Religion Clause

Tuesday, December 22, 2015

Fired Pastor and His Followers Lose Suit To Reclaim Their Former Church Building

In St. Mark Baptist Church of Pittsburg v. Saint Mark at Bethel Missionary Baptist Church, (CA App., Dec. 18, 2015), a California state appellate court upheld a trial court's decision in a dispute over control of church property. Two Baptist churches merged, but the arrangement went sour after two years. Under the merger agreement, Pastor McNab from St. Mark Pittsburg was to be the pastor of the merged church, but the church was to meet in the building used by St. Mark at Bethel. When trustees of the merged church voted to terminate Pastor McNab, he and some of his followers left the church and attempted to return to their original building which had by now been rented out to an unrelated church. They sued seeking a ruling that they, not the merged church, still owned their original building. In this decision, the Court of Appeals upheld the trial court's denial of a preliminary injunction to prevent sale of the St. Mark Pittsburg church building by the merged church, and also upheld the trial court's removal of a lis pendis notice-- a notice that litigation impacting the property was pending. It held that there was substantial evidence that McNab and his current followers were not the rightful leaders of St. Mark Pittsburg even if it continues to exist as a separate entity.

Monday, December 21, 2015

Slovenia Rejects Same-Sex Marriage In Referendum

In a referendum in the central European nation of Slovenia yesterday, voters by a margin of 63% to 37% rejected same-sex marriage. Politco reports that the overall voter turnout for the referendum was only 35.6%. This defeat of a bill passed by Parliament last March returns the country to its old rules that allow civil partnership but not adoption of children by same-sex couples. [Thanks to Paul de Mello for the lead.]

2016 Appropriations Act Includes Focus On International Religious Liberty

The massive Consolidated Appropriations Act, 2016 signed into law by President Obama last week includes a number of provisions specifically relating to international religious freedom. These provision in Section 7033 (at pg. 519 of the bill) are of particular interest:

(c) INTERNATIONAL BROADCASTING.—Funds appropriated by this Act under the heading ‘‘Broadcasting Board of Governors, International Broadcasting Operations’’ shall be made available for programs related to international religious freedom, including reporting on the condition of vulnerable and persecuted religious groups.

(d) ATROCITIES PREVENTION.—Not later than 90 days after enactment of this Act, the Secretary of State, after consultation with the heads of other United States Government agencies represented on the Atrocities Prevention Board (APB) and representatives of human rights organizations, as appropriate, shall submit to the appropriate congressional committees an evaluation of the persecution of, including attacks against, Christians and people of other religions in the Middle East by violent Islamic extremists and the Muslim Rohingya people in Burma by violent Buddhist extremists, including whether either situation constitutes mass atrocities or genocide (as defined in section 1091 of title 18, United States Code), and a detailed description of any proposed atrocities prevention response recommended by the APB: Provided, That such evaluation and response may include a classified annex, if necessary.

(e) DESIGNATION OF NON-STATE ACTORS.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1)), review and identify any non-state actors in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.

Suit Against Jewish Conversion Therapy Group Ends With Permanent Injunction and Settlement Instead of Appeal

As previously reported, in June a New Jersey state trial court jury awarded treble damages of $72,400 to a total of five plaintiffs who sued JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor under the state's consumer fraud law. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight. Instead of appealing the decision, defendants entered a confidential settlement agreement (Stipulation) under which defendants are to pay an undisclosed amount of damages and attorneys' fees of $3500. In addition the parties agreed to the award of a permanent injunction requiring JONAH to cease operations and liquidate. The Court issued a consent Order on Dec. 18 (full text) implementing this agreement, including permanently enjoining defendants from offering any kind of conversion therapy in the future. CBS News reports on these developments and points out that New Jersey's 2013 law banning licensed therapists from offering sexual orientation change therapy for minors was not involved in the case because the defendants were not licensed therapists. An attorney who represented JONAH said:

It is sad that so many are celebrating the government's power to stop willing clients from working with willing counselors to lead their lives on Biblical principles.

Attorneys for plaintiffs responded, however:

The practice of conversion therapy, at base, constitutes fraud. It is premised on the lie that homosexuality is a disease or disorder. This case proved it to be a lie.

Southern Poverty Law Center's case page has links to all the pleadings and court orders in the case.

New York City Will Reimburse Private Religious Schools For Security Guards

The Forward last week reported that New York's City Council earlier this month passed legislation to reimburse all nonpublic schools with 300 or more students for unarmed security guards they hire. The number of guards tor which they will be entitled to reimbursement depends on the size of the school. Guards must be hired from a list of firms approved by the city, and they must be paid a prevailing wage. This is part of a growing list of non-religious items for which religiously affiliated private schools can obtain government funds. The City will spend up to $19.8 million on the guards in the first year of the program.

Sunday, December 20, 2015

U.N. Recognizes Yom Kippur As Holiday

According to the Times of Israel, the United Nations announced on Thursday that it was adding the Jewish holiday of Yom Kippur to the list of officially recognized U.N. holidays on which no official meetings will be scheduled and staff will not be required to report to work. The U.N. already observes Christmas, Good Friday, Eid al-Fitr and Eid al-Adha as holidays, along with six secular U.S. holidays. The U.N. move had important symbolic importance. Israeli ambassador to the U.N. Danny Danon (who along with U.S. Ambassador Samantha Powers) led the move to add Yom Kippur, said: "Today we finally have an official place for the Jewish religion in the World’s parliament."

New Jersey Synagogue Files Court Appeal of Zoning Decision

The Clifton Journal reported Friday that the Clifton, New Jersey Orthodox Jewish congregation, Shomrei Torah, has filed an appeal in state court of a zoning decision that severely limits the size of the synagogue that Shomrei Torah plans to build. Plans to turn an existing house into a synagogue by building on an addition were rejected. The city's planning board voted 7-0 to limit the size of the proposed synagogue to 7,000 square feet in area or 35 feet in height-- a 57% reduction in the originally proposed square footage in order to insure that the synagogue meets requirements for number of parking spaces and conform the building to the neighborhood.

Recent Prisoner Free Exercise Cases

In Muhudin v. Wegener, 2015 U.S. Dist. LEXIS 166954 (D CO, Dec. 14, 2015), a Muslim inmate alleged that he was denied a halal diet. A federal magistrate judge ordered plaintiff to file an amended complaint within 30 days that corrects a number of pleading defects.

In Boyce v. McKnight, 2015 U.S. Dist. LEXIS 167197 (ND IL, Dec. 15, 2015), an Illinois federal district court permitted an inmate to proceed against one a correctional officer who the inmate claimed pepper sprayed him in retaliation for the inmate's exercise of religion.

In In re Jaynes, 88 Mass. App. Ct. 745 (MA App., Dec. 16, 2015), the Massachusetts Appeals Court upheld a probate court's denial of a Wiccan inmate's petition to change his name for religious reasons, in light of the inmate's history of using multiple aliases. Boston Herald reports on the decision.

In Bennett v. Turner, 2015 U.S. Dist. LEXIS 167874 (ND IA, Dec. 16, 2015), an Iowa federal district court gave an inmate 30 days to file an amended complaint alleging that removing all churches from the list of numbers he could call substantially burdened his free exercise of religion.

In Torres v. Aramark Food & Commissary Services, 2015 U.S. Dist. LEXIS 168188 (SD NY, Dec. 16, 2015), a New York federal district court allowed a Muslim inmate to move ahead with his complaint under the free exercise clause that the nutritional inadequacy of the Ramadan meals, combined with the inability to supplement the meals with food from the commissary, forced him to switch from the Ramadan diet.

In Johnson v. Poupore, 2015 U.S. Dist. LEXIS 168837 (ND N Y, Dec. 16, 2015), a New York federal magistrate judge recommended dismissing an inmate's complaint that authorities confiscated his gold cross and chain and would not allow him to designate his religion as both Nation of Islam and Catholic under rules that allow only one designated religion at a time. He attempted to add the Catholic designation in order to be allowed to recover his gold cross. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 9147, Jan. 27, 2016.

In Boykins v. Lanigan, 2015 U.S. Dist. LEXIS 169293 (D NJ, Dec. 16, 2015), a New Jersey federal district court dismissed an inmate's complaint that he was not permitted to obtain prayer oil from a third-party vendor instead of the prison chaplain.

In Moore v. Katavich, 2015 U.S. Dist. LEXIS 169634 (ED CA, Dec. 18, 2015), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that on three separate days the prison kitchen staff served him a vegetarian diet instead of his Halal diet.

In Fox v. Magana, 2015 U.S. Dist. LEXIS 167571 (ED NC, Dec. 14, 2015), a North Carolina federal district court permitted a female inmate to move ahead with her complaint that she is not given adequate time to practice her religion and is not permitted to conduct worship services outside while other fiaths are permitted to do so.

Saturday, December 19, 2015

Settlement Reached In Challenge To Terms of Indiana County's Open Forum Ordinance

On Friday the Thomas More Society announced that a settlement agreement (full text) has been reached in Freedom From Religion Foundation v. Franklin County, Indiana. The suit followed the adoption of a county ordinance that, in order to insulate from challenge the display of a nativity scene, made the county courthouse a public forum for all types of expressive activities. In the suit, FFRF and the Satanic Temple objected to a provision in the ordinance that limits the open forum to county residents. (See prior posting.) Under the settlement agreement, the ordinance will be amended to merely require a local contact who works or resides in either Franklin county or an adjacent Indiana county for any unattended display.

Majority of Texas City Council Resign Over Holding of Forum Sponsored By FFRF

12 News this week reports that three members of the China, Texas City Council have resigned over the last month, apparently primarily because the mayor permitted the Freedom From Religion Foundation to hold a public panel discussion in city hall in October. According to the Facebook page for the panel discussion:

The purpose of this event is to dispel misconceptions, gain accurate information about FFRF's ongoing involvement in SETX [Southeast Texas] school districts, and to discuss local and legal policies surrounding religion in public schools.

The resignations leave city council without a quorum to transact business. The Agenda for the Dec. 22 Council Meeting includes "Nominations for Vacant Council Seats." Friendly Atheist blog has more on the controversy and a link to a video of the FFRF panel discussion.

New Appropriations Bill Includes Extensions of Charitable Contribution Tax Incentives

Yesterday President Obama signed into law the 887-page Consolidated Appropriations Act 2016. Division Q of the bill is the "Protecting Americans From Tax Hikes Act" which made permanent a number of tax provisions that create incentives for charitable giving [scroll to pg. 805 of the bill]:

Sec. 111. Extension and modification of special rule for contributions of capital gain real property made for conservation purposes.

Sec. 112. Extension of tax-free distributions from individual retirement plans for charitable purposes.

Sec. 113. Extension and modification of charitable deduction for contributions of food inventory.

Sec. 114. Extension of modification of tax treatment of certain payments to controlling exempt organizations.

Sec. 115. Extension of basis adjustment to stock of S corporations making charitable contributions of property.

Calligraphy Assignment Involving Shahada Leads To Early Winter Break For Virginia Students

As reported by CNN, on Thursday afternoon Augusta County, Virginia school officials shut down all the schools a day early for winter break after information about a World Religion assignment handed out a week earlier received broad coverage and triggered threats to the school system. At issue was an assignment in a high school world geography course-- taken from a standard workbook, World Religions, first published in 1995-- that was designed to acquaint students with Arabic calligraphy. The workbook assignment said:

Since Islam forbids idolatry, mosques are decorated with calligraphy rather than human or animal figures.... Here is the shahada, the Islamic statement of faith, written in Arabic. In the space below, try copying it by hand. This should give you an idea of the artistic complexity of calligraphy.

On Tuesday, the Augusta County School superintendent issued a press release explaining the assignment after some parents expressed concern to him. As reported by Al Jazeera, high school parent Kimberly Herndon, one of the main objectors, posted a call on her Facebook page for the teacher involved to be fired because "she had [students] write an abomination to their faith and causes a little girl to cry herself to sleep because she was worried she had denounced her God." Herndon accused the teacher of attempting to indoctrinate students "into a religion of hate." In a press release on Thursday, the school superintendent announced:

Following parental objections to the World Geography curriculum and ensuing related media coverage, the school division began receiving voluminous phone calls and electronic mail locally and from outside the area. As a result of those communications, the Sheriff’s Office and the school division coordinated to increase police presence at Augusta County schools and to monitor those communications. The communications have significantly increased in volume today and based on concerns regarding the tone and content of those communications, Sheriff Fisher and Dr. Bond mutually decided schools and school offices will be closed on Friday, December 18, 2015.

This was followed up by an additional press release yesterday. Perhaps ironically, the early closure of schools apparently resulted in the cancellation of a number of Christmas programs, including choir and band concerts, scheduled for yesterday which students had been preparing for some time.

Friday, December 18, 2015

White House Convenes Forum on America's Religious Pluralism

As reported by Religion News Service, yesterday the White House convened a forum titled Celebrating and Protecting America’s Tradition of Religious Pluralism. Invited participants included secularists. The program began with remarks by Melissa Rogers, head of the White House Office of Faith-based and Neighborhood Partnerships, who emphasized that "there are no second-class faiths" in the United States. A video of the entire forum is available on YouTube. The Department of Justice has posted the full text of remarks at the forum by Vanita Gupta, head of the Civil Rights Division.

Britain's Law Commission Studies Possible Reform of Marriage Laws

Yesterday Britain's Law Commission published a 97-page background paper that lays the groundwork for possible reform of the country's marriage laws. The publication, Getting Married: A Scoping Paper, highlighted two key policy areas that need examination in any reform: (1) whether non-religious organizations or independent celebrants should be able to conduct marriage ceremonies; and (2) how far the rules for entering civil partnerships should mirror the rules for marriage. Law & Religion UK has more on the Law Commission's report.

India's Supreme Court Balances Religious Rights Against Social Reform

In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (India Sup. Ct., Dec. 16, 2015), the Supreme Court of India came down with a complicated holding on the constitutionality of an administrative order ("GO") adopted by the State of Tamil Nadu that attempts to eliminate the hereditary priesthood in Hindu temples. It provides instead that "any person who is a Hindu and possessing the requisite qualification and training" is eligible for appointment. This was challenged by an association representing Hindu priests as well as by individual priests as infringing Constitutional rights of freedom of religion and of religious denominations to manage their own affairs. India's First Post describes the Supreme Court's holding:

[T]he crucial purpose of the GO was to eliminate the monopoly of Brahmins as priests in the temples of Tamil Nadu. The idea was to open these positions to all suitable candidates from all castes who had obtained the appropriate training in the centres set up by the government.

The petitioners on the other hand contended that this GO went against the fundamental tenets of the Hindu religion, represented here by the agama shastras which prescribed how the rituals were to be carried out and who could be appointed as priests to Hindu temples. It was argued that following the agama shastras were “essential religious practices” protected under Article 26 of the Constitution which if deviated from on the basis of a GO, would amount to an invasion of the right of a denomination to carry out its religious practices.

[The Supreme Court] ... upheld the [GO] but with a rider that appointments made under it can be challenged on a case-by-case basis, as being contrary to the agama sastras or customs. But crucially, the agama sastras or customs may themselves be subject to scrutiny by the court to see if they are contrary to the provisions of the Constitution of India. The court has thus tried to strike a balance between two very contradictory impulses in our polity: The right to practice one’s religion and the social reform of religious practices.

Suit Challenges New Rule Excluding Religious Schools From Montana Scholarship Tax Credit Law

The Montana Department of Revenue in a notice (full text) certified to the Secretary of State on Dec. 14 that it has adopted, as proposed, Rule 1 (full text) that excludes religiously affiliated schools from participating in the state's new School Contributions Tax Credit law. (See prior posting.) On Dec. 16. three mothers sued the state challenging the new rule. The complaint (full text) in Espinoza v. Montana Department of Revenue, (MT Dist. Ct., filed 12/16/2015) claims that the exclusion of religiously affiliated schools is inconsistent with the intent of the legislature in enacting the scholarship tax credit law, and contends that the exclusion violates the free exercise, establishment and equal protection clauses of the Montana and U.S. Constitutions. Institute for Justice announced the filing of the lawsuit.

Montana has a procedure for committees of the state legislature to weigh in on whether they believe that a particular proposed rule is consistent with legislative intent. Using that procedure, the relevant committees of the Montana House and Senate voted that the proposed rule is inconsistent with legislative intent. (Notice of Legislative Poll). The results of this legislative poll are admissible in evidence in the suit challenging the new rule.

The Great Falls Tribune reported yesterday:

Montana Solicitor General Dale Schowengerdt submitted comments while the rule was still in draft form that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason.

“The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.

But Fox will have to defend the rule in the lawsuit and another expected to be filed in federal court. The Department of Justice is the attorney for the state when an agency is sued.

Catholic School Violates Mass. Law By Refusing To Hire Applicant Who Is In A Same-Sex Marriage

In Barrett v. Fontbonne Academy, (MA Super. Ct., Dec. 16, 2015), a Massachusetts state trial court held that a Catholic women's preparatory school unlawfully discriminated on the basis of sexual orientation and gender in violation of 21 MGL Chap. 151B when it withdrew an offer of employment as Food Services Director to Matthew Barrett after it discovered he was a spouse in a same-sex marriage. The school said that same-sex marriage is inconsistent with the teachings of the Catholic Church. In finding a statutory violation, the court rejected the school's argument that it came within the statutory exemption for religious organizations in Sec. 1(5) of the statute, because that exemption is limited to organizations that limit membership, enrollment, admission, or participation to members of the same religion. The court held that this limitation takes precedence over seemingly broader exemptive language for religious organizations in Sec. 4(18). It also held that imposing these anti-discrimination provisions on the school did not violate the school's right of expressive association. Finally the court rejected the school's reliance on the "ministerial exception" doctrine, concluding that Barrett would not be considered a minister "under any version of this doctrine." The Advocate reports on the decision.

Thursday, December 17, 2015

DOE Exemptions From Title IX For Religious Colleges Is Growing

Earlier this month, The Column reported that in the last 18 months, the Department of Education has granted waivers to 27 religious colleges and universities in 17 states from the Department's interpretation of Title IX that bars schools receiving federal funds from discriminating against transgender students. (See prior related posting.) Nine other schools have exemption applications pending. A number of these schools have sought and received even broader exemptions from Title IX based on the school's religious tenets. For example in February the Department of Education granted a broad waiver to Anderson University:

The University is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organization’s religious tenets.

Christian advocacy groups are providing training and sample documents for schools to use in applying for exemptions. [Thanks to Religion Dispatches for the lead.]

Wheaton College Suspends Prof Over Statement In Solidarity With Muslims

Religion News Service yesterday reported on the controversy at Christian-affiliated Wheaton College which has placed political science professor Larycia Hawkins on administrative leave for a statement she made expressing solidarity with Muslims. Hawkins, an Episcopalian, decided to wear a hijab during the Advent season leading up to Christmas as a statement of solidarity. But the statement that potentially placed her job in jeopardy was a Facebook post reading:

I stand in religious solidarity with Muslims because they, like me, a Christian, are people of the book. And as Pope Francis stated last week, we worship the same God.

In a press release Tuesday, the Wheaton College administration said:

In response to significant questions regarding the theological implications of statements that Associate Professor of Political Science Dr. Larycia Hawkins has made about the relationship of Christianity to Islam, Wheaton College has placed her on administrative leave, pending the full review to which she is entitled as a tenured faculty member.

Wheaton College faculty and staff make a commitment to accept and model our institution's faith foundations with integrity, compassion and theological clarity. As they participate in various causes, it is essential that faculty and staff engage in and speak about public issues in ways that faithfully represent the College's evangelical Statement of Faith.

Historically Wheaton College, located in Illinois, while evangelical has not been fundamentalist in its outlook. However the school has been one of the religious institutions at the center of the Affordable Care Act's contraceptive mandate controversy. (See prior posting.)