Thursday, March 31, 2016

Obama Speaks At White House Easter Prayer Breakfast

Yesterday, President Obama (introduced by Vice President Joe Biden) spoke at his annual Easter Prayer Breakfast in the State Dining Room at the White House. (Full text of remarks.) The President said in part:
[I]n light of recent events, this gathering takes on more meaning.  Around the world, we have seen horrific acts of terrorism, most recently Brussels, as well as what happened in Pakistan -- innocent families, mostly women and children, Christians and Muslims.  And so our prayers are with the victims, their families, the survivors of these cowardly attacks. 
... [T]hese attacks can foment fear and division.  They can tempt us to cast out the stranger, strike out against those who don’t look like us, or pray exactly as we do.  And they can lead us to turn our backs on those who are most in need of help and refuge.  That’s the intent of the terrorists, is to weaken our faith, to weaken our best impulses, our better angels. 
... [I]f Easter means anything, it’s that you don’t have to be afraid.  We drown out darkness with light, and we heal hatred with love, and we hold on to hope.  And we think about all that Jesus suffered and sacrificed on our behalf -- scorned, abandoned shunned, nail-scarred hands bearing the injustice of his death and carrying the sins of the world.
AP reported on the President's remarks.

Alaska Appeals Court: Reconsider Sex Offender's Bar On Taking His Children To Church

In Binder v. State of Alaska, (AK, March 30, 2016), an Alaska appeals court remanded a case to the trial court to reconsider defendant's request that his conditions of probation be modified to allow him to visit and attend church with his children. The court said that it was not enough to leave this issue to the discretion of defendant's probation officer. Instead the court should decide whether, for example, defendant could attend church with his children supervised by a person approved by the court or his probation officer. The appeals court explained:
When probation conditions potentially infringe fundamental constitutional rights, a sentencing judge must scrutinize the conditions and consider whether less restrictive alternatives might suffice.

Wednesday, March 30, 2016

Bible Colleges Lose Challenge To State Regulation

In Illinois Bible Colleges Association v. Anderson, (ND IL, March 28, 2916), an Illinois federal district court rejected constitutional challenges by a group of Bible Colleges to three Illinois statutes that regulate institutions of higher education in the state.  The statutes generally require approval by the state Board of Higher Education to operate a degree-granting college or grant degrees or certificates of completion.  Plaintiffs argued, among other things, that the statutes "subordinate the Church’s responsibility to God in deciding how to properly educate students in religious teaching" and "unconstitutionally restrict... their ability to accurately describe the nature of the Bible Colleges’ curricula by regulating the use of the terms 'Bachelor’s,' 'Master’s,' or 'Doctorate' degrees." The court rejected plaintiffs' establishment clause, free exercise, speech, association and equal protection challenges to the statutes and dismissed the complaint.

FOIA Request Aimed At Human Trafficking Grant To Catholic Bishops

The ACLU earlier this month filed a Freedom of Information Act lawsuit seeking the release of records related to the federal government’s award of Trafficking Victim Protection Act funds to the U.S. Conference of Catholic Bishops (USCCB).  According to the complaint (full text) in ACLU v. Administration for Children and Families, (SD NY, filed 3/17/2016), in 2009 the ACLU filed a lawsuit claiming that the federal government violated the Establishment Clause by allowing USCCB under a 2006 grant to enter subcontracts with religiously-based reproductive health care restrictions in them.  Those subcontracts barred subcontracting agencies from furnishing abortion and contraception services or referrals to trafficking victims. The lawsuit was ultimately dismissed as moot because the government was no longer contracting with USCCB.  However in 2015 USCCB received a new grant, and the ACLU is now seeking documents to determine whether religiously-based restrictions are again being imposed. LifeSite News yesterday reported on the lawsuit.

Sikhs Sue Over Army Accommodation of Religious Practices

A lawsuit was filed yesterday by three observant Sikhs who have enlisted in the Army, but who are encountering difficulties in obtaining accommodation to allow them to continue to wear beards, uncut hair, and turbans.  The 54 page complaint (full text) in Singh v. McConville, (D DC, filed 3/29/2016), alleges in part:
[T]he Army has a long pattern and practice of discriminating against Sikhs.... The Army’s regulations promise that soldiers whose religious exercise poses no significant obstacle to the military’s mission will be generously accommodated.... [H]owever, the regulations themselves are defective and foster religious discrimination on a number of levels.... [T]hey force soldiers who need religious accommodations to violate their religious beliefs before they can apply for an accommodation, even if their religious exercises would clearly have no impact on the military’s compelling interests.
The regulations are also ... require soldiers to reapply for a religious accommodation every time they have a “transfer of duty stations, or other significant change in circumstances”..... The ambiguity in the regulations also creates an environment where the Army feels free to delay resolving requests for accommodation for long periods of time, leaving future soldiers in limbo and potentially forcing them to forgo other education and career opportunities while they wait for the Army’s decision.
Becket Fund issued a press release announcing the filing of the lawsuit.

Suit By Man Injured Through Faith Healing May Proceed

In Sung-Ho Hwang v. Grace Road Church, (ED NY, March 14, 2016), a New York federal district court allowed a mentally ill man (in a suit through his conservator) to move ahead with negligent infliction of emotional distress and negligent supervision claims against a Korean-based church and its members who forced him off his prescription medications and attempted to cure him through religious healing. Plaintiffs' treatment of defendant-- including tying his wrists, ankles, and knees in a chair or bed with duct tape, and placing a sock in his mouth to restrain his screams at night-- led to amputation of his right leg and exacerbation of his psychotic symptoms.  The court rejected a number of procedural defenses and, in permitting the negligent infliction claim to move forward, said:
Even if the church and its members had no duty to plaintiff until the moment they restrained him, they acquired a duty to exercise reasonable care to secure his safety during the period of his restraint.
New York Law Journal reports on the decision.

Tuesday, March 29, 2016

Supreme Court In Unusual Order Floats Alternative Compromise In Contraceptive Mandate Cases

The U.S. Supreme Court today issued an unusual Order (full text) in Zubik v. Burwell and the six other cases consolidated with it, less than a week after the Court heard oral arguments in the case.  In what is apparently an attempt to avoid a 4-4 split in the case, the Court has essentially drafted its own version of a compromise on provision of contraceptive coverage in health insurance policies for employees of religious non-profits, and is asking the parties whether they will buy into it. The Order reads in part:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.  Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners. 
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.....
Initial reactions from the non-profits suggest that they may be willing to accept this version of the compromise. A press release from the Becket Fund, counsel for Little Sisters of The Poor, petitioners in one of the cases, describes the Court's Order as an "excellent development."

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.

Recent Articles of Interest

From SSRN:
From SSRN (Islamic Law):

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.]