostal Church of Holiness, Inc. v. See, (ED WI, April 12, 2013), is an unusual case in which a church and two of its members filed suit against the city of Milwaukee and two police officers challenging the action of the police in pursuing a mentally disturbed man into the church and arresting him in the pulpit area.  The court dismissed plaintiffs' equal protection claim, holding:

That someone believes that the officers "probably" would have treated a white congregation differently does not constitute direct proof of purposeful discrimination by the officers present on the evening of December 10, 2006.

The court also dismissed various state tort law claims. However, the court concluded that there are 1st, 4th, and 14th Amendment, as well as other state law, claims that must go to trial. The court summarized plaintiffs' 1st Amendment free exercise allegations:

Here, plaintiffs have produced evidence that [Officers] See and Humitz stayed for some time after Jones's arrest ignoring church members' requests to leave so that they could continue their worship. In addition, See ordered the music to stop and ordered a child—speaking in tongues—to "shut up."

Anti-Abortion Protester Denied Attorneys' Fees Award Despite Successful Lawsuit

As previously reported, the U.S. Supreme Court last November in  Lefemine v. Wideman held that a member of Columbia Christians for Life who obtained a permanent injunction but no monetary damages was a "prevailing party" and entitled to an award of attorneys' fees, unless on remand the lower courts find special circumstances that should preclude an award. The suit grew out of a 2005 anti-abortion demonstration at which police officers threatened to charge picketers with breach of the peace if they did not get rid of signs picturing aborted fetuses. Now in Lefemine v. Wideman, 2013 U.S. Dist. LEXIS 51407 (D SC, April 9, 2013), a South Carolina federal district court held that "the special circumstances in this case render an award of attorney's fees to the Plaintiff unjust."  In reaching its conclusion, the court pointed to: "(1) the Defendants' qualified immunity, (2) the absence of a policy or custom of discrimination against abortion protesters by the Greenwood County Sheriff's Office, and (3) the limited nature of the injunctive relief."