Religion Clause

Monday, June 23, 2014

Malaysia's Top Court Denies Leave To Appeal Ban On Catholic Paper's Use of "Allah"

AstroAwani , MSN News and AlJazeera all report on today's decision by Malaysia's highest court to refuse leave to appeal in a widely followed religious freedom case. By a vote of 4-3, Malaysia's Federal Court denied an application by the Catholic Church for leave to appeal a Court of Appeals decision that barred the Catholic newspaper, The Herald, from using the term "Allah" in its Malay language edition to refer to God. (See prior posting.) "Allah" has been widely used by Christians in Sabah and Sarawak to refer to God. However the government argues that its use in non-Muslim literature may confuse Muslims and lead them to convert.

Australia's Top Court Invalidates Federal Spending For School Chaplaincy Programs

In Williams v. Commonwealth of Australia, (High Ct. of Australia, June 19, 2014), Australia's highest court held that Australia's Parliament exceeded the powers given to the national government when it provided funds for chaplaincy services in public schools run by the states. The suit was brought by an atheist parent who objected to his son learning gospel songs in school. AP reports on the decision, suggesting that the chaplaincy program could be constitutionally funded by providing grants to the states for the program. It quotes Sydney University constitutional lawyer Anne Twomey:

They could have always done this stuff through the states under grants; they chose to do these things by direct methods and one of the reasons they did that in the past was to get directly the political kudos that come from it.... The chaplaincy program was all about getting direct political support from religious lobby groups....

A Court press release also summarizes the decision. [Thanks to Scott Mange for the lead.]

Sunday, June 22, 2014

Mormon Church Sues Canadian Sect Leader Over Name Misappropriation

The Vancouver Sun and Reuters reported last week that the Church of Jesus Christ of Latter Day Saints (the mainline Mormon Church) has filed suit against Winston Blackmore, leader of a polygamous Mormon sect headquartered in Bountiful, British Columbia for misappropriation of the trademarked name, identity and reputation of the mainline Church. Blackmore, who headed the Canadian branch of the FLDS until he was excommunicated by leader Warren Jeffs, founded his own sect with followers comprised mostly of his extended family in British Columbia, Idaho, Utah and Arizona, and initially incorporated it as the Fundamentalist Church of Jesus Christ of Latter Day Saints. However he changed it in 2010 to eliminate the word "Fundamentalist." The mainline church discovered this in January when, after changing the form of its Canadian branch from an Alberta trust to a corporation, it tried to register its name in British Columbia and had its application rejected. Its filings in the B.C. Supreme Court indicate that the confusion has led to diversion of contributions intended for the mainline Church.

Recent Prisoner Free Exercise Cases

In Abdul-Aziz v. Ricci, (3d Cir, June 16, 2014), the 3rd Circuit affirmed the dismissal of a Muslim inmate's complaint that Muslim inmates were served vegetarian meals while donated meals with Halal meat were refused, and that he was not permitted to have prayer oil in his cell. Dismissal of his complaints of retaliation were also affirmed.

In Cotton v. Cate, (9th Cir., June 16, 2014), the 9th Circuit reversed the dismissal of a Shetaut Neter inmate's RLUIPA claim for a Kemetic diet, holding that the government had not adequately shown there was not a less restrictive alternative to denying plaintiff's food request.

In Ali v. Wingert, (10th Cir., June 19, 2014), the 10th Circuit affirmed the dismissal of a Muslim inmate's complaint that he had problems with his mail being processed when it contained only his religious name without also including his committed name.

In Stigler-El v. Stilwell, 2014 U.S. Dist. LEXIS 79939 (SD IN, June 11, 2014), an Indiana federal district court dismissed an inmate's claim of discrimination against his Moorish precepts of Islamism, but with leave to show why judgment should not issue.

In Alexander v. Michigan, 2014 U.S. Dist. LEXIS 79271 (WD MI, June 11, 2014), a Michigan federal district court, although dismissing a number of defendants on immunity grounds, permitted an inmate to proceed against the warden, the chaplain and the state on his complaint that authorities refused to recognize separately and accommodate the practices of the Ismaili branch of the Moorish Science Temple.

In Oram v. Linderman, 2014 U.S. Dist. LEXIS 78836 (D AZ, June 9, 2014),an Arizona federal district court dismissed complaints of an inmate who is a gentile practitioner of Torah Observant Messianic Judaism that weekly religious services are limited to 60 minutes (instead of the 3 hours he requested) and that there are limits on the size of prayer shawls.

In West v. Grams, 2014 U.S. Dist. LEXIS 82030 (WD WI, June 16, 2014), a Wisconsin federal magistrate judge amended his former order that improperly dismissed a Muslim inmate's RLUIPA claim for injunctive relief on qualified immunity grounds, and instead dismissed it on mootness grounds because plaintiff has been transferred to a new prison. The underlying claim related to availability of religious services and alleged retaliation.

In Desmond v. Phelps, 2014 U.S. Dist. LEXIS 81874 (D DE, June 16, 2014), a Delaware federal district court denied a motion for injunctive relief by inmates who claimed discrimination against Catholics in access to religious services, religious leaders and accommodation of various religious practices after certain Catholic volunteers were banned from the facility.

In Evans v. Godinez, 2014 IL App (4th) 130686-U (IL App., June 18, 2014), an Illinois state appellate court upheld a prison's refusal to provide study groups and prayer services for Nation of Islam inmates.

NYT Details Plight of Christian Convert In Afghanistan

The New York Times yesterday reported at length on the plight in Afghanistan of a Muslim convert to Christianity (identified only as "Josef") who is in hiding as his brother-in-law and uncles are seeking to find him and kill him for apostasy. More generally, according to the report:

In official eyes here, there are no Afghan Christians. The few Afghans who practice the faith do so in private for fear of persecution, attending one of a handful of underground churches that are believed to be operating in the country. Expatriates use chapels on embassy grounds, but those are effectively inaccessible to Afghans.

Only a few Afghan converts have surfaced in the past decade, and the government has typically dealt with them swiftly and silently: They are asked to recant, and if they refuse, they are expelled, usually to India, where an Afghan church flourishes in New Delhi....

That leaves Josef almost nowhere to turn for protection. The police would be no help. Converts report being beaten and sexually abused while in custody.

Split Developing In Ukrainian Greek Catholic Church

The New York Times posted an article yesterday titled Ukrainian Church Faces Obscure Pro-Russia Revolt in Its Own Ranks, detailing an "obscure pro-Moscow revolt" faced by the Ukrainian Greek Catholic Church from some of its own clergy. While the Ukrainian Orthodox Church has already split between its Kyvian and Moscow Patriarchates, now the previously unified Ukrainian Greek Catholic Church faces a possible split:

As with other fundamentalist groups that have split from long-established churches..., the breakaway Ukrainian outfit is obsessed with homosexuality and with preventing any tolerance of what it views as a grave sin. But theological issues, its critics say, mask a geopolitical agenda that puts it firmly on the side of Russia in opposition to Ukraine’s drawing closer to the Europe.

Christian College Wins Preliminary Injunction Against ACA Contraceptive Coverage Mandate

In Colorado Christian University v. Sebelius, (D CO, June 20, 2014), a Colorado federal district court granted a preliminary injunction preventing enforcement against a Christian liberal arts university of the Affordable Care Act contraception coverage mandate compromise as it applies to coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg. The court concluded that completion of the exemption form that results in coverage directly by the health plan's third-party administrator imposes a substantial burden on the school's religious exercise. The court said in part:

Any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via the Exemption Form from CCU to the TPA or another entity. Such legal legerdemain does not expiate the morally unacceptable means or end. Such a compelled concession by an ostensibly innocuous legal prophylactic does not ameliorate the ignominy of the moral obliquity created by the participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. It is the offer that is morally offensive regardless of the extent of its acceptance.

Becket Fund issued a press release announcing the decision.

Saturday, June 21, 2014

Republican Politicians Address Evangelical Christian Conference

Today was the final day of the 3-day Faith and Freedom Coalition 2014 Conference in Washington D.C.. According to Huffington Post, the conference was attended by over 1000 Christian evangelical leaders who were addressed by major Republican leaders. Videos of the remarks of a number of the speakers are available: Luncheon Speakers (Senators Mike Lee (R-UT), Marco Rubio (R-FL) and Ted Cruz (R-TX)); Representative Kevin McCarthy (R-CA); Representative Tom Price (R-GA); Representative Louie Gohmert (R-TX); Senator Mitch McConnell (R-KY); Representative Steve King (R-IA); Senator Rand Paul (R-KY); Ralph Reed ; Rick Santorum; Michele Bachman (R-MN); Governor Chris Christie (R-NJ) ; Herman Cain.

Friday, June 20, 2014

Court In India Says State Government Must Enforce Ritual Decision of Temple Managing Committee

In Bhabani PR. Mishra v State, (Orissa High Ct., June 20, 2014), the High Court of the Indian state of Orissa held that the state government must abide by the decision of the Managing Committee of the Jagnnath Temple in maintaining law and order during Rath Yatra (Car Festival). The Temple Managing Committee made a controversial decision that devotees are not permitted to climb on top of the chariots that carry the deities to the Shri Gundicha Temple. According to the Business Standard, the state government had found itself in the middle of a dispute between priests who wanted the tradition of devotees climbing on the chariots to continue, and the Managing Committee that wanted the tradition ended in conformity with the opinion of HH Shankaracharya, Puri. The state government had appointed a high level committee to resolve the dispute, but now the state law minister says that the government will merely abide by the decision of the High Court.

UN Committee Concerned Over Child Trafficking For Religious Rituals In Britain

As reported by AFP, the United Nations Committee on the Rights of the Child yesterday released its observations on the report of Great Britain relating to child trafficking. (Full text of UN document), Among other things, the U.N. committee expressed particular concern about trafficking of children for use in religious rituals:

The Committee is strongly concerned that thousands of children continue to be trafficked every year in the State party, particularly for sexual exploitation and labour, and it expresses its deepest concern about reports that hundreds of children have been abducted from their families in Africa and trafficked to the State party for brutal religious rituals, such as the so-called voodoo and juju rituals.

Break-Away Presbyterian Congregation Sues To Retain Property Ownership

The Milwaukee Journal-Sentinel reported yesterday that the Sheboygan County, Wisconsin First Church of Oostburg has filed a state court lawsuit against the Presbyterian Church USA in a bid to retain ownership of congregational property in the wake of its vote last week to disaffiliate from the Presbyterian Church USA and join the more conservative Covenant Order of Evangelical Presbyterians. The Church of Oostburg's vote to disaffiliate came just days ahead of the decision at the Presbyterian General Assembly to allow clergy to officiate at same-sex marriage ceremonies and to redefine marriage as a covenant between "two people". The Presbyterian Church wants the Oostburg congregation to pay $500,000 in order to keep the property.

Pennsylvania Federal Court Denies Intervention To Appeal Same-Sex Marriage Case

As previously reported, in May a Pennsylvania federal district court held Pennsylvania's laws banning same-sex marriage to be unconstitutional, and Pennsylvania Governor Tom Corbett announced that the state will not appeal the decision. Some two weeks later, Theresa Santai-Gaffney, clerk of courts in Schuylkill County moved to intervene in order to appeal the court's decision to the 3rd Circuit. In Whitewood v. Wolf, (MD PA, June 18, 2014), the federal district court rejected the motion to intervene. The court held that Santai-Gafney has not met the criteria for either intervention as of right or permissive intervention. The court said:

At bottom, we have before us a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.

AP reports on the decision.

Thursday, June 19, 2014

Convictions of Anti-Gay Pride Protesters Reversed

In Faust v. State of Texas, (TX Ct. App., June 12, 2014), a Texas state appeals court reversed the convictions of two members of the Kingdom Baptist Church who were charged with interference with public duties. The convictions grew out of the church members' attempt at a gay pride parade to cross a police line formed to keep a distance between KBC protesters and the parade. The court said in part:

The skirmish line at issue here was not narrowly tailored to serve the government’s interest in public safety. All members of the church were barred from proceeding down the street regardless of whether they had previously assaulted parade-goers or not, whether they were yelling profanity or threatening words or not, or whether they were even protesting at all. Although there was evidence that the police department had received complaints about the church’s “street preaching” many times in the past, the only evidence the church had ever reached beyond the boundaries of protected speech was that one of their members, Chad Sutherland, had assaulted a parade participant at the 2011 parade. There was no evidence that Sutherland was with the church members at the 2012 parade, that any of the members present at the 2012 parade were involved with the 2011 assault, or that any of the members present were threatening any parade-goers with imminent physical injury. ....

The skirmish line prohibited all members of the church from exercising their right of free speech merely because of their association with the church. This is far too broad a limitation.... Although we do not believe that the police were required to wait until violence erupted before they stepped in, we do believe there must have been some indication that the public’s safety was at risk beyond the history of one assault by a member of the organization who may not even have been present at the time the skirmish line was in place..... Because the skirmish line was not narrowly tailored, it was an unconstitutional infringement upon Appellants’ right of free speech.

Christian News reports on the decision.

Student Religious Liberty Bills Await Governors' Signatures In Missouri, North Carolina

This week the North Carolina General Assembly gave its final approval, and sent to the governor for his signature, Senate Bill 370, protecting students' rights to engage in prayer and religious expression in public schools. It allows students to express religious viewpoints to other students to the same extent that students can express non-religious viewpoints, and to express religious viewpoints in classwork and homework without discrimination. It also requires student religious groups to be treated the same as non-religious groups. However students may not harass or coerce other students. The bill also sets out grievance procedures for students or parents who believe a student's religious expression rights have been infringed.

Similarly, the Missouri General Assembly passed and on May 30 sent to the governor for his signature H.B. 1303 protecting student religious liberty. It requires public schools to treat student expression of religious viewpoints in the same manner that they treat expressions of other viewpoints, and protects expressions of religious viewpoints in school work and on clothing worn to school. It gives student religious groups the same rights as non-religious groups. [Thanks to Blog From the Capital for the leads.]

Court Allows Eruv In Long Island Town

In Verizon New York, Inc. v. Village of Westhampton Beach, (ED NY, June 16, 2014), a New York federal magistrate judge gave at least a partial victory to the East End Eruv Association, a Jewish organization that is attempting to place an eruv in Suffolk County, New York. An eruv is a symbolic boundary, marked off with plastic strips (lechis) on telephone poles. Observant Jews may carry items within the eruv on the Sabbath without violating Jewish religious law. In this case, Verizon and Long Island Lighting Co. granted the Association the right to use their poles for an eruv, but three municipalities objected. The utilities sued for a declaration that they had the right to allow use of their poles for this purpose. This opinion ultimately dealt with only one of the municipalities-- Westhampton Beach. The court concluded that the utilities' franchise agreements do not limit their authority permit the eruv; the Transportation Corporations Law and the LIPA Act provide authority for the utilities to enter contracts for use of their poles; while Westhampton has authority to regulate utility poles owned by the utilities, it has not passed any regulations that prohibit attaching lechis to the poles. 27East and Jewish Week report on the decision.

Court Upholds Pennsylvania's Sunday Hunting Ban

In Hunters United For Sunday Hunting v. Pennsylvania Game Commission, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected constitutional challenges by a hunters' group to Pennsylvania's ban on Sunday hunting for fur bearing animals or game. Plaintiffs had asserted that the ban violates the 2nd Amendment, the 14th Amendment's equal protection clause, and the First Amendment's religion clauses. Rejecting plaintiff's establishment clause claim, the court said in part:

The Court cannot divine Plaintiffs’ injury-in-fact from their allegation that “Defendants [sic] enforcement and prohibition on Sunday hunting no longer has a secular basis but instead a religious basis.”

The court also pointed to Supreme Court precedent upholding Sunday closing laws. AP reports on the decision. (See prior related posting.)

Wednesday, June 18, 2014

$108M Damages In Faith-Healing Death Upheld

In Mansfield v. Horner, (MO App., June 17, 2014), a Missouri state appellate court upheld a wrongful death judgment of over $108 million in the faith-healing death of Misty Mansfield growing out of complications after the stillbirth of her child. The suit was brought by Misty's parents against her husband Caleb Horner and Caleb's brother, John, who was the leader of the faith-healing sect to which Caleb and Misty belonged. The sect, which Misty joined only when she married Caleb, also required a wife to be submissive to their husband's decisions. Caleb convinced Misty not to go to the hospital when complications arose during her labor at home, and the breech delivery was botched by Caleb and his religious-based birth team. Caleb's brother John arrived after the stillbirth and prayed for hours attempting to raise the child from the dead, while Misty was not treated for her vaginal cuts and an emergency team that arrived 9 hours later was denied access to Misty by Caleb. A month after the delivery, Misty died from an ongoing infection.

The appeals court rejected nine objections to the trial court's refusal to override the jury's verdict, including an objection that the suit violates the First Amendment's free exercise clause. Rejecting that argument, the court said in part:

None of [the jury] instructions required the jury to determine the validity of the Horners' belief in faith healing. The jury never had to determine "the truth or falsity" of faith healing. Instead, the instructions required the jury to determine whether or not the Horners' actions -- particularly with respect to Caleb's actions during the home birth and John and Caleb's actions preventing Misty from seeking medical treatment following the home birth -- constituted negligence. Thus, we do not conclude that the trial court committed plain error in overruling the Horners' motion for JNOV with respect to their claim of a First Amendment violation.

District Court Upholds ACA Non-Profit Contraceptive Mandate Rules

In Eternal Word Television Network v. Burwell, (SD AL, June 17, 2014), an Alabama federal district court granted summary judgment to Department of Health and Human Services, rejecting a Catholic media network's challenges to the rules accommodating religious non-profits' objections to the Affordable Care Act contraceptive coverage mandate. Rejecting EWTN's "substantial burden" argument under the Religious Freedom Restoration Act, the court said in part:

Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places that burden on someone else after EWTN opts out. Because EWTN’s only religious objection to the mandate hinges upon the effect it will have on other parties after EWTN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court finds that the mandate does not impose a substantial burden on EWTN’s religious practice within the meaning of RFRA. As a result, EWTN’s RFRA claim fails as a matter of law.

The court also rejected EWTN's free exercise, establishment clause and compelled speech claims. It concluded that the mandate is a neutral law of general applicability, and that "the accommodation’s certification requirement does not compel EWTN to express any opinions or beliefs that it does not hold."

In a press release reacting to the decision, EWTN said it would file an immediate appeal to the 11th Circuit.

Utah Supreme Court Refuses To Set Aside Default Judgment In FLDS Land Case

In Wisan v. City of Hildale, (UT Sup. Ct., June 17, 2014), the Utah Supreme Court, in the latest decision in the long running litigation over the Fundamentalist Church of Latter Day Saints United Effort Plan Trust, refused on procedural grounds to set aside a default judgment that had been entered against Hildale, Utah and the Twin City Water Authority. The default judgment came in an attempt by the court-appointed trustee to subdivide the trust land in order to facilitate distribution of separate parcels that did not carry liability for neighbors' tax delinquencies. The court held that the grounds asserted by defendants are not ones that can be raised in a direct appeal of a trial court's refusal to set aside a default judgment.