Religion Clause

Friday, March 07, 2014

New Congressional Ahmadiyya Muslim Caucus Formed

The Washington Times and AFP report on the launch last Friday (2/28) of a new Congressional Ahmadiyya Muslim Caucus, co-chaired by Rep. Frank Wolf (R-VA) and Rep. Jackie Speier (D-CA). Some 15,000 to 20,000 Ahmadis live in the United States. Many orthodox Muslim groups consider the Ahmadis apostates because of their theological beliefs, and they have been persecuted particularly in Pakistan and Indonesia. An Ahmadiyya spokesman said that the new Congressional caucus will advocate for the rights of all persecuted religious communities. The Council on American-Islamic Relations expressed mixed feelings about the new caucus, saying: "we question Rep. Wolf’s involvement and genuine concern for issues of importance to our community given his long history of working with anti-Muslim fringe groups and causes." [Thanks to Mahmood Ahmad for the lead.]

Thursday, March 06, 2014

Ukraine's Jewish Leaders Dispute Putin's Charges Of Anti-Semitism In Ukraine

Russian President Vladimir Putin held a news conference (full text) on Tuesday at which he attempted to justify recent Russian actions in Ukraine. He said in part:

What is our biggest concern? We see the rampage of reactionary forces, nationalist and anti-Semitic forces going on in certain parts of Ukraine, including Kiev.

JTA reported yesterday that an open letter to Putin from Ukraine's Jewish community took issue with his remarks about anti-Semitism. Posted on the website of the Association of Jewish Organizations and Communities of Ukraine, the letter written in Russian (full text English translation) and signed by 21 leaders of Ukraine's Jewish community said in part:

Your certainty about the growth of anti-Semitism in Ukraine, which you expressed at your press-conference, also does not correspond to the actual facts. Perhaps you got Ukraine confused with Russia, where Jewish organizations have noticed growth in anti-Semitic tendencies last year.... The Jews of Ukraine, as all ethnic groups, are not absolutely unified in their opinion towards what is happening in the country. But we live in a democratic country and can afford a difference of opinion.

Suit Challenges Wyoming Ban On Same-Sex Marriage

National Center for Lesbian Rights announced yesterday that it has filed a state court lawsuit challenging Wyoming's statutory ban on same-sex marriage and the state's refusal to recognize same-sex marriages performed elsewhere. Unlike a number of other states, Wyoming's same-sex marriage ban is found only in state statutes, and is not embodied in the state constitution. Also the state's refusal to recognize same-sex marriages from other jurisdictions is merely a practice that is not supported by specific statutory provisions. The complaint (full text) in Courage v. Wyoming, (WY Dist. Ct., filed 3/5/2014), alleges that the statutory ban on same-sex marriage and the practice of refusing to recognize same-sex marriages from elsewhere violate the due process and equal protection clauses of the Wyoming state Constitution. It also alleges that the practice of refusing to recognize out-of-state same sex marriages violates Wyoming statutory provision (Sec. 20-1-111) that provides: "All marriage contracts which are valid by the laws of the country in which contracted are valid in this state." Unlike suits filed recently in other states, this lawsuit does not contain claims that the state's ban on same-sex marriage violates the federal constitution. [Thanks to Alliance Alert for the lead.]

Senate Rejects Obama's Nominee To Head DOJ Civil Rights Division

Yesterday, the U.S. Senate rejected President Obama's nominee for Assistant Attorney General to head the Civil Rights Division of the Department of Justice-- Debo Adegbile. Politico reports that several Senate Democrats joined Republicans in the 47-52 vote against cloture that had the effect of defeating the nomination. Adegbile was opposed by law enforcement groups and some senators because of his previous work with the NAACP Legal Defense Fund in helping the convicted killer of a Philadelphia police officer try to overturn his death sentence. Following the vote, President Obama issued a statement (full text), saying in part:

The Senate’s failure to confirm Debo Adegbile to lead the Civil Rights Division at the Department of Justice is a travesty based on wildly unfair character attacks against a good and qualified public servant. Mr. Adegbile’s qualifications are impeccable. He represents the best of the legal profession.... The fact that his nomination was defeated solely based on his legal representation of a defendant runs contrary to a fundamental principle of our system of justice....

British Broadcast Agency Approves KFC's Parody Christmas Ad Campaign

In Britain, broadcast industry self-regulation requires all broadcast ads to be pre-approved to make certain that they comply with the UK Code of Broadcast Advertising. Most of the pre-clearance is done by Clearcast-- an agency created by the country's largest broadcasters. Huffington Post reported yesterday that Kentucky Fried Chicken has obtained clearance for its tongue-in-cheek Christmas ad campaign that some complained mocked Christian worship:

The two television ads and a video on demand ad featured a group of carol singers outside a house singing the lyrics: "We showed up at your house again singing all our stupid songs", with the male homeowner replying: "Normally I'd hose you down, but now it just seems wrong."

Wednesday, March 05, 2014

Affidavit Does Not Establish Applicability of Ministerial Exception Doctrine

Hough v. Roman Catholic Diocese of Erie, (WD PA, March 4, 2014), is an Age Discrimination In Employment suit brought by three former Catholic parochial school teachers who were not hired into a consolidated Catholic school system created when their school closed. The Diocese moved for summary judgment claiming that the "ministerial exception" doctrine precludes plaintiffs' lawsuit. The only evidence that plaintiffs qualify as "ministers" for purposes of the exception were affidavits from the diocese's Vicar for Education stating that all parochial school teachers are considered to be ministers of the faith-- instruction in religious truth and values is infused in all parts of the curriculum. The Pennsylvania federal district court denied defendants' the motion for summary judgment, saying in part:

Although the Supreme Court refused to provide a bright line test for a determination of when someone is accorded ministerial status, Defendants’ argument – that all teachers are considered to be ministers by Defendants – was not enough, in and of itself, for the high court in Hosanna-Tabor.

German Home School Family That Was Denied SCOTUS Review Gets Deferred Status From DHS

Fox News reports that in a surprising development yesterday, one day after the U.S. Supreme Court denied certiorari in the home schooling asylum case of Romeike v. Holder (see prior posting), the Department of Homeland Security granted "indefinite deferred status" to the Romeike family. This means that the German family which home schools its children largely because of the family's Christian religious beliefs will not be deported back to Germany where laws prohibit home schooling. The Romeike family who moved to Tennessee in 2008 were originally granted asylum in 2010, but government appeals of the immigration judge's ruling led to a reversal.

Cert. Petition Seeks SCOTUS Review of Latest Mt.Soledad Cross Decision Ahead of 9th Circuit

A petition for certiorari before judgment (full text) was filed yesterday with the U.S. Supreme Court in Mt. Soledad Memorial Association v. Trunk, asking the Court to review the latest decision in the long-running case prior to the 9th Circuit hearing arguments or deciding the latest appeal. Petitioners are seeking review of a December federal district court order requiring a 43-foot high cross to be removed from the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Legal challenges to the cross have worked their way up and down the courts for 25 years. Liberty Institute issued a press release announcing the filing of the petition.

Kentucky Baptists Use Second Amendment Themes To Reach the Unchurched

The Louisville Courier Journal last week reported on the Kentucky Baptist Convention's (KBC) effort to reach unchurched men through "Second Amendment Celebrations." Guns are given away as door prizes at the events at which speakers focus on hunting and opposition to gun control. KBC spokesman Roger Alford described the controversial events as "outreach to rednecks." He explained:

The day of hanging a banner in front of your church and saying you’re having a revival and expecting the community to show up is over.... You have to know the hook that will attract people, and hunting is huge in Kentucky. So we get in there and burp and scratch and talk about the right to bear arms and that stuff..... We have found that the number of unchurched men who will show up will be in direct proportion to the number of guns you give away.

Reportedly 1,678 men made "professions of faith" at 50 such events last year.

Kentucky To Hire Outside Counsel To Defend Its Refusal To Recognize Same-Sex Marriages, Over AG's Dissent

As previously reported, last month a federal district court ordered Kentucky to recognize same-sex marriages performed in other jurisdictions. The state quickly however filed a motion asking for a stay while it considered its options, and last Friday the court granted a stay until March 20. (Louisville Courier Journal). As reported by AP, yesterday Kentucky Attorney General Jack Conway announced that he will not appeal the decision or seek further stays. In a statement (full text) posted on the Attorney General's website, he said that the federal court's decision was correct and that he should not be wasting state resources on a case the state is unlikely to win. He added that he "came to the inescapable conclusion" that defending Kentucky's refusal to recognize same-sex marriage would be defending discrimination. However moments after the Attorney General's announcement, Kentucky Governor Steve Beshear announced (full text) that the state will hire other counsel to seek a further stay and pursue an appeal to the 6th Circuit in order to "bring certainty and finality to this important matter." [Thanks to Tom Rutledge for the lead.]

Tuesday, March 04, 2014

European Court of Human Rights Upholds British Refusal To Treat Mormon Temple As Place of Public Worship For Tax Purposes

In Church of Jesus Christ of Latter Day Saints v. United Kingdom, (ECHR, March 4, 2014), the European Court of Human Rights, Fourth Section, held that Britain did not violate the non-discrimination provisions of Art. 14 of the European Convention on Human Rights, nor the freedom of conscience and religion provisions of Art. 9, when it held that a Mormon Temple was subject to a reduced tax rate as a place used for charitable purposes, but was not entitled to the full exemption from property taxes that is available to places of "public religious worship." Entry to the Temple is limited to devout Church members who hold a "recommend" from the bishop. The Church's stake center, with its chapel, hall and ancillary rooms, on the same site had been granted the full exemption since entry to them was not limited. In finding no discrimination, the Court said in part:

To establish differential treatment, the applicant Church relied on the argument that, because of the nature of its doctrine, which holds that access to the temple should be restricted to its most devout members who hold a current “recommend”, the law ... provided a lower fiscal advantage to the Mormon Church than to such other faiths as to not restrict access to any of their places of worship.... [I]t is open to doubt whether the refusal to accord an exemption in respect of the applicant Church’s temple in Preston gave rise to any difference of treatment of comparable groups, given that the tax law in question applied in the same way to, and produced the same result in relation to, all religious organisations, including the Church of England in respect of its private chapels. Neither is the Court convinced that the applicant Church was in a significantly different position from other churches ... so as to call for differential treatment ..., since other faiths likewise do not allow access of the public to certain of their places of worship for doctrinal reasons.

Law & Religion UK reports on the decision. [Thanks To Paul DeMello, Jr. for the lead.]

Judicial Conduct Board Convicts Magistrate For Insisting On Child's Name Change

Reuters reports that yesterday a 6-person panel of the Tennessee Judicial Board of Conduct found former child-support magistrate Lu Ann Ballew guilty on charges of violating judicial canons regarding impartiality and bias. The charges stem from a case in which she insisted that parents change their child's first name from "Messiah" to "Martin" because only Jesus should be called "Messiah." She has already been fired from her position as magistrate because of her conduct. (See prior posting.) The panel will be releasing a written opinion in the case later.

North Korea Releases Australian Christian Missionary After He Signs Apology

According to yesterday's International Business Times, the North Korean government has released 75-year old missionary John Short after he signed a confession asking forgiveness for his "insult to the Korean people on February 16" when he distributed Korean-language Christian Bible tracts at a Buddhist temple. Short, an Australian, lives in Hong Kong. The North Korean Central News Agency said that the government decided to expel him "in full consideration of his age." (See prior related posting.)

Monday, March 03, 2014

Supreme Court Denies Review In Home School Asylum Case

The U.S. Supreme Court today denied certiorari in Romeike v. Holder, (Docket No. 13-471, cert. den. 3/3/2014)). (Order List.) In the case, which has been widely followed by home school advocates, the 6th Circuit denied asylum to a German evangelical Christian family that sought to remain in the United States based on a fear of persecution in Germany because of Germany's ban on home schooling. (See prior posting.)

Supreme Court Grants Review In Muslim Prisoner's Challenge To Grooming Rules Barring Beards

The U.S. Supreme Court today granted certiorari in Holt v. Hobbs, (Docket No. 13-6827, cert. granted 3/3/2014). It also granted petitioner's motion to proceed in forma pauperis. (Order List.) In the case, the 8th Circuit affirmed the district court's decision upholding the grooming policy of the Arkansas Department of Corrections that allows inmates to wear trimmed mustaches but otherwise no facial hair, with quarter-inch beards permitted only for a diagnosed dermatological problem. Inmate Gregory Holt is a Muslim whose religious beliefs require him to grow a beard. He proposed that he be allowed to maintain a half-inch beard as a compromise position, to balance his religious beliefs with the prison's security needs. In its per curiam opinion, the 8th Circuit held that "defendants met their burden under RLUIPA of establishing that ADC's grooming policy was the least restrictive means of furthering a compelling penological interest." Last November, the Supreme Court took the unusual step of granting Holt (who also goes by the name Abdul Maalik Muhammad) an injunction barring Arkansas from enforcing its grooming policy against him pending disposition of Holt's cert petition and of the appeal now that review has been granted. According to SCOTUS Blog, arguments in this case will not be heard until next Fall.

UPDATE: Later in the day on March 3, the Supreme Court issued an order (full text) modifying its grant of certiorari, clarifying that the it is limited to the question of whether Arkansas' grooming policy violates RLUIPA "to the extent that it
prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

University In The Middle of 1st Amendment Tussle Over Donor's Plaque

The Indianapolis Star reported last Friday on dispute between Purdue University and one of its donors:

When Michael McCracken and his wife made a $12,500 donation to Purdue’s School of Mechanical Engineering in 2012, Purdue asked the engineering graduate to provide an inscription for a conference room dedication plaque, which would be installed in the recently renovated Herrick Laboratories.

But the words McCracken chose, in honor of his parents, turned out to be controversial.

“To those who seek to better the world through the understanding of God’s physical laws and innovation of practical solutions. In honor of Dr. William ‘Ed’ and Glenda McCracken.”

Purdue rejected the proposed inscription, concerned about church-state issues. Its attorney said:

[G]iven the facts here, our status as a public institution, and the hopelessly muddled state of jurisprudence in this particular area, we could fully expect lengthy and expensive litigation that would wipe out the value of this donation many times over, and we just don’t think that’s advisable for either the donor or the university. Still, we remain open to continued discussions, as we’d much prefer to be in the mode of expressing gratitude, not disagreement, to our donors.

The University's hope of avoiding expensive litigation, however, seems unrealistic. The attorney for the McCrackens wrote the University on Feb. 26 (full text of letter) suggesting alternative language that makes it clearer that the inscription is private speech of the McCrackens. The letter concluded:

Please let us know by March 5, 2014, if you are open to discussing a potential resolution. If not, Dr. McCracken has instructed us to commence litigation to preserve the McCrackens' First Amendment right to reference "God's physical laws" on the plaque. We note that, if thismatter proceedsto litigation and Dr. McCracken prevails, the University will be responsible for his attorneys' fees.

Sunday, March 02, 2014

Recent Prisoner Free Exercise Cases

In Yah'Torah v. New Jersey Department of Corrections, 2014 N.J. Super. Unpub. LEXIS 346 (NJ App., Feb. 21, 2014), a New Jersey appellate court concluded that a Jewish inmate had not shown that his free exercise or RLUIPA rights were violated by the refusal of prison authorities to furnish him goat or sheep meat, grape juice, pistachio nuts, cashew nuts, honeydew melon or watermelon, onions, goat cheese, and leeks to celebrate the New Moon festival.

In Santo Mujahid Islaam v. Greco, 2014 U.S. Dist. LEXIS 21866 (D NJ, Feb. 21, 2014), a New Jersey federal district court allowed an inmate to proceed with his complaint that he was denied the right to attend Muslim Friday prayer services. Other inmates named in the complaint were given the option of joining the action upon payment of filing fees.

In Toppin v. Kornegay, 2014 U.S. Dist. LEXIS 21888 (E.D.N.C. Feb. 21, 2014), a North Carolina federal district court rejected a Native American inmate's claim that a search of his cell involving handling of his sacred items box violated his free exercise rights.

In Lizama v. Hendricks, 2014 U.S. Dist. LEXIS 22955 (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed without prejudice an inmate's complaint that one of the defendants failed to provide him with his kosher meal.

In Winder v. Maynard, 2014 U.S. Dist. LEXIS 23038 (D MD, Feb. 24, 2014), a Maryland federal district court dismissed a complaint by a Wiccan inmate that his celebration of the Samhain Feast was impaired when authorities refused to allow Wiccans to prepare and serve pork products through the prison kitchen facilities.

In Johnson v. Lowry, 2014 U.S. Dist. LEXIS 23216 (ND IN, Feb. 21, 2014), an Indiana federal district court permitted a Native American inmate to move ahead with his free exercise and RLUIPA injunctive action challenging the prison's refusal to allow him to possess various religious items in his cell and to have group services.

In Buckner v. Allen, 2014 U.S. Dist. LEXIS 22695 (MD AL, Feb. 24, 2014), an Alabama federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 23724, Feb. 3, 2014) and dismissed a complaint by a Native American inmate alleging denial of tobacco use during religious ceremonies, interruption of ceremonies, limited use of fires and sweat lodge, allowance of gang members on ceremonial grounds, and the chaplain's desecration of religious items by touching them.

In Davis v. Pierce, 2014 U.S. Dist. LEXIS 25030 (SD TX, Feb. 27, 2014), a Texas federal magistrate judge rejected Native American inmates' challenges to the ban on inmates smoking the ceremonial pipe, infrequent Native American religious services, the grooming policy and the ban on medicine bags outside of cells.

In Hodges v. Sharon, 2014 U.S. Dist. LEXIS 25453 (ED CA, Feb. 26, 2014), a California federal magistrate judge permitted a Messianic Jewish inmate to proceed with his free exercise, RLUIPA and equal protection claims alleging denial of various religious practices, including weekly services and holiday celebrations.

In Godbey v. Wilson, 2014 U.S. Dist. LEXIS 25436 (ED VA, Feb. 26, 2014), a Virginia federal district court dismissed complaints by an inmate who is an Asatru adherent that he is not allowed to drink alcoholic mead during religious ceremonies or wear his hlath (headband with symbols on it) outside the prison chapel.

In Begnoche v. Derose, 2014 U.S. Dist. LEXIS 25580 (MD PA, Feb. 28, 2014), a Pennsylvania federal district court refused to dismiss a Native American inmate's free exercise claims against 3 defendants alleging that they failed to provide him with a spiritual advisor, denied him religious items such as prayer feathers and denied him a special food tray during the Green Corn feast celebration.

In Free v. Garcia, 2014 U.S. Dist. LEXIS 25128 (WD OK, Feb. 27, 2014), an Oklahoma federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 26100, Feb. 14, 2014) and dismissed claims (some with and some without prejudice) that an inmate who is a House of Yahweh adherent did not receive his requested religious meals. A motion to amend the complaint was referred back to the magistrate judge.

State Agency May Bar Employee From Selling His Religious Book During Work Time

In Okemgbo v. Washington State Department of Ecology, (ED WA, Feb. 24, 2014), a Washington federal district court upheld against a First Amendment challenge a state agency's imposing on one of its employees who had authored a book on Christianity and marriage the following work restrictions:

You are not to use your work time for any non-work activity including:

• Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in

• Promoting, selling and/or distributing your book on marriage

• Promoting religious opinions, providing religious information, counseling, offers to pray.

The court concluded that: "the Department’s interest in maintaining a workplace that is free of sexual harassment, does not promote a particular religion, and which maintains some semblance of order and efficiency outweighs the Plaintiff’s interest in selling his book, promoting his religious beliefs, or running his nonprofit organization, while he is supposed to be working."

In Mexican Village, Utility Shut-Off Used To Force Protestant Families To Contribute To Local Catholic Festivals

According to a press release issued last week by Christian Solidarity Worldwide USA, in the Mexican village of Unión Juárez (in Chiapas state) 25 Protestant families who belong to the Mount Tabor Evangelical Church have had their water and electricity cut off for refusing to contribute financially to Traditionalist Catholic religious festivals in the village. The actions against the families began Feb. 11. Guards, ropes and chains have been placed around the families' homes to prevent them from reconnecting their services or receiving visitors until they pay 500 pesos (approximately $38) each. Village authorities base their demands on the Law of Uses and Customs which gives indigenous populations autonomy to exercise traditional governance forms. The families have filed a complaint with the National Commission for Human Rights.