Home Schooler Sues To Play On Christian School's Atlhletic Teams

The Central Pennsylvania Patriot-News yesterday reported on a lawsuit by the mother of a home-schooled high school freshman who wants to play on a Christian school's soccer and basketball teams.  Under the rules of the Pennsylvania Intercollegiate Athletic Association, home schoolers are allowed to play on public school teams in district in which they live. Here the parents want the boy to be able to participate on the teams of Covenant Christian Academy, also located in the boy's home district. Plaintiff says that PIAA is misinterpreting its own rules, and is also denying her the constitutional right to direct the education of her son. The suit was originally filed in state court, but defendants are seeking to remove it to federal court.

St. Louis Diocese Provides Court With List of Accused Priests and Victims

According to the St. Louis Post-Dispatch yesterday, the Catholic Archdiocese of St. Louis has complied with a trial court's order to turn over to the court and plaintiff's attorney in a pending lawsuit the names of priests who have been accused of sexually abusing minors over a 20-year period, as well as contact information of the victims. The order comes in a suit filed in 2011 by a woman who says she was abused by a now-defrocked priest. Last week the Missouri Supreme Court rejected the Archdiocese's challenge to the trial court's order.  The list remains under seal. The trial court will appoint an attorney to make first contact with the victims, rather than having that contact come from plaintiff's lawyer.

Neighbor Sues Over Home's Use As Synaogue

KDFW News reported last week on a lawsuit in Dallas, Texas against a rabbi who is using a home in a residential neighborhood as a meeting place for his 25-person Orthodox Jewish congregation.  David Schneider, who lives in the home across the street and was recently elected head of the homeowners association, says that the rabbi is violating homeowners association rules. Schneider is seeking $50,000 in damages contending that the synagogue has lowered his property values.  Religious services are held in the synagogue twice a day, and Rabbi Yaakov Rich has filed a certificate with the City of Dallas notifying it of his use of the building as a synagogue, known as Congregation Toras Chaim. Liberty Institute is defending the synagogue, contending that the Religious Land Use and Institutionalized Persons Act protects the right to use the home for religious meetings and worship. (Press release.)

Recent Articles of Interest

From SSRN:

• Levi Cooper, The Assimilation of Tikkun Olam, (Jewish Political Studies Review 25, no. 3-4 (Fall 2014)).
• Howard Kislowicz, Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation, (Queen's Law Journal, Vol. 39, No. 1, 2013).
• Corey L. Brettschneider, Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines, (Northwestern University Law Review, Vol. 107, No. 2, 2013).
• Galen L. Fletcher, Loyal Opposition: Ernest L. Wilkinson's Role in Founding the BYU Law School, (BYU Studies Quarterly 52, No. 4 (2013)).
• Haider Ala Hamoudi, Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law, (The International Rule Of Law Movement: A Crisis Of Legitimacy And The Way Forward (Harvard University Press 2014 Forthcoming)).
• Eric Bennett Rasmusen, Comments on the Riggs Case as used in the 'Historians and Legal Scholars' Amicus Brief in the Hobby Lobby Obamacare Mandate Case, (February 3, 2014).
• D. Kelly Weisberg, Karen Thompson's Role in the Movement for Marriage Equality, (25 Hastings Women's Law Journal 3, 2014).
• Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, (North Carolina Law Review Addendum, 2014, Forthcoming).
• Andrew F. March, What Can the Islamic Past Teach Us About Secular Modernity?, (Political Theory (Forthcoming)).

From SmartCILP:

• Bogac A. Ergene, Islamic Law in Action: A Historical Discussion, (Reviewing Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt), [Abstract], 38 Law & Social Inquiry 1041-1057 (2013).
• Annika Thiem, Theological-Political Ruins: Walter Benjamin, Sovereignty, and the Politics of Skeletal Eschatology, [Abstract], 24 Law & Critique 295-315 (2013).

New Mexico Supreme Court Upholds Cultural Property Designation For Mount Taylor

In Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee, (NM Sup. Ct., Feb. 6, 2014), the New Mexico Supreme Court upheld the decision of the state's Cultural Properties Review Committee to recognize 400,000 acres of public land on Mount Taylor as a registered cultural property under the New Mexico Cultural Properties Act. The mountain is a sacred site for the Navajos and several other Native American tribes. The court held that it was permissible for the Committee to use federal National Register guidelines and then went on to reject arguments that the Committee has misapplied these guidelines:

the Committee made numerous findings relating to Mount Taylor’s eligibility for listing, including that the nomination satisfied three of the four possible federal criteria because Mount Taylor was associated with significant contributions to our history and with persons significant in our past, and it offers a past and potential future yield of information about our history. Although these findings undoubtedly include a religious component, because religion is part of culture and history, the findings are nonetheless based primarily on historical evidence....  [S]ubstantial evidence supports the Committee’s findings on Mount Taylor’s historic eligibility.... 

The court, applying the Lemon test, also rejected the argument that the listing of Mount Taylor violates the Establishment Clause.

Recent Prisoner Free Exercise Cases

In Wall v. Wade, (4th Cir., Feb. 3, 2014), the 4th Circuit vacated a Virginia federal district court's dismissal of damage claims and held that it is unconstitutional for a prison to condition inmates' participation in Ramadan observances on their providing some physical indicia of Islamic faith, such as a Quran, Kufi, prayer rug, or written religious material obtained from the prison Chaplain’s office.

In Holtz v. Karr, 2014 U.S. Dist. LEXIS 12519 (WD WA, Jan. 23, 2014), a Washington federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his claims against the county alleging that jail policies interfere with his ability to practice Islam and are religiously discriminatory. Plaintiff's complaint covers religious living units, diet, and religious dress, items and prayer.

In Stevens v. Pennsylvania Department of Corrections, 2014 U.S. Dist. LEXIS 12586 (MD PA, Jan. 31, 2014), a Pennsylvania federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 13098, Jan. 14, 2014) and dismissed claims by a Native American inmate for $1 billion in damages for crushing his spirits; a "review of all religious freedoms towards Native American[s]"; and a written apology published in a newspaper after he did not hear his name called out for the Hoop worship service.

In Mitchell v. Fox, 2014 U.S. Dist. LEXIS 13845 (ED WA, Feb. 4, 2014), a Washington federal district court dismissed a Muslim inmate's complaint that his copy of the Qur'an was damaged and later taken and that two prayer books were taken during a search. He could have obtained another copy of the Qur'an from the chaplain.

In Gray v. Lewis, 2014 U.S. Dist. LEXIS 13899 (ND CA, Feb. 4, 2014), a California federal district court permitted an inmate who was a follower of the Yahweh religion to move ahead with his complaint that he was denied kosher meals.

In Fowler v. CDCR, 2014 U.S. Dist. LEXIS 13922 (ED CA, Feb. 3, 2014) and Nible v. CDCR, 2014 U.S. Dist. LEXIS 13924 (ED CA, Feb. 4, 2014), a California federal magistrate judge dismissed with leave to amend complaints by inmates that they were deprived of outdoor worship space chapel access, religious items and funds to practice the Asatru/Odinic religion, while mainstream religions were supported.

In Palermo v. New Hampshire State Prison, 2014 U.S. Dist. LEXIS 14096 (D NH, Feb. 4, 2014), a New Hampshire federal district court allowed an inmate to move ahead with his complaint that prison officials refused to recognize his religion; provide him with religious items or a religious diet; or allow him to receive religious posters or attend group worship.

In Ali v. Stephens, 2014 U.S. Dist. LEXIS 14460 (ED TX, Feb. 4, 2014), a Texas federal magistrate judge granted a Muslim inmate a TRO and preliminary injunction allowing him to wear a one-quarter inch beard, but denied a TRO and preliminary injunction on his request to wear a full beard and to wear his kufi cap throughout the prison at all times.

In Reiske v. Bruno, 2014 U.S. Dist. LEXIS 14696 (D CT, Feb. 6, 2014), a Connecticut federal district court refused to grant an inmate who is a second degree Wicca priest a TRO or preliminary injunction to require prison authorities to recognize his Wicca religion and allow him to purchase various religious items such as candles, oils, bowls and rope.

In Fox v. Stephens, 2014 U.S. Dist. LEXIS 15272 (SD TX, Feb. 6, 2014), a Texas federal district court dismissed an inmate's free exercise claims because they were not appropriately raised by a habeas corpus action and because the suit is subject to the 3-strike bar for frivolous in forma pauperis litigation.

Nigeria Cracking Down on Gays

Today's New York Times carries a long front-page article titled Wielding Whip and a Hard New Law, Nigeria Tries to ‘Sanitize’ Itself of Gays.  Here is an excerpt:

Rights advocates say they have recorded arrests in multiple Nigerian states, but the country’s north has experienced the toughest crackdown. Mr. Jonathan’s national ban has redoubled the zeal against gay people here and elsewhere, according to officials and residents in Bauchi, where Shariah law prevails and green-uniformed Hisbah, or Islamic police officers, search for what is considered immoral under Islam.

“It’s reawakened interest in communities to ‘sanitize,’ more or less, to talk about ‘moral sanitization,’ ” Dorothy Aken’Ova, executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights, said of the law. “Where it was quiet before, it’s gotten people thinking, ‘Who is behaving in a manner that may be gay?’ It’s driven people into the closet.”...

 “God has not allowed this thing; we are not animals,” said Umar Inuwa Obi, 32, a student who said he was in the mob that hurled stones and bottles at the court and the prison van transporting the gay suspects two weeks ago.

“In Shariah court you are supposed to kill the man,” Mr. Obi said, adding that he favored this judgment. “But the government has refused. That’s why they started throwing stones and bottles.”

(See prior related posting.)

Justice Department Will Give Nation-Wide Recognition To Lawful Same-Sex Marriages

In a speech (full text) to the Human Rights Campaign dinner last night, U.S. Attorney General Eric Holder announced that the Justice Department will issue a new policy memorandum on Monday to formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition in carrying out Justice Department activities in all states.

This means that same-sex spouses will be able to refuse to testify against their spouses in federal court proceedings, even in states that do not recognize same-sex marriages. Same-sex marriages will be treated the same as heterosexual marriages in bankruptcy proceedings, allowing same-sex couples to file jointly for bankruptcy and making alimony owed to a former same-sex spouse generally non-dischargeable. Federal inmates in same-sex marriages will have the same spousal visitation, furlough, correspondence and compassionate release rights as opposite-sex spouses. Same -sex spouses will be recognized in various benefit programs administered by the Department of Justice-- the Radiation Exposure Compensation Program; the September 11th Victim Compensation Fund; and the Public Safety Officers’ Benefits Program.

HRC issued a press release reacting to Holder's remarks, saying: "Today, our nation moves closer toward its ideals of equality and fairness for all."

UPDATE: Here is the Memorandum issued by the Attorney General.

Magistrate Recommends Dismissal of Suit Over Disturbing Church Bells

In Devaney v. Kilmartin, (D RI, Feb. 6, 2014), a Rhode Island federal magistrate judge recommended dismissing a Narragansett, Rhode Island resident's complaint about constantly ringing church bells.  The court described plaintiff's complaint:

the Amended Complaint focuses on St. Thomas More Church’s electronically-amplified bells, located across the street from Mr. Devaney’s home, which he contends have gonged and pealed 700 times per week at upwards of 100 decibels for at least thirteen years. The Amended Complaint adds another nearby church, St. Peter’s Episcopal Church, which Mr. Devaney avers has rung its electronically-amplified bells hourly during daylight “beginning after Plaintiff moved to his home” eighteen years ago. Mr. Devaney alleges that the constant ringing has caused emotional distress and denied him peaceful enjoyment of his property.... 

Recommending dismissal without prejudice, the magistrate judge concluded:

While Mr. Devaney’s exasperation is clear as a bell in his Amended Complaint, the connection between his pique and a plausible federal cause of action is not. It is conceivable that he may have an important claim arising under the United States Constitution; however, his pleading does not articulate one.

WPRI reports on the decision.

Australian Court Says Wearing Kippah Does Not Excuse Absence of Bike Helmet

In Thomas v. Kent, (WASC, Feb. 4, 2014), the Supreme Court of Western Australia upheld the conviction of Simon Thomas for riding a bicycle without wearing a protective helmet. Thomas claimed that he was not wearing his helmet because he was wearing a kippah (a Jewish skullcap). Thomas said that he wears a kippah on three occasions each year, one of which is his birthday. But the court said that there had been no evidence introduced as to the religious reason for not placing a helmet over the skullcap, nor was there evidence that wearing a kippah made wearing a helmet impractical. News.com.au reports on the decision.

Pentagon Says New Supplier For Kosher MREs Will Be Found

According to a JTA report earlier this week, the Pentagon says it is committed to supporting the religious dietary requirements of service members. The statement comes after Agudath Israel of America complained to  the top military chaplain that a solicitation by the Defense Logistics Agency last April for bids to cover halal and kosher MREs (meals ready-to-eat) was reissued last month to cover only halal MREs. The Defense Department acknowledges it was unsuccessful in obtaining bids for kosher MREs, but says it has issued a new solicitation and expects to select a supplier by April. Meanwhile it has sufficient kosher MREs on hand to meet the needs of Jewish members of the military deployed to the Central Command region (which includes the Middle East and Afghanistan).

In Fragmented Decision, Washington Supreme Court Finds Discrimination Exemption For Religious Non-Profits Unconstitutional As Applied

The Washington state Supreme Court yesterday answered certified questions from a federal district court in a fragmented decision.  In  Ockletree v. Franciscan Health System, (SA Sup. Ct., Feb. 6, 2014), the state's high court responded to two questions of state constitutional law: (1) Does the exclusion in the Washington Law Against Discrimination for religious non-profit organizations violate the state constitution's equal privileges and immunities clause or its free exercise clause. (2) If not, is the exclusion unconstitutional when applied to prevent a suit by an employee who claims discrimination unrelated to any religious purpose, practice or activity of defendant.  The suit involved a claim of discrimination on the basis of race and disability in the firing of a security guard by a Catholic hospital.

In the lead opinion, 4 justices answered the first certified question in the negative, concluding that "WLAD's definition of 'employe'... does not involve a privilege or immunity" and "does not involve the appropriation of money or application of property, and therefore does not fall within the prohibition of article I, section 11 's establishment clause."

Dissenting, 4 justices disagreed, saying: "WLAD grants religious nonprofits immunity from a right of action that belongs to all Washington citizens by virtue of citizenship. Under the privileges and immunities clause, the legislature cannot grant such immunity to one class of corporations unless there are reasonable grounds for excluding others. Because WLAD grants immunity from discrimination claims that are unrelated to the employer's religious beliefs, it is not necessary to alleviate a concrete and substantial burden on religious exercise."

In a separate opinion, Justice Wiggins provided a 5th vote for answering the first certified question in the negative, concluding that the exclusion is not unconstitutional on its face.  However he also provided a fifth vote for answering the second certified question in the affirmative, but only after insisting that the second certified question needs to be reframed, saying:

The original second certified question improperly focused on whether the employer discriminated on religious grounds, which requires courts to engage in excessive entanglement with religious doctrines and practices. Washington courts would be asked to determine what constitutes a particular religion's purpose, practice, and activity and determine whether the reason for the discrimination is related. This is an intrusive inquiry into religious doctrine. 

When the exemption is applied to a person whose job qualifications and responsibilities are unrelated to religion, there is no reasonable ground for distinguishing between a religious organization and a purely secular organization. Therefore, I agree with the dissent that the exemption is invalid when applied to an employee like Ockletree, assuming that there is no relationship between his duties and religion or religious practices.

(See prior related posting.) AP reports on the decision.

Law Prof-Rabbi Resigns From Rabbinical Group To Avoid Ethics Probe Over Online Pseudonyms

TJC reported yesterday that Emory University law professor Rabbi Michael Broyde has resigned from the Rabbinical Council of America rather than face an ethics investigation by the organization over charges that he created false identities to use online to submit letters to Jewish journals, post blog comments (including ones commenting on his own work), and to join a rival rabbinical group (International Rabbinic Fellowship) to gain access to its listserv.  (See prior posting.) The RCA had already given Broyde an indefinite leave of absence from his membership and from his longstanding role as a rabbinical court judge at the Beit Din of America.  Apparently Broyde's latest resignation applies only to the RCA and not to his Bet Din role. Previously Emory Law School cleared Broyde of violating university rules since his conduct related only to activities in his rabbinic capacity. (See prior posting.)

Cert. Petitions On Prison Grooming Rules

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Jones v. Thompson.  In the case (decided as Knight v. Thompson), the 11th Circuit rejected several Native American inmates' RLUIPA challenges to Alabama prison system grooming rules that prohibit them from wearing long hair as required by their religion. The 11th Circuit held that the short-hair policy for male inmates is the least restrictive means of furthering compelling governmental interests in security, discipline, hygiene and safety. (See prior posting.) A cert. petition (full text) was filed last September in another unrelated case also raising the constitutionality of prison grooming policies-- Holt v. Hobbs. Whether or not to grant cert. in that case, involving a Muslim inmate, is on the calendar for the Court's Feb. 21 conference. (See prior related posting.) [Thanks to Douglas Laycock for the lead.]

Suit Challenges Addition of Cross To Los Angeles County Seal

Yesterday, the ACLU announced that it has filed a federal lawsuit on behalf of a number of plaintiffs challenging the recent decision by the Los Angeles County Board of Supervisors to modify the county seal by adding a cross atop the depiction of the San Gabriel Mission already on it. (See prior posting.) The complaint (full text) in Davies v. Los Angeles Board of County Supervisors, (CD CA, filed 2/6/2014), contends that the cross violates the Establishment Clause as well as provisions in the California constitution that protect free exercise and bar the expenditure of public funds to aid religion. Los Angeles Times reports on the filing of the lawsuit.

Cert. Petition Filed In California Change Therapy Ban Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Pickup v. Brown. In the case,  the 9th Circuit upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the cert. petition.

Scottish Appeals Panel Upholds Catholic Agency's Adoption Criteria

In St. Margaret's Children and Family Care Society v. Office of the Scottish Charity Regulator, (SCAP, Jan. 31, 2014), the Scottish Charity Appeals Panel overturned the decision of the Office of the Scottish Charity Regulator that had directed a Catholic adoption agency to end its adoption placement preference for Catholic couples who have been married for at least two years and its placing on low preference non-Catholics and same-sex couples (since they can only enter civil partnerships). The Appeals Panel held that the agency is a religious organization that can assert its, and its members, right to freedom of religious expression under Art. 9 of the European Convention on Human Rights. Discussing application of the Equality Act, the Appeals Panel said:

The Panel has decided that there is indirect discrimination but that indirect discrimination is allowed in terms of The Equality Act because it is a proportionate means of achieving a legitimate aim. The Panel found both the charities exception and the religious exception as contained in The Equality Act to apply....

BBC News reports on the decision. Law & Religion UK blog discusses the opinion at greater length.

Obama Emphasizes International Religious Freedom At National Prayer Breakfast

This morning, President Obama spoke at the 62nd annual National Prayer Breakfast at the Washington Hilton Hotel. As reported on the White House blog, the First Lady, the Vice President and many legislators, officials and clergy also attended.  In his remarks (full text), the President devoted extensive time to issues of religious freedom around the world, saying in part:

We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love.  Old tensions are stoked, fueling conflicts along religious lines, as we’ve seen in the Central African Republic recently.... 

Our faith teaches us that in the face of suffering, we can’t stand idly by.....[F]reedom of religion matters to our national security.... [T]here are times when we work with governments that don’t always meet our highest standards, but they’re working with us on core interests.... At the same time, we also deeply believe that it’s in our interest, even with our partners, sometimes with our friends, to stand up for universal human rights.  So promoting religious freedom is a key objective of U.S. foreign policy.....  

It is not always comfortable to do, but it is right.  When I meet with Chinese leaders ... I stress that realizing China’s potential rests on upholding universal rights, including for Christians, and Tibetan Buddhists, and Uighur Muslims....

When I meet with the President of Burma...  I’ve said that Burma’s return to the international community depends on respecting basic freedoms, including for Christians and Muslims.  I’ve pledged our support to the people of Nigeria, who deserve to worship in their churches and mosques in peace, free from terror.  I’ve put the weight of my office behind the efforts to protect the people of Sudan and South Sudan, including religious minorities.

As we support Israelis and Palestinians as they engage in direct talks, we’ve made clear that lasting peace will require freedom of worship and access to holy sites for all faiths.... 

More broadly, I’ve made the case that no society can truly succeed unless it guarantees the rights of all its peoples, including religious minorities, whether they’re Ahmadiyya Muslims in Pakistan, or Baha’i in Iran, or Coptic Christians in Egypt.  And in Syria, it means ensuring a place for all people -- Alawites and Sunni, Shia and Christian.

Going forward, we will keep standing for religious freedom around the world.  And that includes, by the way, opposing blasphemy and defamation of religion measures, which are promoted sometimes as an expression of religion, but, in fact, all too often can be used to suppress religious minorities.... We continue to stand for the rights of all people to practice their faiths in peace and in freedom.  And we will continue to stand against the ugly tide of anti-Semitism that rears it's ugly head all too often.  I look forward to nominating our next ambassador-at-large for international religious freedom to help lead these efforts....

And finally, as we build the future we seek, let us never forget those who are persecuted today, among them Americans of faith.  We pray for Kenneth Bae, a Christian missionary who’s been held in North Korea for 15 months, sentenced to 15 years of hard labor.... Kenneth Bae deserves to be free....

We pray for Pastor Saeed Abedini.  He’s been held in Iran for more than 18 months, sentenced to eight years in prison on charges relating to his Christian beliefs.... [W]e call on the Iranian government to release Pastor Abedini so he can return to the loving arms of his wife and children in Idaho.... And as we pray for all prisoners of conscience, whatever their faiths, wherever they’re held....

C-Span has a video of the full 90 minutes of speakers at today's National Prayer Breakfast. Time has a brief summary of highlights.

British Court Issues Summons To Mormon Church Head Alleging Teachings Violate Fraud Act

In Britain last week, a Magistrate's Court issued two nearly identical summonses  (full text 1, 2) to Thomas S. Monson, president of the Church of Jesus Christ of Latter-day Saints, ordering him to appear before the court to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006.  The Telegraph reported yesterday that the summonses stem from a little used procedure in which a private citizen who claims to have evidence that someone has committed a crime can ask a magistrate to summons the alleged violator to respond to charges. Here the private prosecution was filed by Thomas Phillips, a former Mormon who runs MormonThink, a website highly critical of the LDS Church. The summonses allege that Stephen Bloor, a former Mormon bishop, and Christopher Denis Ralph, a former convert, were misled by Mormon teachings to pay an annual tithe to the Church. Volokh Conspiracy discusses the case further.

Church's Challenge To Rezoning Denial Dismissed

In Alger Bible Baptist Church v. Township of Moffatt, (ED MI, Feb. 5, 2014), a Michigan federal district court dismissed a church's constitutional and RLUIPA challenges to a township's refusal to rezone land in a commercial district in which churches are not a permitted use.  The court said:

[Plaintiff] simply alleges that the Zoning Ordinance prevents it from practicing its religion in the precise location where it wants to. But, worthy of emphasis here, a church has no “constitutional right to build its house of worship where it pleases.”

The court's dismissal of plaintiff's equal protection and RLUIPA equal terms claims were without prejudice.  Plaintiff's 1st Amendment and other RLUIPA claims were dismissed with prejudice.