Senate Chaplain Warns Senators In His Invocations

The New York Times in a front page article today reviews the admonitions that Senate Chaplain Barry C, Black has delivered in his invocations in recent days. Foe example, Black, a Seventh Day Adventist and former Navy rear admiral, one day prayed: "Save us from the madness."  Another day he urged in his opening prayer: "May they remember that all that is necessary for unintended catastrophic consequences is for good people to do nothing."

Annual Red Mass Held Yesterday In D.C.-- 5 Justices Attend

Yesterday, the annual Red Mass sponsored by the John Carroll Society was held at the Cathedral of St. Matthew the Apostle in Washington, D.C.  Blog of the Legal Times reports that 5 Supreme Court Justices attended-- Chief Justice Roberts, and Justices Scalia, Thomas, Breyer and Kagan. The Mass, always held on the Sunday before the beginning of the Supreme Court's term, is designed to bless the Supreme Court as well as other judges and government officials. The White House Chief of Staff, the Solicitor General and several other federal court judges also attended.

Nebraska High Court: 16 Year Old Too Immature To Consent To Abortion, Despite Fear of Religious Foster Parents' Reaction

In In re Petition of Anonymous 5, (NE Sup. Ct., Oct. 4, 2013), the Nebraska Supreme Court in a 5-2 decision ruled that a 16 year-old girl living in foster care had not established that she is sufficiently mature and well informed about abortion to have the procedure without the consent of a guardian.  The girl had testified that her foster parents have strong religious beliefs about abortion. She feared that if they learned of her pregnancy, she might lose her foster placement. She also believed that they would at least take it out on her and tell her siblings that she is a bad person. The trial court had held that one of the foster parents needs to give consent, and their religious beliefs did not mean they would not act in the girl's best interest. The Supreme Court majority concluded it could not reach the issue of who should give consent, while the dissenters argued that the girl is in legal limbo because her legal guardian is the state Department of Health and Human Services whose regulations bar either consenting or refusing to consent to an abortion. Raw Story reports on the decision.

Judge Admonished For Publicly Refusing To Perform Same-Sex Marriages

In In re the Honorable Gary R. Tabor, (WA Commn. on Judicial Conduct, Oct. 4, 2013), the Washington state Commission on Judicial Conduct entered a Stipulation, Agreement and Order of Admonishment against a state trial court judge who publicly stated that he would not perform same-sex marriages in his judicial capacity, while continuing to perform opposite-sex marriages.The Agreement provides in part:

Rules 1.1, .1.2 and 3 .1 (C) of the Code [of Judicial Conduct] oblige judges to avoid impropriety and the appearance of impropriety by acting at all times in a manner that promotes public confidence in their independence, integrity and impartiality.

Washington State's law against discrimination, RCW 49.60, sets forth classes of people protected by law against discrimination. Sexual orientation is included in the classes of people protected. Respondent accepts the Commission's determination that, by announcing he would not solemnize same-sex marriages due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality.

When initially contacted by the Judicial Conduct Commission, Judge Tabor stopped performing all marriages in his judicial capacity. The Olympian reports on the Commission's action.

Group Seeks Records of Contacts Between DOD and Mikey Weinstein

Judicial Watch, a conservative advocacy group, announced last month that it has filed a Freedom of Information Act lawsuit seeking all records of communications between the Department of Defense and Mikey Weinstein, founder of the Military Religious Freedom Foundation.  Weinstein has been active in opposing Christian proselytization in the military. (See prior posting.) Explaining the lawsuit, Judicial Watch President Tom Finton said:

The American people deserve to know the full truth about just how close the relationship is between anti-Christian activist Mikey Weinstein and the Obama Department of Defense. There is increasing intolerance for the First Amendment rights of traditional Christians in today's military.

Wisconsin District's Schools Scuttle Holiday Concerts

According to yesterday's Sheboygan Press, elementary schools in Wausau, Wisconsin will no longer hold holiday concerts, and the elite extra-curricular Master Singers choir group at Wausau West High School will be temporarily disbanded.  The moves came after the school board's attorney developed new guidelines for December concerts.  They call for five secular songs for each religious one if the concert contains holiday music. The district also created a committee of 4 teachers to approve all holiday concert selections.  The committee did not have time to get to the Master Singers proposed selections at its Sept. 26 meeting, leaving the choir insufficient time to prepare.

UPDATE: The Wausau Daily Herald reports that after a strong negative reaction to the board's actions, at an Oct. 10 meeting the board voted to place the decision on whether to hold winter concerts back in the hands of school principals, and revert to the former policy of having principals review song lists for each concert. However the board will update the music policy for next year with public input. [Thanks to Blog From the Capital for the lead.]

Recent Prisoner Free Exercise Cases

In Goode v. Bruno, 2013 U.S. Dist. LEXIS 140404 (D CT, Set. 30, 2013), a Connecticut federal district court allowed a Wiccan prisoner to proceed with most of his claims against the Department of Corrections Religious Services Director for failing to allow him to observe 8 seasonal holidays, participate in various rituals and purchase various religious items.

In Banks v. Beard, 2013 U.S. Dist. LEXIS 140629 (MD PA, Sept. 30, 2013), a Pennsylvania federal district court dismissed a complaint that indigent Muslim inmates were unable to participate in the purchase of optional menu items for the feasts of Eid al-Fitr and Eid al-Adhah, and that Muslim inmates lack access to prayer oils.

In Blue v. Skolnik, 2013 U.S. Dist. LEXIS 140901 (D NV, Sept 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist LEXIS 140920, Aug. 21, 2013) and permitted a Jewish inmate to move ahead with his complaint alleging extensive delays in furnishing him a kosher diet.

In Uduko v. Cozzens, 2013 U.S. Dist. LEXIS 141178 (ED MI, Oct. 1, 2013), a Michigan federal district court adopted a magistrate's findings (2013 U.S. Dist. LEXIS 140802, July 26, 2013) and permitted an inmate to proceed with his claim that his removal as leader of the prison Protestant faith group was in retaliation for protesting the cancellation of a planned religious retreat and for lodging a complaint against two officers.

In Walker v. Artus, 2013 U.S. Dist. LEXIS 141574 (ND NY,Set. 27, 2013), a federal magistrate judge recommended dismissing a Muslim inmate's suit seeking to require prison authorities to provide a closed circuit TV or audio feed of Jumu'ah services to inmates in Special Housing Unit who are not permitted to attend congregate religious services.

In Kadamovas v. Lockett, 2013 U.S. Dist. LEXIS 141795 (SD IN, Sept. 30, 2013), an Indiana federal district court dismissed a complaint by an Orthodox Christian inmate that his religious common fare diet was nutritionally inadequate, spoiled, or insufficient. The court held plaintiff had failed to show that named defendants were directly involved in any free exercise or RFRA violation.

In LaRock v. Amato, 2013 U.S. Dist. LEXIS 142002 (ND NY, Sept. 30, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142029, June 4, 2013) and dismissed an inmate's general claim that all involuntary protective custody inmates are precluded from practicing religion.

In Gambino v. Pugh, 2013 U.S. Dist. LEXIS 142138 (ND OH, Oct. 1, 2013), an Ohio federal district court dismissed an inmate's complaint that he was denied kosher meals and Jewish literature. Plaintiff failed a written test as to his sincere belief in the Jewish faith and refused to re-take the test.

In Rumsey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 140956 (WD MI, Sept. 30, 2013), a Michigan federal district court largely adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142633, June 24, 2013) and dismissed most of plaintiffs' claims that their right to practice their Native American religion had been infringed through, among other things, dismantling of a sweat lodge. Plaintiffs were allowed to proceed on their complaint that they were ordered to move their religious ceremonies indoors and that they were required to have at least 5 Native American Traditional Way members present in order to conduct group worship.

In Kamau v. Louisiana State Police Department, 2013 U.S. Dist. LEXIS 142861 (WD LA,Sept 30, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 142860, Sept. 9, 2013) and dismissed a Muslim inmate's complaint that he was not permitted to join with others in Juman prayer outside his dormitory room.

In Harris v. Pimentel, 2013 U.S. Dist. LEXIS 143432 (ED CA, Sept. 30, 2013), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's claim that his free exercise rights were infringed when, during a search of his cell, a correctional officer stepped on plaintiff's copy of the Qur'an and slid it under the bunk on the floor.

House Passes Resolution Encouraging No Reduction In Military Religious Services During Shut Down

Military Times reports that the House of Representatives yesterday passed H. Con. Res. 58 urging the Secretary of Defense to not allow the government shut down reduce the offering of religious services on military bases. The vote for the resolution was 400-1.  Military chaplains continue to work during the shut down, but the resolution is aimed at contract personnel who are involved in performing religious services or conducting religious activities.

State Prison Includes Private Bible College

The New York Times today reports on a Southern Baptist Bible College that operates inside the Louisiana State Penitentiary. So far it has 241 graduates, mostly lifers, including 15 Muslims who took the same courses but minister to Muslim inmates. In addition it has granted hundreds of certificates or associate degrees to men who then can act as informal counselors. The college has structured its operations to avoid church-state problems-- it is privately funded, voluntary and admits non-Christians.

School Jesus Portrait Case Settled

The Columbus Dispatch reports today that an Ohio federal district court has accepted a settlement in Doe v. Jackson City School District. The suit (see prior posting) was an Establishment Clause challenge to a portrait of Jesus displayed on an entrance wall at a Jackson, Ohio Middle School. In April, the school had agreed to take down the picture, but plaintiffs alleged that it was still in view of those entering an art-room storage area. Under the settlement, the school board has agreed to keep the picture off of school district property.  It is also paying $3000 damages to each of the 5 anonymous plaintiffs, and $80,000 in attorneys' fees to the ACLU and Freedom From Religion Foundation.

Florida Prison Authorities Allow Jewish Prisoner To Be Circumcised

Stanford Law School's Religious Liberty Clinic, in a release distributed by e-mail, reports that the Florida Department of Corrections, under threat of a RLUIPA lawsuit, has agreed that Jewish prisoner Pablo Diaz can be circumcised while in prison. The case, as described by the release, involves an unusual factual situation:

[Diaz] was born in Cuba to Jewish parents who decided not to have him circumcised as an infant for fear of political persecution. After returning to the faith as an adult through participation in prison ministry, Diaz petitioned tirelessly for the right to take part in the sacred ritual. Diaz viewed circumcision as indispensable to his standing before God. His request was supported by a mohel who offered to perform the procedure for free.

(See prior related posting.)

Council of Europe's Parliamentary Assembly Calls For Regulation of Ritual Circumcision

Last Tuesday, the Council of Europe's Parliamentary Assembly adopted Resolution 1952, Children's Right To Physical Integrity, and a related Recommendation to members. The Resolution provides in part:

The Parliamentary Assembly is particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, amongst others, female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersexual children and the submission to or coercion of children into piercings, tattoos or plastic surgery....

The Assembly therefore calls on member States to:

...take the following measures with regard to specific categories of violation of children’s physical integrity:

...publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these.... 

clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys....

According to the Jerusalem Post:

Large majorities rejected five amendments that sought to remove or alter references to the circumcision of boys. An amendment that removed a reference to the “religious rights of parents and families” was supported by a large majority of members.

The Resolution and Recommendation are not binding on EU members. Among reactions to the resolution are those of Brendan O'Neill at The Telebraphand Eugene Kontorovich at Volokh Conspiracy.

In Contraceptive Mandate Case, Court Allows Only Limited Delay For DOJ Because of Government Shut-Down

In Priests For Life v. U.S. Department of Health and Human Services, (D DC, Oct. 2, 2013), a D.C. federal district court denied the government's motion for a Stay of Litigation in Light of a Lapse of Appropriations in a suit challenging the final rules on application of the Affordable Care Act contraceptive coverage mandate to non-profit religious organizations. The Department of Justice sought the stay because DOJ attorneys, except in limited circumstances, are barred from working during the current government shut-down. However since previously the parties had agreed on various streamlining procedures conditioned on a court decision by December 31, the court concluded that only a limited extension of the briefing schedule would be granted. The government must now file its response to plaintiff's motion by Oct. 17. ACLJ issued a press release on the ruling. (See prior related posting.)

IRS Asks For Input On Form 1023 Used By Applicants for Non-Profit Tax Status

The Internal Revenue Service published in the Oct. 1 Federal Register a Notice and Request for Comments on changes that should be made in Form 1023, the form used by non-profit organizations to apply for Section 501(c)(3) status. The Notice also asks for comment on the burdens imposed by the Form.  Comments are due by Dec. 2.

NY Methodist Hospital Not Religious Institution For Ministerial Exception Doctrine or RFRA

Penn v. New York Methodist Hospital, 2013 U.S. Dist. LEXIS 142109 (SD NY, Sept. 30, 2013), is in part a Title VII discrimination and retaliation lawsuit by a former part-time staff chaplain at New York Methodist Hospital. Among its defenses, the hospital asserted the ministerial exception doctrine. The court rejected the defense however because of a lack of evidence that the hospital is a religious institution or is religiously affiliated. In 1975, the hospital had amended its articles of incorporation to delete provisions relating to its relationship with The United Methodist Church.  For the same reason, the Religious Freedom Restoration Act does not bar commencement of the action.

10th Circuit Tells District Court To Abate Proceedings In Contraceptive Mandate Case Until SCOTUS Disposes of Hobby Lobby

In Newland v. Sebelius, (10th Cir., Oct. 3, 2013), the U.S. 10th Circuit Court of Appeals held that a district court did not abuse its discretion in granting a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate to a small business and its Catholic owners and officers who object to the mandate on religious liberty grounds. (See prior posting.) The court remanded the case to the district court, but ordered it to abate proceedings until the U.S. Supreme Court completes its consideration of the Hobby Lobby case in which a petition of certiorari has been filed. (See prior posting.)

Mosque Wins Preliminary Injunction Barring Enforcement of Zoning Change

In Al Falah Center v. City of Bridgewater, (D NJ, Sept. 30, 2013), a New Jersey federal district issued a preliminary injunction against enforcement of a zoning law change enacted quickly after a Muslim group applied for a permit to construct a mosque on land it had acquired. The new ordinance barred houses of worship on the newly-acquired land.  The court found a likelihood of success as to plaintiff's RLUIPA substantial burden claim. The court also denied defendants' motion for summary judgment on free exercise, equal protection and RLUIPA claims. The Newark Star-Ledger reports on the decision. Brennan Center has further background and links to pleadings in the case.

Recusal Motion Rejected In Milwaukee Archdiocese Reorganization Case

In In re Archdiocese of Milwaukee, 2013 U.S. Dist. LEXIS 141658 (ED WI, Oct. 1, 2013), Wisconsin federal district court judge Rudolph Randa denied a motion to recuse himself and vacate his earlier decision that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. (See prior posting.) The motion was based on the fact that in 1975 the judge had purchased a burial crypt for his parents in one of the Catholic Archdiocese's cemeteries. In denying the motion, Judge Rnada said in part:

Aging and death are facts of life, not just for judges. Over 500,000 individuals are interred in the Milwaukee Catholic Cemeteries, so my relation to some of those individuals is a characteristic that I share with countless members of this community. The logical conclusion of the Committee‟s argument is that none of these people could render an impartial decision this case. This is untenable, and it is objectively unreasonable.

The Milwaukee Journal-Sentinel reports on the decision.

Recent Prisoner Free Exercise Cases

In Conway v. Purves, 2013 U.S. Dist. LEXIS 112424 (ED MI, Aug. 9, 2013), a Michigan federal district court denied as moot Muslim inmates  challenges the nutritional adequacy of the meals provided during Ramadan 2013.The magistrate's recommendation in the case is at 2013 U.S. Dist. LEXIS 138997, July 18, 2013.

In Entler v. Knox, 2013 U.S. Dist. LEXIS 138837 (WD WA, Sept. 26, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 138838, Aug. 14, 2013)  and dismissed complaints by an inmate who was an adherent of the Essene Assembly of god that his rights were violated when authorities confiscated his religious headdress (made from a white t-shirt) and required him to wear his crucifix inside his clothing.

In Cotton v. Cate, 2013 U.S. Dist. LEXIS 138923 (ND CA, Sept. 24, 2013), a California federal district court held that an inmate who was an adherent of Shetaut Neter may proceed with his claims against the prison chaplain for failing to respond to his request for religious services, items for worship and access to a chaplain of his religion.

In Johns v. Lemmon, 2013 U.S. Dist. LEXIS 139132 (ND IN, Sept. 27, 2013), an Indiana federal district court ruled in favor of a Jewish inmate who, for religious reasons, wants his meals for Saturday delivered to him on Friday before the beginning of the Sabbath.

In Infinite Allah v. Commonwealth of Virginia, 2013 U.S. Dist. LEXIS 139238 (WD VA, Sept. 27, 2013), a Virginia federal district court held that there are issues of fact that preclude the award of summary judgment for the state in a suit by an inmate seeking recognition for his religious group, the Nation of Gods and Earths.

In Johnson v. Nevada ex rel. Board of Prison Commissioners, 2013 U.S. Dist. LEXIS 139426 (D NV, Sept. 26, 2013), a Nevada federal district court, rejecting in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 139422, July 10, 2013), permitted an Orthodox Christian inmate to proceed with his claim for injunctive relief in order to receive kosher meals.

In Wilson v. Sabatka-Rine, 2013 U.S. Dist. LEXIS 139754 (D NE, Sept. 27, 2013), a Nebraska federal district court permitted a Wiccan inmate to proceed with his complaint that authorities confiscated his Tarot Cards and Gemstones. However the court dismissed claims of various other interferences with his ability to practice his Wiccan religion.

In Clay v. Steele, 2013 U.S. Dist. LEXIS 140056 (ED MO, Sept. 30, 2013), a Missouri federal district court dismissed a claim by an inmate who described his religion as Al-Islam that his rights were violated when he was not served meat as part of his religious diet.

Pennsylvania Same-Sex Marriage Ban Challenged In State Court

The Legal Intelligencer reported last week that 21 couples have filed a lawsuit in Pennsylvania's Commonwealth Court challenging the constitutionality of the state's ban on same-sex marriage.  The suit comes on the heels of  a challenge in federal court filed in July by the ACLU. (See prior posting.) Plaintiffs in the most recent case are couples who were issued marriage licences by Montgomery County clerk D. Bruce Hanes who began issuing them in July, despite the ban in state law. (See prior posting.)