Recent Prisoner Free Exercise Cases

In Funtanilla v. Williams, 2014 U.S. Dist. LEXIS 71354 (ED CA, May 22, 2014), a California federal magistrate judge allowed a Seventh Day Adventist inmate housed at a substance abuse treatment center to move forward against most of the defendants with his complaint that he was not permitted to place a copy of the Ten Commandments above his door, get his meals for the Sabbath ahead of time or delivered, and attend worship services.

In Rivera v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 72325 (WD MI, May 28, 2014), a Michigan federal district court permitted Moorish Science inmate to proceed against certain of the defendants for an injunction to require recognition of  Moorish Science Temple of America-1928 as a separate religious group from Moorish Science Temple of America, Inc., (1934 Portion).

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 73106 (D NJ, May 29, 2014), a New Jersey federal district court dismissed an inmate’s complaint that prison rules requiring inmates who work in the kitchen to shave their facial hair discriminates against Muslim, Jewish and Christian inmates who wear beards for religious reasons.

In Free v. Ellis, 2014 U.S. Dist. LEXIS 73118 (D NJ, May 29, 2014), a New Jersey federal district court dismissed without prejudice an inmate’s claim that he was not allowed to attend religious services for a 15-month period.

New Teacher Contracts In Cincinnati Archdiocese Create Controversy

CNN reports today that controversy surrounds the new teacher contracts that must be signed by all teachers in the schools of the Archdiocese of Cincinnati. Going beyond the general language of the past that requires teachers to adhere to Catholic doctrine, the new contracts spell out some specifics. They bar cohabitation or sex outside of marriage, using in-vitro fertilization, living a gay "lifestyle," or publicly supporting any of these.  The new contracts also add the title "minister" to all teachers, regardless of subjects taught-- presumably to allow the Archdiocese to invoke the ministerial exception doctrine if sued for employment discrimination. Cincinnati Catholic Schools Superintendent Dr. Jim Rigg  says the contracts do not add any new requirements; they just explain in clear language some of the principles of the Church. Teacher Roger Rosen commented:

Jesus always acted out of love. Never out of fear, and we're all being asked to act out of fear because the lawyers have taken over.

Court Lets Fired Catholic School Administrator Continue Discrimination Suit

LifeSite News reports that a Washington state trial court judge last week refused to dismiss an employment discrimination lawsuit against Seattle's Eastside Catholic High School filed by Mark Zmuda, its former vice principal. Zmuda was forced to resign after he married his same-sex partner. Zmuda claims that the school violated its own anti-discrimination policy, while the school says Zmuda breached the morality clause in his contract that requires him to publicly uphold the teachings of the Catholic faith.  The school had given Zmuda the option to divorce his spouse and enter a civil commitment ceremony if he wanted to keep his position.

The court rejected the school's argument that the 1st Amendment's freedom of religion protections deprived the court of jurisdiction over the dispute.  King County Superior Court Judge Catherine Shaffer wrote in part: "The Federal and Supreme Courts have made it clear that an employee can sue regardless of ministerial doctrine." Zmuda's suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. (See prior related posting.)

Houston Passes Controversial Equal Rights Ordinance

As reported by CultureMap Houston, on Wednesday the Houston, Texas City Council by a vote of 11-6 passed the controversial Houston Equal Rights Ordinance (full text). The new law protects against discrimination in public accommodations, employment and housing on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy. A provision that would have protected transgender persons in bathroom choice was removed after particularly strong objections from conservative and religious leaders.  Religious organizations are exempted from various provisions of the Ordinance. According to MSNBC, before passage of this ordinance, Houston was the largest U.S. city without local anti-discrimination laws.  Opponents of the measure are attempting to collect the needed 17,000 signatures to put repeal of the Ordinance on the ballot in November's election.

No Problem With School's Rejection of Tattooed Jesus Jumbotron Ad

In Little Pencil, LLC v. Lubbock Independent School District, (ND TX, May 29, 2014), a Texas federal district court rejected the free speech and free exercise claims by an organization that unsuccessfully sought to display a religious ad on a high school football field jumbotron. The ad depicted a tattooed Jesus and a website URL. The ad was part of a marketing concept using a new way to share the Bible's teachings.  The court, finding that the school had created a "limited public forum" in selling ad space, and that its rejection of plaintiff's ad was reasonable. First it implemented the school's broader policy against visible tattoos.  Second, the ad risked creating an Establishment Clause violation because it might be perceived as being endorsed by the school. The Lubbock Advance-Journal reports on the decision.

Top South African Judges Speak At Law and Religion Conference

IOL News and Ecumenical News report on a controversial speech by South Africa's Chief Justice Mogoeng Mogoeng at the University of Stellenbosch's second Annual African Law and Religion conference earlier this week. According to IOL:

Mogoeng decried the levels of maladministration, crime and corruption, and “the extremely low levels to which morality has degenerated… the dishonesty as well as the injustices that have permeated all facets of society - price-fixing and fronting included”.

These, he argued, “in my view would effectively be turned around significantly if religion were to be factored into the law-making process”.

Here is a video of his entire speech. Mogeng, a lay preacher in the Pentecostal Winners' Chapel, has been controversial since his appointment in 2011. (See prior posting.)

Former South African Constitutional Court Judge Albie Sachs also spoke at the Conference, emphasizing the need for different worldviews to co-exist.  Here is a video of his full speech.

House Holds Religious Freedom Hearing on "Countries of Particular Concern"

On May 22, the House Foreign Affairs Committee, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations held a hearing on " Protecting Religious Freedom: U.S. Efforts to Hold Accountable Countries of Particular Concern." The committee's website has a video archive of the full hearing as well as transcripts of the statements of the four witnesses.

Another ACA Contraceptive Coverage Challenge Filed By Catholic Diocese

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed by religious non-profits.  The Catholic  Diocese of Greensburg, Pennsylvania announced that on Tuesday it filed suit in a Pennsylvania federal district court challenging the requirement that its Catholic Charities and Catholic elementary schools sign a self-certification form that triggers contraceptive coverage being provided by their health plan's third-party administrator. Pittsburgh Tribune reports on the case.

2nd Circuit OK's "In God We Trust" On Money

In Newdow v. Peterson, (2d Cir., May 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected challenges to 31 U.S.C. §§ 5112(d)(1) and 5114(b), which require that the national motto "In God We Trust" be placed on all coins and currency. The court agreed with 4 other Circuits that the statutory provisions do not violate the Establishment Clause, Free Exercise Clause, or RFRA, saying in part:

As the Supreme Court has repeatedly indicated in dicta, the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion.....

Appellants argue that ... using currency ... requires them “to bear on their persons . . . a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system.”... Appellants also contend that using money forces them to proselytize.... We respectfully disagree....  As the Supreme Court has previously indicated, the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.

RNS reports on the decision.

Court Rejects Jurisdictional Defenses In IRS 501(c)(3) Policy Challenge

In Z Street, Inc., v. Koskinen, (D DC, May 27, 2014), the D.C. federal district court rejected a number of jurisdictional and procedural defenses raised by the Internal Revenue Service in a viewpoint discrimination suit brought by a conservative pro-Israel group challenging the IRS's "Israel Special Policy."  Plaintiff alleges that the IRS has a policy of sending applications by Israel-related non-profit organizations seeking 501(c)(3) status to a special unit in the D.C. office to determine if the organization's policies differ from those of the Obama administration. Applications by such groups are allegedly subjected to additional review procedures not applied to others. In rejecting the IRS's motion to dismiss, the court said:

Defendant struggles mightily to transform a lawsuit that clearly challenges the constitutionality of the process that the IRS allegedly employs when it determines the tax-exempt status of certain organizations into a dispute over tax liability as a means of attempting to thwart this action’s advancement. But the instant complaint, which in no way seeks an assessment of the taxes to be paid or even a determination of the Plaintiff’s Section 501(c)(3) status, is not so easily deterred.

[Thanks to Steven H. Sholk for the lead.]

Nigeria's National Conference Adopts Recommendations On Religion

In Nigeria, The National Conference has been meeting since March 17. The National Conference grew out of a recommendation from a 13-member Presidential Advisory Committee on National Dialogue. The Conference is considering the reports of its 20 committees on different critical national issues. The Daily Times of Nigeria reports on yesterday's consideration of the report from the Committee on Religion. The National Conference adopted the Committee's recommendation that the government should no longer use public funds to sponsor any program, particularly religious pilgrimages.  Instead the top religious bodies in the country should handle all matters relating to pilgrimages through Pilgrims Commissions managed under a law to be passed by the National Assembly.

The Conference has not yet passed on another recommendation of the Committee on Religion-- the proposed creation of a Religious Equity Commission authorized to advocate, and to enforce constitutional religious rights such as freedom of religion and freedom to acquire land for religious purposes.

 While many applauded the work of the Committee on Religion, others criticized it for avoiding the issue of mission schools and the issue of regulating the location of worship centers.

Canadian Muslim Group Sues Prime Minister's Office For Defamation

The National Council of Canadian Muslims (NCCM) announced on Monday that it has commenced a defamation lawsuit against Prime Minister Stephen Harper and  Jason MacDonald, the Prime Minister’s Communications Director. After NCCM sent a letter to the Prime Minister's office in January objecting to the inclusion of a particular rabbi on the Prime Minister's visit to Israel, a spokesman for the Prime Minister said that NCCM is "an organization with documented ties to a terrorist organization such as Hamas." On Jan. 28, NCCM initiated a libel notice  against the Prime Minister's Office. Since there has been no retraction, NCCM filed suit. OnIslam reports on the lawsuit.

Neo-Pagan Religion Gets Formal Recognition In Siberian Republic

The Moscow Times reported yesterday that after 18 years of trying, the neo-pagan faith Aar Aiyy has finally received formal recognition as a "religious organization" in the Siberian Russian Republic of Sakha. Russia's Law On Freedom of Conscience and Religious Associations sets out the procedure for obtaining recognition.  Under Russian law, religious organizations have greater rights than unrecognized religious groups.

Israel's High Court of Justice Invalidates A Stipend Program For Orthodox Yeshiva Students

Times of Israel reports on a decision handed down Sunday by a 7-judge panel of Israel's High Court of Justice invalidating a government program that awards 4-year Orthodox Jewish yeshiva students stipends designed to assure that they receive the equivalent of the minimum wage.  The court ruled that, like another scholarship program it struck down in 2010, the stipends perpetuate favoritism toward yeshiva students and discriminate against "other groups, including women, those of other faiths, students belonging to other Jewish denominations and university students." It said that the program does not appear to carry out the government's goal of encouraging yeshiva students to enter the workforce after 4 years. The stipend cut-off takes effect next year.  A separate program that aids longer-term yeshiva students was upheld by the Court.

Challenge To Oklahoma 10 Commandments Monument Can Move Forward

In American Atheists, Inc. v. Thompson, (WD OK, May 22, 2014), an Oklahoma federal district court refused to dismiss an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Oklahoma state capitol. Even though the monument is identical physically to the one upheld in 2005 by the U.S. Supreme Court in Van Orden v. Perry, the court said that the physical setting and context in which it is displayed is different.  The court also refused to dismiss plaintiffs' claim that the monument and the state's moratorium on other monuments violates the Equal Protection clause.  The court however did dismiss one of the several plaintiffs for lack of standing. An American Atheists press release has more background.

Michigan Appeals Court: Ecclesiastical Proceedings Toll Statute of Limitations; Hierarchical Structure Poses Factual Question

In Chabad-Lubavitch of Michigan v. Schuchman, (MI App., May 22, 2014), a Michigan appellate court reversed a trial court's dismissal of a suit brought by Chabad-Lubavitch of Michigan in its property dispute with a local Chabad organization. Plaintiff claimed that property of Bais Chabad Torah Center of West Bloomfield should have been titled in the name of the Michigan parent entity rather than in the name of the local organization. The property claim was apparently first raised in a rabbinic panel proceeding as a counter-claim after the head of the West Bloomfield Chabad center filed complaints against the rabbi who heads the Michigan parent organization. The dispute has already been the subject of  five decisions by Jewish rabbinic panels, all of which ruled that title should be in the name of the parent group. However the West Bloomfield Chabad center refused to comply and the rabbinic court gave the parent body permission to file this civil suit.

The court held that the ecclesiastical abstention doctrine would require it to defer to the decision of the Chabad rabbinic determinations if Chabad-Lubavitch is a hierarchical organization. The court concluded, however, that "there is a genuine issue of material fact regarding whether Chabad-Lubavitch is hierarchical in regard to property matters, and thus, whether the ecclesiastical abstention doctrine applies in this case."

In the course or reaching this conclusion, the court made interesting rulings on defendants' statute of limitations defense. It held that "the applicable statutes of limitation were equitably tolled during the time that the parties were engaged in the mandatory ecclesiastical dispute resolution process."  It ruled that prior precedent refusing to toll statutes of limitation while parties are engaged in voluntary arbitration does not apply because the parties were involved in Chabad-Lubavitch's mandatory ecclesiastical procedure. But that left the question of when tolling ended:

[D]efendants dispute the date that the ecclesiastical dispute resolution process was concluded. Plaintiff maintains that the process was not complete until it received permission to bring a lawsuit in civil court.... Defendants maintain that plaintiff should have sought permission earlier so as to comply with the applicable statutes of limitations..... However, the parties’ dispute regarding when the internal procedure was final constitutes a factual question that is not appropriate for resolution by this Court on appeal. Moreover, resolution of the parties’ disagreement about when the internal dispute resolution process was final would require this Court to interpret religious doctrine or polity. Engaging in such an interpretation would be improper because the First Amendment “requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.” ... Accordingly, we are required to defer to plaintiff’s claim that the procedure was not final until it received permission to file a civil lawsuit.... Therefore, plaintiff’s complaint was timely filed.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, 'A Troublesome Right': The 'Law' in Dworkin's Treatment of Law and Religion, (Boston University Law Review, Forthcoming).
• Michael A. Helfand, Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, (Chicago-Kent Law Review, Forthcoming).
• Edward C. Lyons, Causation and Complicity: The HHS Contraceptive Mandate and Asymmetrical Burdens on Free Exercise, (55 South Texas Law Review 229 (2014), Forthcoming).
• Aram Sinnreich, Sharing in Spirit: Kopimism and the Digital Eucharist, (May 14, 2014).
• Kenneth K. Ching, Beauty and Ugliness in Offer and Acceptance, (May 23, 2014).

From SSRN (Non-U.S. Law):

• David B. Kopel, Ancient Hebrew Militia Law, (Denver University Law Review, Vol. 90, 2013).
• Patrick Parkinson, Book Review: 'Managing Family Justice in Diverse Societies' (Eds Maclean and Eekelaar), (Australian Journal of Family Law, Vol. 27, No. 3, pp. 270-75, 2013).
• Andrew F. March, Constitutional Authority, (Ashgate Research Companion to Islamic Law, Ruud Peters and Peri Bearman, eds., pp. 179-192 (2014)).
• Brandy G. Robinson, Religiosity in Constitutions and the Status of Minority Rights, (March 6, 2014).
• Dawood I. Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, Virginia Journal of International Law, Forthcoming.
• Mostafa Beheshti Seresht & Hasba Haj Najafi, Residential Mortgage Crisis – An Islamic Finance Perspective, (May 8, 2014).
• Muhammad Munir, The Share of Orphaned Grandchild under Islamic Law and Pakistani Legal System: A Re-Evaluation of Representational Succession in Section 4 of the Muslim Family Laws Ordinance 1961, (May 10, 2014).
• Richard Ashby Wilson, Inciting Genocide with Words, (Michigan Journal of International Law, Vol. 36, No. 1, 2015, Forthcoming).

From SmartCILP and elsewhere:

• Karen Gantt, Balancing Women's Health and Religious Freedom Under the ACA., [Abstract], 17 Quinnipiac Health Law Journal 1-44 (2013-2014).
• Sarah Lipton-Lubet, Contraceptive Coverage Under the Affordable Care Act: Dueling Narratives and Their Policy Implications, 22 American University Journal of Gender, Social Policy & the Law 343-385 (2014).
• Mark A. Strasser, A Constitutional Balancing In Need of Adjustment: On Defamation, Breaches of Confidentiality, and the Church, [Abstract], 12 First Amendment Law Review 325-384 (2013).
• Alan J. Meese & Nathan B. Oman, Hobby Lobby, Corporate Law, and the Theory of the Firm: Why For-Profit Corporations Are RFRA Persons,127 Harvard Law Review Forum 273 (May 20, 2014).

Two Recent Religious Discrimination Suits In New York

Two interesting religious discrimination suits filed in New York have been reported on in recent days by the media.  TMZ (May 21) reports that Nicole Johnson, a devout Muslim, is suing TV talk show host Bill Cunningham for mental anguish.  She claims that when she showed up in the audience for a taping of Cunningham's show wearing her hijab (head scarf), show employees forced her to leave her front row seat and sit in the back. She says she was also prohibited from asking a question during the show.

The New York Post (May 25) reports that Mollie Fermaglich, a New York University faculty member, has sued claiming that after 20 years at NYU and a successful television career, she has been repeatedly passed over for promotion in favor of younger, male, non-Jewish faculty.  She says that when she protested working on Passover, a colleague asked her: "Just how Jewish are you?" NYU says there is no basis for her claims.

Recent Prisoner Free Exercise Cases

In  Sutton v. City of Philadelphia, 2014 U.S. Dist. LEXIS 70242 (ED PA, May 21, 2014). a Pennsylvania federal district court, while dismissing a Muslim inmate's complaint that he was sometimes not served his vegetarian meals, allowed him to move to trial on his claim that the food service company maintained a discriminatory religious alternative meal system that provided kosher meals that sometimes included meat, but only vegetarian halal meals.

In Covington v. Mountries, 2014 U.S. Dist. LEXIS 69204 (SD NY, May 20, 2014), a New York federal district court concluded that a Muslim inmate had adequately pled that a lock down which prevented him from attending weekly Jumu'ah services substantially burdened his religious exercise, but failed to allege defendant's involvement. The court gave plaintiff 45 days to amend his complaint.

In Gilmore v. Augustus, 2014 U.S. Dist. LEXIS 69296 (ED CA, May 19, 2014), a California federal magistrate judge refused to allow a Muslim inmate to amend his complaint to allege that he was unable to fully enjoy his religious worship because of pain and suffering from excessive force used against him by a correctional officer.

In Shehee v. Anlin, 2014 U.S. Dist. LEXIS 69290 (ED CA, May 19, 2014), a California federal magistrate judge dismissed with leave to amend a civil detainee's complaint that while he was granted a religious vegan diet, often servers ran out of food that met his dietary requirements.

In Price v. White, 2014 U.S. Dist. LEXIS 70133 (WD KY, May 21, 2014), a Kentucky federal district court dismissed on qualified immunity and mootness grounds a challenge by a Jewish inmate to grooming standards that required him to cut his hair.

In Leishman v. Patterson, 2014 U.S. Dist. LEXIS 69909 (D UT, May 20, 2014), a Utah federal district court dismissed damage claims by an inmate who was an adherent of Asatru who was not permitted to possess rune tiles made of wood or conduct Blot ceremonies.

In Harris v. Sawyer, 2014 U.S. Dist. LEXIS 70349 (D AZ, May 22, 2014), and Arizona federal district court dismissed with leave to amend an inmate's claim that on two occasions he was not allowed to attend religious services.

In Pressley v. Pennsylvania Department of Corrections, 2014 Pa. Commw. Unpub. LEXIS 308 (PA Commnw. Ct., May 23, 2014), a 3-judge panel of the Pennsylvania Commonwealth court dismissed 1st Amendment but not RLUIPA claims by a Muslim inmate who had requested a kosher diet because prison authorities were not cleaning cookware and serving utensils properly before using them for preparing halal meals.

In Williams v. Madrid, 2014 U.S. Dist. LEXIS 55826 (ED CA, April 21, 2014), a California federal magistrate judge dismissed without prejudice a complaint by an uncommitted civil detainee being held as a sexually violent predator that the Establishment Clause was violated when he was required to participate in the Better Lives Treatment Program.

Pope Visits Holy Land; Presses On Peace Efforts

Pope Francis is on a 3-day visit to the Holy Land, originally described by the Vatican as follows:

The Holy Father will travel to the Holy Land from Saturday, 24 May to Monday, 26 May, to celebrate the 50th anniversary of the historic embrace between Paul VI and Ecumenical Patriarch Athenagoras in Jerusalem on 5 January 1964.

The trip takes the Pope to Jordan, the Palestinian territories and Israel. the Full text of all the Papal addresses during the trip and all Vatican media reports on it are on a special Holy Land Pilgrimage website.

AP reports today that the Pope became heavily involved in encouraging Middle East peace efforts by inviting Palestinian President Mahmoud Abbas and Israeli President Shimon Peres to a summit in the Vatican next month to discuss the peace process. Both presidents have accepted. According to AP:

Peres has been a fervent support of Mideast peace efforts, and the independent-minded Israeli president, whose job is largely ceremonial, risks upsetting Prime Minister Benjamin Netanyahu with the move.