Religion Clause

Friday, March 04, 2016

Recent Prisoner Free Exercise Cases

In Dunn v. Catoe, 2016 U.S. Dist. LEXIS 22252 (ED TX, Feb. 23, 2016), a Texas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 23148, Jan. 15, 2016) and dismissed a Muslim inmate's complaints about policies requiring an outside volunteer at religious services, gang members infiltrating Muslim religious meetings, insufficient food when lock downs occur during Ramadan, and denial of the right to wear a beard.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 23304 (WD WA, Feb. 25, 2016), a Washington federal magistrate judge held that unless a proper amendment is filed, she would dismiss a complaint by a Hare Krshna inmate that he has been unable to obtain fresh milk as part of his diet as required by his religious beliefs.

In Todd v. California Department of Corrections, 2016 U.S. Dist. LEXIS 23338 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended that an inmate be permitted to proceed with free exercise, Establishment Clause and equal protection claims stemming from refusal to recognize Creativity as a religion, denial of a religious diet and banning of the Holy Books of Creativity.

In Fernandez-Torres v. Watts, 2016 U.S. Dist. LEXIS 23964 (SD GA, Feb. 26. 2016), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to have Santeria Bead Necklaces sent to him by his "spiritual family," and could only obtain them from an approved vendor.

In Thody v. Ives, 2016 U.S. Dist. LEXIS 24092 (CD CA, Feb. 25, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24095, Jan. 5, 2016) and dismissed as not congnizable in a habeas corpus action an inmate's complaint that members of their non-Judaist, Messianic, Sabbitarian, Zionist belief group have been denied the right to assemble, teach and practice their religion.

In Schlemm v. Wall, 2016 U.S. Dist. LEXIS 24332 (WD WI, Feb. 29, 2016), a Wisconsin federal district court held that because of disputed issues of material fact, the case should proceed to trial on claims that an inmate's RLUIPA rights were infringed when he not permitted to serve venison during the annual Native American Ghost Feast; and was prevented from wearing a multicolored bandana while praying or meditating in his cell and during group religious ceremonies.

In Monroe v. Walker, 2016 U.S. Dist. LEXIS 24475 (D NV, Feb. 26, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24474, Jan. 11, 2016) and allowed a Muslim inmate to proceed against one of the defendants on his complaint that he was admonished for wearing his religiously approved Kufi and was treated differently than similarly situated Jewish inmates.

Thursday, March 03, 2016

Minnesota Federal Judge Creating Innovative Deradicalization Program Aimed At ISIL Recruits

The Minneapolis Star Tribune and MPR News reported yesterday that Minnesota federal district judge Michael J. Davis is setting up an innovative Terrorism Disengagement and Deradicalization Program aimed at deradicalizing defendants convicted of plotting to join ISIS. Davis has presided over most of the terrorism trials of young Somali-Americans in Minnesota. In court papers filed in the case of four men who pleaded guilty to conspiracy to provide material support and resources to ISIL, the court says it plans to have the U.S. Probation Office work with a consultant from the German Institute on Radicalization and Deradicalization Studies to recommend an individualized intervention program tailored to each defendant's circumstances and underlying radicalization factors. The U.S. Attorney's Office is fully supportive of the new initiative. Defense attorneys have not yet decided whether to accept the plan.

Suit Challenges Cross Decals On Sheriff's Office Patrol Cars

The Freedom From Religion Foundation filed suit yesterday against a Texas sheriff who placed 8-inch tall Latin cross decals on six county law enforcement vehicles. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Brewster County, Texas, (WD TX, filed 3/2/2016), says that Sheriff Ronny Dodson placed the decals on patrol vehicles because he "wanted God’s protection over his deputies." The suit contends that this violates the First Amendment's Establishment Clause as well as Art. I, Sec. 6 of the Texas Constitution. FFRF issued a press release announcing the filing of the lawsuit.

IRS Releases Financial Data On Charities From 2012 Returns

The Internal Revenue Service in its recently-released Statistics of Income (Winter 2016) discloses extensive financial data regarding Nonprofit Charitable Organizations and Donor-Advised Funds. The data was compiled from Forms 990 and 990-EZ filed for tax year 2012. Non-profit charitable organizations had assets of $3.3 trillion. They received over $1.7 trillion in total revenue (nearly 75% of which came from program services). Charities holding $10 million or more in assets filed only 8% of the tax returns, but accounted for 92% of overall charitable assets.

Church Wins In RLUIPA "Equal Terms" Challenge To Redevelopment Zone Limits

In Summit Church v. Randolph County Development Authority, (ND WV, March 2, 2016), a West Virginia federal district court held that the Randolph County (WV) Development Authority violated the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act when it refused to sell property in a redevelopment project to a church. The property was part of a former rail yard being redeveloped for mixed commercial use, reflecting the "the history and culture of the site." The court said in part:

The defendants wholly fail to attempt to define what they believe the “history and culture of the site” even is. It was a railyard.... Therefore, an operating train, a railroad museum or railroad-themed restaurant – which do exist in the current Elkins Railyard – theoretically make sense under the RCDA’s vision. The other existing establishments are nothing more than “medical tenants.... The northern portion of the Railyard... is morphing into something more akin to a medical park. The defendants have not shown, however, how a church would harm the Covenants’ objectives any more than the other permitted uses.

Wednesday, March 02, 2016

SCOTUS Hears Oral Arguments In Texas Abortion Regulation Case

The U.S. Supreme Court today heard oral arguments in one of the most important abortion cases to reach it in some time, Whole Women's Health v. Hellerstedt. The full transcript of today's oral arguments is now available. The case page from SCOTUSblog provides links to the cert. petition, all the briefs, the lower court decision and commentary on the case. Lyle Denniston at SCOTUSblog also has an analysis of this morning's argument. At issue in the case are provisions in a 2013 Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, and requiring abortion clinics to meet standards for ambulatory surgical centers.

Pennsylvania Grand Jury Exposes Extensive Sex Abuse By Catholic Diocese Clergy

Yesterday Pennsylvania Attorney General Kathleen Kane released a 147-page Grand Jury report (full text) on sexual abuse of children by Pennsylvania Catholic clergy. As summarized in the Attorney General's press release:

A statewide investigating grand jury has determined that hundreds of children were sexually abused over a period of at least 40 years by priests or religious leaders assigned to the Roman Catholic Diocese of Altoona-Johnstown, Pennsylvania....

The widespread abuse involved at least 50 priests or religious leaders. Evidence and testimony reviewed by the grand jury also revealed a troubling history of superiors within the Diocese taking action to conceal the child abuse as part of an effort to protect the institution's image.

The Grand Jury concluded its report with 3 recommendations: (1) abolish the statute of limitations for sexual offenses against minors; (2) open a window to allow child sexual abuse victims to have their civil actions heard; and (3) possible criminal conduct should be directly reported to law enforcement authorities. Washington Post has more on the grand jury report.

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that. In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.) In his veto message (full text) Daugaard said in part:

If and when these rare situations arise, I believe local school officials are best positioned to address them. Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

Washington Post reports on the governor's veto.

RICO Lawsuit Filed Against Pastor and Elder of Defunct Megachurch

A civil RICO lawsuit was filed last week against Mark Driscoll, pastor of the now-closed Seattle, Washington, Mars Hill Church. At its height, the Mars Hill had expanded to 5 states and drew 13,000 attendees on an average Sunday. Also named in the suit filed by 4 former church members was the church's chief elder, John Sutton Turner. The complaint (full text) in Jacobsen v. Driscoll, (WD WA, filed 2/29/2016), alleges that defendants solicited contributions from thousands of members for specific charitable purposes and then diverted the funds to other purposes, including fraudulent promotion of Driscoll's book, Real Marriage, and for church expansion. Daily Beast reports on the lawsuit and its background:

Mars Hill closed its doors in 2014, following a number of scandals involving allegations of Driscoll’s bullying and spiritual abuse of members and church leaders, misogyny, and homophobia espoused on a church message board, plagiarism, and misuse of church funds—which this lawsuit seeks to redress. Since its closure, the details of the organization’s dissolution have been opaque, with little public accounting, and a group of remaining leaders who have refused to comment on who gets what from the failed enterprise

Church of Cyprus and Government Reach Salary Subsidy- Land Swap Deal

After 45 years of negotiations, the Church of Cyprus and the Cyprus government have finally reached an agreement on governmental payments of priest salaries in exchange for transfer of land from the Church to the government. In-Cyprus reported yesterday that the Church will transfer 15,000 acres of land to the government. In exchange the government will fund half the salaries of 700 priests for the next ten years. For each of the 700 priests, the government will pay the church the equivalent of $733 per month. The land being transferred is valued at the equivalent of $304 million.

Tuesday, March 01, 2016

Court May Decide Church Affiliation Dispute

In Ohio District Council, Inc. of the Assemblies of God v. Speelman, (OH App., Feb. 29, 2016), an Ohio state appeals court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating the validity of action by a local church, known as Christian Assembly, disaffiliating itself from Assemblies of God and instead merging with (and transferring its property to) Fellowship of Praise Church of God. After Christian Assembly took this action, Assemblies of God adopted a resolution declaring that it still had jurisdiction over the church and purporting to remove its pastor Dennis Speelman. In holding that the trial court can decide the dispute, the appeals court said in part:

A judicial determination with respect to the significance of Christian Assembly’s affiliation involves no ecclesiastical issues. Here, the parties have presented evidence of constitutions, by-laws, applications for affiliation, as well as ample testimony regarding the structure of the presbytery. The resolution of that matter does not involve the weighing of any controversies concerning religious doctrines, tenets, or practices....

The trial court was not called upon to determine whether Speelman should be pastor or to determine matters of religious concern. Rather, the trial court was called upon to determine which body was authorized to make those determinations and to defer to the determination of the authorized body.

Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban. According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing. According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments. Becket Fund issued a press release announcing the filing of the lawsuit.

China Charges Human Rights Lawyer Criminally

Radio Free Asia reported yesterday that Chinese authorities have now arrested a Chinese human rights lawyer on criminal charges after he assisted Protestant churches in resisting an urban "improvement" campaign that required removal of their roof-top crosses:

Zhang Kai's initial period of detention in an unknown location under "residential surveillance" reached the end of its six-month limit last week, and the lawyer was immediately held instead under criminal detention on suspicion of "disturbing public order" and "endangering state secrets," a fellow lawyer told RFA....

Chinese media aired footage of Zhang last Friday "confessing" to the charges, and accused U.S.-based Christian rights group ChinaAid of supporting him.

The confession appears to have been coerced.

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.) In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.

Monday, February 29, 2016

Cert Denied In Prisoner Free Exercise Case Over Alito's Dissenting Opinion

The U.S. Supreme Court today denied certiorari in Ben-Levi v. Brown, (Docket No. 14-1086, cert. denied 2/29/2016) over a lengthy dissent to denial of review by Justice Alito (at pg. 39 of Order List). In the case, the lower courts (district court, 4th Cir.) upheld a rule of the North Carolina prison system which requires either a minyan (ten participants) or the presence of a qualified leader (such as a rabbi) in order for a Jewish Bible study group to meet. Other religious groups were allowed to meet without a specified number of participants or an outside volunteer. The prison system's rule for Jewish inmates was based on the prison system's understanding of Jewish religious doctrine. Dissenting from the denial of review, Justice Alito wrote:

In essence, respondent’s argument—which was accepted by the courts below—is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion..... The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents.... Even assuming that respondent accurately identified the requirements for a group Torah study under Jewish doctrine—and that is not at all clear—federal courts have no warrant to evaluate “‘the validity of [Ben-Levi’s] interpretations.’”

[Thanks to Marty Lederman via Religionlaw for the lead.]

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer. Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

State Exception To Priest-Penitent Privilege Violates Louisiana Religious Freedom Act

The Baton Rouge Advocate reports on a Louisiana state trial court decision handed down on Friday that upholds, on religious freedom grounds, a priest's right to refuse to disclose confidential information regarding sexual abuse of minors received during confession. The court invalidated a provision in LA Children's Code Sec. 609(A)(1) which requires clergy to report abuse or neglect that threatens a child's physical or mental health or welfare, notwithstanding any privilege. Apparently relying on Louisiana's Preservation of Religious Freedom Act, the court held that while the state has a compelling interest in protecting children from abuse, this is not the least restrictive means of furthering that interest. The decision by Judge Mike Caldwell comes in a suit by Rebecca Mayeaux, now 22, who says that in 2008 she told Rev. Jeff Bayhi during confession that she was being abused by a 64-year old parishioner. Under the ruling, Mayeaux will be able to testify about what she told Bayhi, but her attorneys will not be permitted to argue to the jury that Bayhi was required to report her allegations to authorities. The ruling is subject to immediate appeal to the Louisiana Supreme Court. The lawsuit, originally filed in 2009, has already been up to the state Supreme Court once. (See prior posting.)

Sunday, February 28, 2016

El Al Sued In Israel Over Gender-Based Reseating To Accommodate Religious Objections

A widely anticipated test case has been filed in court in Israel against El Al Airlines over its practice of accommodating Orthodox Jewish men who, for religious reasons, refuse to sit beside unrelated female passengers. New York Times reported Friday on the discrimination suit filed by the Israel Religious Action Center on behalf of 81-year old Renee Rabinowitz who was pressured by a flight attendant to change seats on a flight from Newark to Tel Aviv. Rabinowitz is described by the Times as "a sharp-witted retired lawyer with a Ph.D. in educational psychology, who escaped the Nazis in Europe as a child." Rabinowitz moved to Israel from the United States some ten years ago. Both her second and first husbands were rabbis. The Religious Action Center had been looking for at test case where it was clear that flight attendants, as opposed to passengers alone, were involved in the seating change.