Religion Clause

Tuesday, March 29, 2016

Arbitration Clause In Mosque's By-Laws Covers Misappropriation Claims

In Matahen v. Sehwail, (NJ App., March 24, 2016), members of a local mosque sued claiming that defendants (also members of the mosque) misused the mosque's credit card for personal expenses and legal expenses of the mosque's Imam. Plaintiffs also claimed that one of the defendants was improperly maintained on the mosque's health insurance plan after he ceased working for the mosque and his children's school tuition was paid for by the mosque. A New Jersey state appeals court held that an arbitration clause in the mosque's by-laws applies to these claims and ordered the claims be referred to arbitration. The clause provides:

The board shall create an Islamic Arbitration Committee of 3-5 members in case of disagreement among board members or general assembly members of matters related to the center, such committee shall consist of a Lawyer, an Imam, and Community Leaders. All disputes arising hereunder shall be resolved by arbitration by the aforementioned committee....

The court pointed out that the "general assembly" is the general membership of the mosque, and all the plaintiffs and individual defendants were members. New Jersey Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Suit Challenges Pennsylvania City's Abortion Clinic Buffer Zone

Last week, three women who regularly act as pro-life "sidewalk counselors" outside two abortion clinics filed suit in a Pennsylvania federal district court challenging the constitutionality of Harrisburg's "Interference With Access To Health Care Facilities" Ordinance. The ordinance bars congregating, patrolling, picketing or demonstrating within 20 feet of any health care facility entrance, exit or driveway. The complaint (full text) in Reilly v. City of Harrisburg, (MD PA, filed 3/24/2016) contends that the ordinance violates freedom of expression, free exercise of religion, freedom of assembly, equal protection and due process rights. Liberty Counsel announced the filing of the lawsuit.

Bangladesh Court Throws Out Petition Seeking To End Islam As State Religion

As reported by Voice of America, yesterday a 3-judge panel of Bangladesh's High Court rejected on procedural grounds a controversial petition filed 28-years ago seeking to eliminate the designation of Islam as the country's state religion. Petitioners argued that recognition of Islam-- practiced by 90% of the population-- as the state religion is inconsistent with the country's secular constitution and discriminates against religious minorities. As soon as the case opened in court yesterday, the judges ruled that because the secular group filing it never registered with authorities, it has no right to file a petition.

Wedding Chapel That Objects To Performing Same-Sex Ceremonies Lacks Standing For Most of Its Challenges

In 2014, two Christian ministers and their wedding chapel known as the Hitching Post brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its LGBT anti-discrimination ordinance against them, and for damages. In Knapp v. City of Coeur d'Alene, (D ID, March 25, 2016), the court held that because the city conceded within a week of the filing of the lawsuit that the religious chapel is exempt from the anti-discrimination law, plaintiffs lack standing to seek an injunction. At most the chapel can sue for lost business on the one day after same-sex marriages became legal that it was closed out of fear it would be required to perform same-sex marriages. The court did not reach the merits of whether plaintiffs' free speech, free exercise, equal protection and due process rights were in fact infringed on that day. (See prior related posting.)

UPDATE: The suit was eventually settled by the city paying plaintiffs $1000. (CDA Press, May 3, 2016).

Suit Challenges North Carolina's Anti-Transgender Law

The ACLU, Equality North Carolina and three individuals yesterday filed a federal lawsuit challenging a statute enacted last week in North Carolina which bars transgender individuals from using school and public agency bathrooms that correspond with their gender identity. The law also more broadly pre-empts local anti-discrimination laws. (See prior posting.) The complaint (full text) in Carcaño v. McCrory, (MD NC, filed 3/28/2016) contends that the law was enacted for the purpose of disadvantaging members of the LGBT community and is based on animus against LGBT people. Plaintiffs allege that the law violates the Equal Protection Clause and Title IX of the 1964 Civil Rights Act, and infringes their right to privacy and right to refuse unwanted medical treatment. Wall Street Journal reports on the lawsuit.

UPDATE: North Carolina Attorney General Roy Cooper said at a news conference that he will not defend the state's new law against the challenge in this lawsuit. He called the law a national embarrassment and unconstitutional. Cooper is running against incumbent Republican Gov. Pat McCrory who signed the anti-transgender bill. (AP, BuzzFeed, 3/29/2016).

Monday, March 28, 2016

Georgia Governor Will Veto Religious Liberty Bill

Georgia Governor Nathan Deal announced this morning that he will veto HB 757, the expansive Free Exercise Protection Act passed earlier this month by the state legislature. (See prior posting.) As reported by CNN, the Republican governor has been under pressure from major business, technology and entertainment companies to veto the bill which was seen as condoning discrimination against members of the LGBT community. In his veto message (full text), Gov. Deal said in part:

If indeed our religious liberty is conferred by God and not by man-made government, we should need the “hands off” admonition of the First Amendment to our Constitution. When legislative bodies attempt to do otherwise, the inclusions and omissions in their statues can lead to discrimination, even though it may be unintentional. That is too great a risk to take.

Some of those in the religious community who support this bill have resorted to insults that question my moral convictions and my character. Some within the business community who oppose this bill have resorted to threats of withdrawing jobs from our state. I do not respond well to insults or threats. The people of Georgia deserve a leader who will made sound judgments based on solid reasons that are not inflamed by emotion....

As I've said before, I do not think we have to discriminate against anyone to protect the faith based community in Georgia of which my family and I are a part of for all of our lives.

California Board of Regents Adopts Proposal Aimed At Campus Anti-Semitism

Last Thursday, the University of California Board of Regents unanimously adopted "Principles Against Intolerance" (full text) as a response to an increase in anti-Semitic incidents on UC campuses. The Introduction to the new document explains:

During the 2014-15 academic year, the Regents received correspondence and public comment from a variety of sources expressing concern that there has been an increase in incidents reflecting anti-Semitism on UC campuses. These reported incidents included vandalism targeting property associated with Jewish people or Judaism; challenges to the candidacies of Jewish students seeking to assume representative positions within student government; political, intellectual and social dialogue that is anti-Semitic; and social exclusion and stereotyping. Fundamentally, commenters noted that historic manifestations of anti-Semitism have changed and that expressions of anti-Semitism are more coded and difficult to identify. In particular, opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.

Anti-Semitism, anti-semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California.

As reported by the New York Times, the version of the document that was adopted eliminated previously proposed language that would have condemned all forms of anti-Zionism.

More Recent Prisoner Free Exercise Cases

In Greenhill v. Clarke, 2016 U.S. Dist. LEXIS 37439 (WD VA, March 23, 2016), a Virginia federal district court refused to grant a preliminary injunction to a Muslim inmate complaining about access to Jum'ah services, restrictions on beard length and handling of religious meals.

In Patterson v. Berrett, 2016 U.S. Dist. LEXIS 37788 (D NV, March 22, 2016), a Nevada federal district court dismissed an inmate's complaint that wearing an identification wristband violates his free exercise rights.

In Guillory v. Hodge, 2016 U.S. Dist. LEXIS 37898 (SD MS, March 23, 2016), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that his overcrowded cell made it difficult for him to perform Salat and Wudu; he was not allowed to have various religious items; and denied a modified meal schedule for Ramadan.

In Dawson v. Beard, 2016 U.S. Dist. LEXIS 38115 (ED CA, March 23, 2016), a California federal magistrate judge dismissed a claims by a House of Yahweh inmate that he was denied access to religious services and the right to fast.

In McBride v. Michigan Department of Corrections, 2016 U.S. Dist. LEXIS 38398 (ED MI, March 24, 2016), a Michigan federal district court adopted a magistrate's recommendations and refused to dismiss complaints by deaf inmates that their rights were infringed by failure to provide sign interpreters at religious services.

In Davis v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 38629 (D CO, March 24, 2016), a Colorado federal district court adopted a magistrate's recommendations and dismissed an inmate's claim that correspondence restrictions violated his free exercise rights.

In Abdul-Aziz v. Lanigan, 2016 U.S. Dist. LEXIS 38884 (D NJ, March 24, 2016), a New Jersey federal district court while dismissing some claims allowed Muslim inmates to move ahead on complaints seeking injunctive and declaratory relief alleging that they were denied daily Halal meats and meals; donated Halal feast meals; personal prayer oils; and congregational prayer.

Sunday, March 27, 2016

Recent Prisoner Free Exercise Cases

In Dolan v. Lowe, 2016 U.S. Dist. LEXIS 35118 (MD PA, March 18, 2016), a Pennsylvania federal district court upheld prison authorities' refusal to allow an inmate to change his religious designation from Christian-Catholic to Islam so he could participate in Ramadan.

In Langford v. Koskela, 2016 U.S. Dist. LEXIS 35712 (WD MI, March 21, 2016), a Michigan federal district court rejected a Muslim inmate's challenge to misconduct sanctions imposed when he refused to give a urine sample for drug testing while he was abstaining from food and water for Ramadan.

In Hayes v. Bruno, 2016 U.S. Dist. LEXIS 35996 (D CT, March 21, 2016), a Connecticut federal district court rejected a claim by an Orthodox Jewish inmate that the prison's Common Fare diet, which had been certified as kosher by two rabbis who served a prison chaplains, did not meet Orthodox kosher standards because of the method of preparation.

In Weddle v. Baker, 2016 U.S. Dist. LEXIS 36133 (D NV, March 21, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 37307, Jan. 11, 2016) and dismissed a Jewish inmate's complaint that he was denied kosher meals.

In Cox v. Cronin, 2016 U.S. Dist. LEXIS 36549 (WD NY, March 18, 2016), a New York federal magistrate judge recommended dismissing an inmate's complaint that barring him from NA meetings violated his free exercise rights because he had adopted NA as his religion. The court concluded that defendants were protected by qualified immunity.

In Al-Fuyudi v. Corrections Corporation of America, 2016 U.S. Dist. LEXIS 36687 (WD OK, March 22, 2016), an Oklahoma federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 37750, Jan. 26, 2016) and dismissed a complaint by a Muslim inmate in a private prison that he was not provided a proper and nutritionally adequate halal diet, was denied the right to wear a kufi at all times, and was not provided religious materials, access to Muslim television programs, and additional chapel time for services.

In Oliver v. Harner, 2016 U.S. Dist. LEXIS 36835 (SD IL, March 22, 2016), an Illinois federal district court allowed an Assembly of Yahweh inmate to move ahead with his complaint against the prison chaplain that he was denied a kosher diet.

In McCombs v. Parker, 2016 U.S. Dist. LEXIS 36906 (WD NC, March 22, 2016), a North Carolina federal district court dismissed without prejudice an inmate's complaint that he was denied a kosher diet and was denied the ability to attend a Messianic Jewish prayer service when the volunteer who was supposed to supervise it was ill.

In Booker v. Graham, 2016 U.S. Dist. LEXIS 37100 (ND NY, March 21, 2016), a New York federal magistrate judge told defendants to wait until the completion of discovery to move for summary judgment in a case in which Muslim inmates complained that they could not attend daily Ramadan services or consult with an imam during a lock down and that they received inappropriate Ramadan food.

In Smith v. Davis, 2016 U.S. Dist. LEXIS 37325 (ND CA, March 21, 2016), a California federal district court dismissed two of the defendants in a Muslim inmate's suit claiming that Muslim inmates were limited to one congregational prayer service per day and could not meet in groups of 5 or more for prayer. The suit continues against two others.

Lower Courts Applying Tougher RLUIPA Standards In Prisoner Cases

Last year's Supreme Court decision in Holt v. Hobbs on prisoner rights (see prior posting) is slowly beginning to impact otherwise routine prisoner claims in lower courts. Muhammad v. Wheeler, (ED AR, March 22, 2016) involves a rather typical RLUIPA challenge by a Muslim inmate to the availability of a Halal diet in his Arkansas prison. A vegetarian diet that complies with Halal requirements was available, but a Halal compliant diet containing meat was not. The federal magistrate judge who first heard the case recommended rejecting the claim on the ground that plaintiff had not shown a substantial burden on his religious exercise. (2016 U.S. Dist. LEXIS 36816, Jan. 19, 2016). However the district court rejected this portion of the recommendation. In refusing to grant summary judgment to either side, the court said in part:

It is certainly conceivable that providing halal meat to Mr. Muhammad would increase security concerns and require considerable resources to the extent that deciding not to provide it at all furthers a compelling government interest. However, ... [defendants] fail to make properly that argument..... For example, in support of their cost argument, they claim that changing their policy would incur an increase of “over $9,600 for one serving of meat” and that “depending on which meal plan an inmate is on, meat is generally served three times per day”... They calculate this substantial figure by multiplying the difference in cost between halal meat and regular meat by 16,020, the total number of inmates housed by the ADC. This is precisely the type of generalized argument that is not allowed under the RLUIPA. The proper focused inquiry under the RLUIPA is whether denying halal meat to Mr. Muhammad, not all ADC inmates, furthers a compelling government interest.

Even if ... [defendants] successfully demonstrated that completely denying Mr. Muhammad access to halal meat furthers a compelling government interest, they fail to show how their no-halal-meat policy is the least restrictive means of serving that interest.... For example, nothing in the record indicates how often halal meat would need to be served to satisfy Mr. Muhammad’s religious needs. Does Mr. Muhammad require three servings of meat a day or one serving a year? They also fail to respond to Mr. Muhammad’s proposed compromise – a pescatarian meal plan that combines the three halal fish items already served in the common fare plan with the vegetarian plan.... It is unclear to the Court whether this plan fits within Mr. Muhammad’s own beliefs regarding a halal diet, but if he claims that offering a pescatarian meal plan would no longer place a substantial burden upon his religious exercise, ... [defendants] must show how refusing to provide such a plan furthers a compelling government interest and is the least restrictive means of doing so.

White House Issues Easter Greetings and Plans For Annual Easter Egg Roll

On Friday, President Obama extended Good Friday and Easter greetings, saying:

Michelle and I join our fellow Christians in observing Good Friday and celebrating Easter this weekend. This is a time to remember the sacrifices made for us and hold all who suffer close to our hearts. Yet it is also a time to rejoice, give thanks for the Resurrection, and unite with Christians around the world in proclaiming, "Christ has risen; He has risen indeed." We wish all who celebrate a blessed and joyful Easter.

The White House on Friday also announced (full text) the full program, activities, and talent line-up for the 2016 White House Easter Egg Roll that will be held on the South Lawn of the White House on Monday. Over 35,000 tickets have been issued for the event.

Saturday, March 26, 2016

UN Report On Religious Freedom In Denmark Released

On March 22, the United Nations Special Rapporteur on Freedom of Religion or Belief filed his Preliminary Findings (full text) on his visit to Denmark to review the status of religious freedom there. The Evangelical Lutheran church is the established church of the country. Some 160 other groups enjoy either "recognition" or "acknowledgement." The lengthy report observes in part:

The existing system is obviously non-egalitarian. While virtually no one questions the spirit of freedom that prevails in Denmark, including in the area of religion or belief, the principle of equality certainly does not govern the treatment of diverse religious communities. This contrasts starkly with the everyday culture in Denmark which indeed is markedly egalitarian....

[T]he understanding of religion in Denmark very much focuses on the dimension of the person’s inner conviction. This seems to echo a Christian and more specifically Lutheran understanding of redemption through faith alone (“sola fide”). As a result, aspects of ritual or ceremonial religious practice are relegated into a mere external sphere, which allegedly has less relevance and is less worthy of recognition. From the perspective of non-Christian religions, this can become worrisome. Two issues have arisen in various talks over the last few days, namely, the ban on ritual slaughter without prior stunning of the animal, enacted in February 2014, and public demands to outlaw religiously motivated circumcision of male infants.

[Thanks to Niels Valdemar Vinding via Religionlaw for the lead.]

Blasphemy Prosecutions In Egypt On The Rise

AP yesterday reported that since 2011, the number of blasphemy prosecutions in Egypt have risen dramatically. According to the report:

Two years ago, the military ousted the Muslim Brotherhood from power, and since then the government has been waging a harsh crackdown on Islamists.

Yet in the past three years, prosecutions on charges of insulting Islam have risen dramatically. From three such cases in 2011, there were 21 cases in the courts in 2015, around half targeting Christians.... Nine of the 2015 cases led to convictions and prison sentences, while the rest are still in the courts.

Part of the rise is connected to the spread of social media.... Many of the cases have originated in comments or videos posted on the Internet.... But also, prosecutors and judges have aggressively pursued the cases, aiming to show that the state is still "protecting Islam" even as it cracks down on Islamists.

6th Circuit: Names of Applicants For Non-Profit Tax Status Are Not Confidential

In a case which is highly charged politically, the U.S. 6th Circuit Court of Appeals this week held that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not confidential information protected by 26 USC Sec. 6103. The decision, United States v. NorCal Tea Party Patriots, (6th Cir., March 22, 2016), grew out of discovery requests in a lawsuit alleging that the IRS used political criteria to select applications from so-called tea party groups for special scrutiny. Washington Times reported on the decision.

Friday, March 25, 2016

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices. The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made. The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

Malaysian Civil Court Orders Recognition of Conversion Back To Christianity

In what the Borneo Post describes as a landmark case, a High Court judge in the Malaysian state of Sarawak has ordered the National Religion Department (NRD) to change a man's registration from Muslim to Christian and also to recognize his name change. The Star describes the decision in more detail. The man had been born into a Christian family, but the family converted to Islam when he was 8. The court said in part:

His conversion to the Muslim faith was not of his own volition but by virtue of his parents’ conversion when he was a minor.

He is not challenging the validity of his conversion as a minor. But having become a major, he is free to exercise his right of freedom to religion and he chose Christianity.

The NRD had insisted on a letter of release from a Syariah Court, but the High Court concluded that the man's constitutionally protected religious freedom rights entitled him to obtain relief from a civil court.

In N.J., Registered Sex Offender Not Barred From Mentoring Youth In Church Ministry

In State of New Jersey v. S.B., (NJ App., March 22, 2016), a New Jersey appellate court held that a youth ministry associated with a church, where a registered sex offender is a congregant volunteer, is not a "youth serving organization" under New Jersey's sex offender statute. In the case, defendant had notified church pastors and elders of his prior sexual assault convictions, as required by state law. The church nevertheless allowed defendant to supervise and mentor 12 to 17 year-olds at scheduled events of the No Limits Youth Ministry, such as outings, movie nights, concerts, youth group meetings, and day camp. In affirming the dismissal of an indictment of defendant for participating in a "youth serving organization", the court concluded that the legislature deliberately excluded religious organizations from the definition of organizations in which sex offenders are barred.

Belgium's Constitutional Court Invalidates Required Religious Education Courses

Flanders Today reported earlier this month that Belgium's Constitutional Court has struck down the requirement that all students in elementary or secondary school take either a religious education course in one of the six recognized religions, or take a course in ethics. In a religious freedom challenge to the requirement, the Court held that parents can now opt out of the requirement for their children, without being required to explain the reasons for their decision. [Thanks to Paul de Mello for the lead.]

U.N. Tribunal Convicts Former Serb Leader of Genocide

The United Nations Criminal Tribunal for the Former Yugoslavia in a press release yesterday announced the highest level conviction yet in the ethnic cleansing of Bosnian Muslims and Bosnian Croats from territory claimed by Bosnian Serbs in the 1990's:

Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) today convicted Radovan Karadžić, former President of Republika Srpska (RS) and Supreme Commander of its armed forces, of genocide, crimes against humanity and violations of the laws or customs of war committed by Serb forces during the armed conflict in Bosnia and Herzegovina (BiH), from 1992 until 1995. He was sentenced to 40 years’ imprisonment.

Karadžić was convicted of genocide in the area of Srebrenica in 1995, of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians and hostage-taking. He was acquitted of the charge of genocide in other municipalities in BiH in 1992.

The Office of the Prosecutor issued a statement welcoming the convictions. New York Times reports on the conviction.