Religion Clause

Thursday, December 17, 2015

Fired Atlanta Fire Chief Can Move Ahead With Retaliation and Religious Freedom Claims

In Cochran v. City of Atlanta, (ND GA, Dec. 16, 2015), a Georgia federal district court allowed the city of Atlanta's former fire chief, Kelvin Cochran-- who was also a deacon at his Baptist church-- to move ahead on many of his claims growing out of his termination after he self-published book which included statements that God intended marriage to exist exclusively between a man and a woman, and that homosexual conduct is immoral. The court allowed Cochran to move ahead against the City of Atlanta on claims for retaliation, viewpoint discrimination, and freedom of expressive association. He was also permitted to move ahead against the city on his overbreadth and prior restraint challenge to a city ordinance requiring approval of the city's Board of Ethics before department heads may provide private services for remuneration. The court found that Mayor Kasim Reed, who was also a defendant, had qualified immunity as to these claims. The court went on to permit plaintiff to proceed against the city and the Mayor on claims of denial of procedural due process, violation of his 1st Amendment free exercise and expressive association rights and of the Article VI ban on religious tests for office. The court dismissed Cochran's Establishment Clause claim, with leave to amend. The court also dismissed his equal protection claims and his claims of vagueness and reputational injury.

Alliance Defending Freedom issued a press release announcing the decision. Washington Times reports on the decision.

Groups Question Walgreen's Project With Catholic Health Care Clinics

On Monday, a group of 19 advocacy organizations sent a letter (full text) to Walgreen Co. questioning the announced plans of Walgreen to partner with a Catholic health care system in opening clinics in 25 Walgreen's drug stores in Washington and Oregon. The letter, signed by groups such as the ACLU, Lambda Legal, NARAL and Planned Parenthood affiliates, said in part:

We appreciate Walgreens’s objective to provide customers with convenient access to basic health services. However, as Providence is a religious health system, we are very concerned that these clinics will limit patients’ access to important health services. Customers or patients who request services at these clinics or at Walgreens’s pharmacies are entitled to assurances that the services, information, and referrals they receive will not be restricted by religious doctrine.

As you are likely aware, Providence is a Catholic health care system that is required to follow the Ethical and Religious Directives (“ERDs”) promulgated by the United States Conference of Catholic Bishops. These directives forbid or severely restrict critical reproductive and end-of-life health care services at Catholic health facilities, including contraception, abortions, fertility treatments, vasectomies, tubal ligations, aid in dying, and advance directives that are contrary to Catholic teachings. Some religious health systems also restrict the information and referrals that their health providers are allowed to give to patients. Adherence to the ERDs also increases the likelihood that LGBTQ individuals and their families will face discrimination in seeking to access health care services consistent with their medical needs.

Think Progress reported on the letter.

Wednesday, December 16, 2015

Supreme Court Stays Alabama Refusal To Recognize Georgia Adoption

On Monday in V.L. v. E.L., (Docket No. 15-648) the U.S. Supreme Court issued a stay of an Alabama Supreme Court decision while it considers whether to grant certiorari in the case. (Order List, 12/14/2015.) At issue is the Alabama Supreme Court's refusal to grant full faith and credit to a 2007 Georgia adoption decision involving a lesbian couple who were living together in Alabama as partners since 1995. As reported by the Washington Post, one of the women, E.L., had three children conceived in 2002 and 2004 through donor insemination. The couple moved briefly to Georgia so that V.L. could obtain parental rights. They then moved back to Alabama. When the couple broke up in 2011, V.L. sought joint custody or visitation rights, but the Alabama Supreme Court refused holding that Georgia had violated its own laws in granting the initial adoption. It held it need not recognize the adoption because the Georgia court lacked subject matter jurisdiction when it granted it.

Le Pen Acquitted On Hate Speech Charges

France 24 reports that Marie Le Pen, leader of France's far right National Front Party had hate speech charges against her dropped yesterday. Le Pen was charged with "inciting discrimination, violence or hatred toward a group of people based on their religious beliefs" for the comments, which she made at a campaign rally in 2010. The local prosecutor though asked for charges to be dropped because her comments "did not target all of the Muslim community." At issue were Le Pen's remarks calling street prayers by Muslims in three French cities an "occupation of territory." The presiding judge said that Le Pen's comments, while shocking, were protected as freedom of expression-- a position supported by the French State Prosecutor. (See prior posting.)

Trial Court Rules In Factional Dispute In California Church

In a long-running case on remand from a California appellate court (see prior posting), a Los Angeles trial court judge yesterday entered a final judgment giving possession of the church and a commercial building it owns to one of the two competing factions in the St. Mary of the Angels Church in Los Feliz, California. The Los Feliz Register reports that the court ruled in favor of Father Christopher Kelley and his followers. An earlier Los Feliz Register report provided background:

Father Christopher Kelley—the rector from 2007 until his firing in 2012—and his supporters took sanctuary in the basement and celebrated mass, while the anti-Kelley faction used the church’s regular first floor offices and held mass in its tiny, but lovely chancel.

After three years and reams of legal documents filed by both sides with allegations hurled both ways, if you attended a mass today at weary St. Mary’s, you would be among only a dozen or so parishioners left from its once healthy congregation.

The dispute was complicated by the vote of the congregation's parishioners in 2012 to end affiliation with the Anglican Church and join the Catholic Church. The losing faction in yesterday's decision said an appeal will be filed.

Cincinnati Enacts Conversion Therapy Ban

Last Wednesday, Cincinnati, Ohio followed four states and the District of Columbia in passing a ban on providing conversion therapy aimed at changing the sexual orientation of young people who are gay or lesbian. Cincinnati Enquirer reports that the new law imposes a $200 per day fine on violators. City Council passed the ordinance by a vote of 7-2 in the wake of the suicide death a year ago of a transgender teen who cited the conversion therapy she had been subjected to in her suicide note. During the comment period on the proposed ordinance, 21 people spoke against the bill on religious and free speech grounds. One Baptist clergyman said: "This Council will create another another type of bondage for something people themselves have a right to seek liberty from."

Convicted Rabbi In "Coerced Get" Case Sentenced To 10 Years

In April, three defendants were convicted in federal district court in New Jersey on charges growing out of arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.) Yesterday the most prominent of those defendants, 70-year old Rabbi Mendel Epstein, was sentenced to ten years in prison for conspiracy to commit kidnapping. A second defendant, Rabbi Binyamin Stimler, was sentenced to 39 months. As reported by AP, Rabbi Epstein told the sentencing judge: "Over the years, I guess, I got caught up in my tough-guy image. Truthfully, it helped me — the reputation — convince many of these reprobates to do the right thing."

Suit Seeks To Enjoin Enforcement of Noise Law Against Church

As reported by the New Orleans Advocate and a Liberty Institute press release , a lawsuit was filed last Thursday on behalf of Vintage Church in Metairie, Louisiana seeking a temporary restraining order to prevent enforcement of the Jefferson Parish Noise Ordinance against the church. The suit claims that enforcement violates the church's rights under the Louisiana Preservation of Religious Freedom Act. The church is meeting on Sundays in an outdoor tent while one of its buildings is undergoing expansion. After neighbors-- one in particular-- complained that the services were too loud, enforcement authorities monitored sound levels and issued two criminal summons to the executive pastor. The lawsuit charges that it is discriminatory to limit the church's services to 60 decibels while allowing louder noise from power tools, lawn mowers and demolition activities.

UPDATE: The New Orleans Times-Picayune reports that on Dec. 22, the trial court denied the church's request for injunctive relief.

Cosmetologist Sues After Company Insists That In Training Class He Wear Women's Cosmetics

The Detroit Free Press reported yesterday on an unusual Title VII religious accommodation lawsuit filed Monday in a Michigan federal district court. Barry Jones is an ordained elder in the Church of God in Christ where he has been preaching for 19 years. He is also trained in cosmetology and licensed by the Michigan Department of Licensing as an esthetician. In 2014 he took a position with an M.A.C. Cosmetics store in a now-closed Detroit area mall and began its training to become a full-time makeup artist. As part of the training the company insisted that students apply makeup to each other, including blush, eye-shadow, lipstick and false eyelashes, so that they would know how those products feel when they apply them to customers. Jones refused on religious grounds, quoting Deuteronomy 22:5 that prohibits a man from wearing women's clothing. He said that doing anything that makes him look like a woman would undermine his integrity as a preacher. The company demoted Jones to be a freelance makeup artist, and he could not find work. After obtaining a right to sue letter from the EEOC, Jones filed suit.

Tuesday, December 15, 2015

NYC Municipal Judge Sworn In On Qur'an

Geo TV and ABNA report that last Thursday in New York City, a Muslim woman, Carolyn Walker-Diallo, was sworn in as a civil court judge of the 7th Municipal District in Brooklyn, using a Qur'an instead of a Bible for the ceremony. Walker-Diallo who has been active in local politics and community development, wore a headscarf during the ceremony. Coming at a time of heightened anti-Muslim rhetoric from some quarters in the U.S., social media reaction to the swearing-in was mixed.

Jonathan Pollard Claims Parole Conditions Violate His Rights Under RFRA

Convicted Israeli spy Jonathan Pollard who recently completed a 30-year federal prison term is now seeking to have a New York federal district judge ease three of the conditions imposed as part of his additional one-year of parole. As reported by today's Jerusalem Post, Pollard objects to required monitoring of his home and work computers; tracking of his location by an electronic GPS ankle bracelet; and a 7 am to 7 pm curfew. Part of Pollard's argument is that the ankle bracelet and curfew violate his rights under the Religious Freedom Restoration Act. The monitoring anklet's batteries will not last 25-hours, and thus Pollard will be required to charge the battery during the Sabbath, a violation of Jewish religious law. Also the curfew interferes with his ability to attend synagogue services. The U.S. Attorney's Office concedes that it can accommodate Pollard's concerns with the ankle bracelet by providing one with longer battery life. The court ordered the parole commission to furnish further information, in particular whether it believes Pollard has information that is still confidential.

Magistrate Holds Plaintiffs Lack Standing To Challenge Montana's Polygamy Ban

In Collier v. Fox, (D MT, Dec. 8, 2015), a Montana federal magistrate judge recommended dismissing a lawsuit asserting a pre-enforcement challenge to the state's bigamy statutes. The suit was filed after a county clerk refused to issue a marriage license for Christine Collier Parkinson to legally marry Nathan Collier who is already legally married to Victoria Collier. In the letter denying the license, the county clerk told the applicants that obtaining a second marriage license would be considered bigamy. However the letter did not explicitly threaten prosecution. The court concluded that plaintiffs lack standing to bring the challenge because they have not been threatened with prosecution. Plaintiffs say that the state might use its common law marriage statute to claim that the plaintiffs are already in violation. The court said, however, that there is no history of prosecution of polygamists under this theory. Life Site News reports on the decision.

Suit Says Faculty Applicant Was Blindsided By Religious Affiliation Requirement

AP reported yesterday on a lawsuit filed in state court in Portland, Oregon by a Jewish man who was ultimately not hired as an adjunct professor of psychology at the Christian-based Warner Pacific College. While Oregon law allows a religious institution to hire on the basis of religion, applicant Noel M. King says that the school's job posting only said that applicants had to agree to respect Christ-centered values and Christian faith. It did not say they had to be members of the Christian faith. King says he went through a 4-month application process, three interviews and a teaching demonstration, and was recommended by the hiring committee who knew he was Jewish, before the school's president vetoed his hiring because of his religious affiliation. He asks for $268,000 in damages, claiming that he missed out on applying for other jobs while Warner Pacific strung him along.

Confirmation of Tax Division Chief Delayed Over Past Position On ADF's Pulpit Initiative

The Chicago Tribune last week reported that President Obama's nomination of Cono Namorato to be Assistant Attorney General for the Tax Division of the Department of Justice, is being held up in the Senate Judiciary Committee because of the position he took in the past on church involvement in partisan political activity. In 2008, while a lawyer at the Washington firm of Kaplan & Drysdale, Namorato along with two other attorneys wrote the Internal Revenue Service's Office of Professional Responsibility complaining about the Pulpit Initiative being promoted by Alliance Defense Fund (now known as Alliance Defending Freedom). The letter urged an investigation of ADF's lawyers for "explicitly soliciting churches across America to violate Federal law" that bars partisan political participation by tax-exempt organizations.

Monday, December 14, 2015

Army Grants Accommodation For Sikh Combat Soldier To Wear Beard

According to a New York Times report yesterday, the U.S. military for the first time has granted a Sikh combat soldier a religious accommodation to allow him to grow a beard and serve with uncut hair under his turban. Captain Simratpal Singh, a West Point graduate and Bronze Star winner who led a platoon of combat engineers in clearing roadside bombs in Afghanistan, previously reluctantly shed his beard and long hair. But recently while on leave he stopped shaving. Now the Army has granted him (with certain conditions) a one-month temporary exemption (full text of Army memo) while it considers whether to make the accommodation permanent. Since 2009, three other Sikhs, two Muslims and a Jewish rabbi have been granted religious accommodations to wear beards, but none of them were in combat units. They were either chaplains or specialized medical personnel. Some believe that Capt. Singh's case could serve as precedent for other Sikhs, Muslims and others who wish to adhere to their religious traditions while in the Army.

British Court of Appeals Says Muslim Prison Chaplains Did Not Suffer Pay Discrimination

In Naeem v The Secretary of State for Justice, (EWCA, Dec. 9, 2015) , the England and Wales Court of Appeal held that discrimination was not the cause of the average pay of Muslim prison chaplains in British prisons being lower on average than that of Christian chaplains. Instead it was caused by the fact that the Prison Service only began employing Muslim chaplains in 2002. Before that there were not enough Muslim prisoners to call for employing full-time Muslim chaplains. Thus the average length of service for Muslim chaplains is less than for Christian chaplains. Chaplains get pay raises based on length of service.

Petitioners, who originally brought their cases before an Employment Tribunal, argued that they were the victims of "indirect discrimination"-- which is defined in British law as a practice that operates with a disparate impact on a protected class. The appeals court, relying on earlier precedent, held: "an employer can rebut a claim of indirect discrimination by showing that an apparent disparate impact is the result of non-discriminatory factors." Law & Religion UK reports further on the decision.

Sunday, December 13, 2015

Recent Prisoner Free Exercise Cases

In Milum v. State, 2015 Tex. App. LEXIS 12571 (TX App., Dec. 10, 2015), a Texas state appeals court rejected a claim by a defendant in a child sexual assault case that he had ineffective assistance of counsel when his lawyer failed to object to a condition of community supervision that allowed him to enter a church, synagogue or other house of worship only to attend a public service.

In Hughes v. Godinez, 2015 U.S. Dist. LEXIS 165938 (ND IL, Dec. 11, 2015), an Illinois federal district court allowed an inmate to proceed against prison officials on his claim that restrictions on religious exercise imposed while he was in segregated housing for possessing contraband violated his free exercise rights. While in segregated housing, he was not permitted to attend religious services in person or visit with clergy, and was allowed to view only one denomination's services on closed circuit television.

In Alderson v. Kelley, 2015 U.S. Dist. LEXIS 166272 (ED AR, Dec. 11, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 166274, Nov. 17, 2015) and allowed an inmate to move ahead on his complaint that the prison warden is not properly implementing the Department of Corrections grooming policy that allows a prisoner to wear a beard where required by the inmate's sincerely held religious belief.

In Isaac v. Pruette, 2015 U.S. Dist. LEXIS 166432 (ED VA, Dec. 10, 2015), a Virginia federal district court dismissed a Muslim inmate's complaint that he was initially not added to the list for attending Jummah services, that two Jummah services were canceled, and that he was not furnished a religious diet.

Gambia's President Declares It an Islamic State

On Friday, the President of the West African nation of Gambia proclaimed the largely Muslim country to be an Islamic state. According to Al Jazeera, Gambia's President Yahya Jammeh said that his country "cannot afford to continue the colonial legacy." However Jammeh pledged to protect the rights of Gambia's Christian community-- about 8% of its population, and said there will be no mandates as to dress. Opposition politicians say that the Constitution provides that Gambia is a secular state. Some commentators suggest that Jammeh's move is an attempt to create closer relations with the Arab world after losing Western support because of the country's dismal human rights record and rampant corruption.

Group Encourages Conservative Christian Pastors To Run For Public Office

Reuters on Friday reported on new efforts to motivate conservative Christian pastors to run for local public office in the U.S. The article focuses on "a tactical shift" in the "Christian far right":

Aiming to motivate conservative Christians, they are focusing on smaller political races, local ballot initiatives and community voter registration drives.

At the center of the effort is the American Renewal Project, an umbrella group that says it has a network of 100,000 pastors. It is headed by evangelical Republican political operative David Lane, who wants to recruit 1,000 pastors to run for elected office in 2016.

So far, roughly 500 have committed to running, Lane told Reuters.