Recent Prisoner Free Exercise Cases

In Greybuffalo v. Wall, 2016 U.S. Dist. LEXIS 50751 (WD WI, April 15, 2016), a Wisconsin federal district court permitted a Native American inmate to move ahead with his complaint that his requests for devotional services for the Native American Church and for group use of a water drum have been denied.

In Smith v. Courtney, 2016 U.S. Dist. LEXIS 51065 (ND FL, April 14, 2016), a Florida federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 51068, March 22, 2016) and dismissed a Muslim inmate's complaint that inmates in close management are not allowed to attend religious preaching and prayer with other Muslim inmates.

In Evans v. Muniz, 2016 U.S. Dist. LEXIS 51804 (ND CA, April 18, 2016), a California federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint against one of the defendants. At issue was the lack of halal meals.

In Jones v. Johnson, 2016 U.S. Dist. LEXIS 52553 (D CT, April 20, 2016), a Connecticut federal district court permitted an inmate to move ahead with his complaint that inmates in segregation were denied religious services.

In Cejas v. Myers, 2016 U.S. Dist. LEXIS 53088 (ED CA, April 19, 2016), a California federal magistrate judge recommended dismissing a Buddhist inmate's complaint about denial of chapel access for group services.

In Martinez v. Flicker, 2016 U.S. Dist. LEXIS 53149 (ED CA, April 19, 2106), a California federal magistrate judge dismissed with leave to amend an inmate's vague allegations that his religious rights have been infringed.

In Don v. Kelley, 2016 U.S. Dist. LEXIS 54124 (ED AR, April 22, 2016), an Arkansas federal magistrate judge dismissed a complaint by an inmate who practiced his religion as a Nazarite over the questioning and harassment he received about his religious beliefs.

Hasidic Challengers To Zoning Law Suffer a Defeat on Appeal

LostMessiah blog reports:

A [New York] state appeals court has upheld the Village of Woodbury’s Comprehensive Plan and zoning laws, reversing a 2014 ruling that branded the zoning “exclusionary” for failing to accommodate the high-density housing needs of the Hasidic residents of neighboring Kiryas Joel.

In Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., (NY App. Div., April 10, 2016), the appeals court concluded that the trial court should not have annulled the village's zoning action on environmental review and other procedural grounds. It sent the case back to the trial court, holding that "triable issues of fact exist as to whether the Comprehensive Plan and the Zoning Amendments amount to unconstitutional exclusionary zoning." (See prior related posting).

New York Court Refuses To Dismiss Suit To Declare Muslim Marriage Valid

In Jackson K v. Parisa G, 2016 N.Y. Misc. LEXIS 1487 (NY Sup Ct New York County, April 8, 2016), a New York state trial court refused to dismiss a suit by plaintiff who believed he had validly married defendant in an elaborate Iranian Islamic ceremony in New York, attended by 200 guests, even though the couple did not obtain a New York marriage license.  Alternatively plaintiff sought damages for fraud and conversion of a $25,000 engagement ring. A 20-minute ceremony was performed by Ms. Sholeh Sham, who now says she is not a member of the clergy and had no authority to marry the couple. Plaintiff however claims the marriage was valid under NY Domestic Relations Law Sec. 12 that validates marriages solemnized "in the manner heretofore used and practiced" by a particular religious denomination. The court said in part:

The court need not decide at this point whether it is possible for the court to determine the validity of the purported marriage on neutral principles. The ultimate issue is whether the ceremony meets the requirements set forth in DRL §12. Plaintiff argues that, in Defendant's denomination, no particular religious leader must solemnize a wedding ceremony. Under New York law, an officiant at a religious wedding ceremony need not be limited to a traditional concept of a member of the clergy or a minister ordained by a religious order..... Whether Ms. Shams was qualified to solemnize the marriage is an issue of fact....

The court also allowed plaintiff to move ahead with his claim of fraud, saying:

Here, the complaint includes detailed allegations to the effect that the Defendant accepted Plaintiff's marriage proposal and engagement ring on July 29, 2009...; that the Defendant told him that her family wanted to select the wedding  officiant to be certain that the marriage would be recognized in the Islamic Republic of Iran and valid under Iranian law.... 

... Plaintiff alleges that Defendant convinced him that Ms. Shams was authorized to marry them at the time she officiated at the September 4, 2010 Ceremony, and that they were actually married on September 4, 2010. Only after years of purported marriage did Defendant tell Plaintiff they were not married.

Former Kosher Supervisor At Manischewitz Sues Over Pressure To Compromise Standards

A lawsuit was filed Wednesday in state court in New York by Rabbi Yaakov Horowitz who was a kosher supervisor for the Union of Orthodox Jewish Congregations ("OU") and who certified products of Manischewitz Co.-- a major producer of Passover foods-- for more than 20 years.  As reported by NJ Advance Media and AP, the suit, filed just days before Passover, claims that Horowitz was forced to take a long leave of absence after complaining that he was being pressured by the OU to be more lax in his inspections of certain products.  Horowitz claims that OU cooperated because it was afraid that Manischewitz would move to a different kosher certifying agency.  Manischewitz denies the charges. The lawsuit seeks millions of dollars in damages for emotional distress and damage to reputation.

White House Passover Seder Will Be Late

Passover begins this evening.  President Obama has made it a practice to host a Passover Seder in the White House every year, building on a Seder he attended in Pennsylvania during the 2008 primary season when he was first running for President.  That Seder, in a hotel, was organized by Jewish members of his campaign staff. The Forward reports that this year the President's Seder will be late since he is in Saudi Arabia through this weekend attending a regional cooperation summit.  So the White House Seder will be held next week, still during Passover but not on one of the first two nights when Seders are usually held.

UPDATE: Here is the President's Passover message to the Jewish community, noting that this year will be their last Seder in the White House.

Louisiana Governor Rescinds Earlier Executive Order Protecting Discrimination Against Gay Couples

Last week, Louisiana Governor John Bel Edwards signed Executive Order No. JBE 2016-11 (April 13, 2016) (full text) barring state agencies and offices from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability or age.  The executive order also requires that all state contracts include a similar provision barring the contractor from discriminating. However, this does not apply to contracts with religious organizations or religious educational institutions.  The order rescinds an executive order issued last year by then-governor Bobby Jindal prohibiting the denial of benefits or government contracts to anyone who acts in accordance with a religious belief that marriage should be only between one man and one woman. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

6th Circuit Dismisses County Clerk's Suit As Moot

In Miller v. Davis, (6th Cir., April 19, 2016), the U.S. 6th Circuit Court of Appeals dismissed as moot the appeal by Rowan County, Kentucky, Clerk Kim Davis seeking a preliminary injunction against a requirement that she issue marriage licenses to same-sex couples in violation of her religious beliefs.  The court said:

On December 22, 2015, the newly-elected Governor of Kentucky issued an executive order revising Kentucky's marriage license form to eliminate the need for the name and signature of the county clerk. Davis's counsel issued a press release stating that the revised form will permit Davis and the other county clerks "to do their jobs without compromising religious values and beliefs."

The Louisville Courier-Journal reports on the decision.

Suit Challenges Cross At Site of Historic Spanish Mission

The Freedom From Religion Foundation this week filed suit in a California federal district court challenging the constitutionality of a 14-foot tall granite Latin cross in Santa Clara's Memorial Cross Park.  The complaint (full text) in Freedom From Religion Foundation v. City of Santa Clara, (ND CA, filed 4/20/2016), says that the cross was donated and placed on city-owned property in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. The site continues to be maintained by the city. Plaintiff claims that the city's actions violate the Establishment Clause of the federal and state constitutions as well as the "no aid" clause of California's constitution.  FFRF issued a press release announcing the filing of the lawsuit and containing a photo of the disputed marker.

Parties File Supplemental Reply Briefs With Supreme Court In Zubik Case

Yesterday the petitioners and respondents both filed Supplemental Reply Briefs with the U.S. Supreme Court in Zubik v. Burwell, the case challenging the government's compromise for religious non-profits that object to including contraceptive coverage in their employee health plans.  The briefs make it clear that there is not agreement between the parties on an alternative compromise. The petitioner's brief (full text) says in part:

If petitioners were truly exempt from the mandate, and those companies were to offer their employees the kind of truly separate coverage that petitioners have described—i.e., “a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication”—then petitioners would no longer have a RFRA objection.

The government's brief (full text) counters:

[P]etitioners assert that it is not enough that insurers provide that coverage entirely outside petitioners’ health plans and without their involvement, as the accommodation already requires. Petitioners also insist that the coverage must consist of contraceptive-only insurance policies, not direct payments for contraceptives. And they add that women must take affirmative steps to enroll, and cannot be covered automatically.

RFRA does not give petitioners the right to insist upon those new conditions. The statute simply does not entitle them to dictate the terms of insurers’ separate dealings with women.

School District Will End Bus Scheduling Around Before-School Religion Classes

ACLU of Illinois yesterday announced an agreement with the Teutopolis Illinois School District will end its practice of scheduling buses to take all students to Teutopolis Grade School an hour early so that they can attend before-school Catholic religious classes. The agreement also creates an after-school activity period in which religious classes will be only one choice.

Lay Minister Sues Georgia Health Department For Employment Discrimination

As reported by The Blaze, a doctor and public health expert who was dismissed from his position with the Georgia Department of Public Health within two weeks of his hiring has filed a religious discrimination suit in federal district court in Georgia.  The complaint (full text) in Walsh v. Georgia Department of Public Health, (ND GA, filed 4/20/2016), contends that Eric Walsh's position was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. In the sermons, he criticized Catholicism, called homosexuality sinful and characterized evolution as a religion created by Satan. The suit seeks damages, reinstatement and injunctive relief for violations of Title VII of the 1964 Civil Rights Act and the 1st and 14th Amendments. A statement from a spokesperson for the Georgia Department of Public Health said that the withdrawal of a conditional offer to Walsh had nothing to do with his religious views, but instead was triggered by a finding that Walsh failed to disclose outside employment to his prior public health agency employer in California.

Suit On Wearing Hijab During Traffic Offense Booking Settled

MLive reported yesterday on the settlement of a lawsuit brought by a Muslim woman against Oceana County, Michigan sheriff's officials for allegedly requiring her to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation. (See prior posting.) Sheriff's officials say a number of the woman's allegations were exaggerated or inaccurate.  Under the settlement, no money was paid, but the sheriff's office did agree to create a policy for treatment of inmates wearing religious headwear. The suit was dismissed on April 18.

Suit Challenges School Voucher Program That Excludes Religious Schools

In a suit filed yesterday in a Colorado federal district court, parents of school children challenged the School Choice Grant Program adopted last month by the Douglas County, Colorado, Board of Education because it excludes participation by religious private schools.  In a fragmented decision, the Colorado Supreme Court last year struck down an earlier school choice program adopted by the county which included religious schools. (See prior posting.) Yesterday's complaint (full text) in Thomas v. Douglas County Board of Education, (D CO, filed 4/19/2016), contends that exclusion of religious schools violates the Free Exercise, Establishment, Equal Protection, Due Process, and Free Speech clauses of the U.S. Constitution.  Institute for Justice issued a press release announcing the filing of the lawsuit.

10th Circuit: Challenge To Kansas School Science Standards Dismissed on Standing Grounds

In COPE v. Kansas State Board of Education, (10th Cir., April 19, 2016), the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12.  Plaintiffs claimed that the State Board’s adoption of the Standards communicated a religious message, and their implementation will result in anti-religious instruction.  The court said in part:

[T]he Standards do not condemn any or all religions and do not target religious believers for disfavored treatment. And COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview. Thus, COPE’s allegations regarding adoption amount to psychological consequences produced by observation of conduct with which it disagrees.... This injury does not suffice....

Mississippi Governor Signs Church Protection Act

Last Friday (April 15) Mississippi Governor signed into law H.B. 786, the Mississippi Church Protection Act (full text) (legislative history).  The new law allows houses of worship to establish security programs under which designated members are authorized to carry firearms to protect the congregation. The state is authorized to issue licenses to carry concealed pistols, rifles or stun guns to members of such programs, if they meet specified conditions.  A person who has been issued such a permit and has completed a safety training course  may raise as a defense in any criminal prosecution the he or she was acting under such a program. Reuters has additional background. [Thanks to Center for Inquiry for the lead.]

4th Circuit: Title IX Requires School Rest Room Access On Basis of Gender Identity

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex.  The school board adopted the policy in order to overturn accommodations made by a high school for the student, and which had been implemented for 7 weeks without incident.  The school board policy called instead for alternative private facilities for transgender students. Citizens speaking in favor of the school board policy at a meeting considering it expressed fears about privacy, and even expressed concern that "non-transgender boys would come to school wearing dresses in order to gain access to the girls’ restrooms."

In G.C. v. Gloucester County School Board, (4th Cir., April 19, 2016), the majority opinion written by Judge Floyd held that the U.S. Department of Education's interpretation of its own regulations is entitled to deference. A DOE interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity.  A concurring opinion by Judge Davis suggested that the appeals court should have entered a preliminary injunction against the school board instead of remanding the case to the trial court.  Judge Niemeyer dissenting argued in part:

This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.

AP reporting on the decision quotes North Carolina Law Professor Maxine Eichner who says that the decision also impacts North Carolina's recently enacted law regulating the use of public school rest rooms by transgender individuals.  North Carolina is in the 4th Circuit.

U.S. Commission on Civil Rights Condemns Recent State Religious Liberty Bills

Yesterday the U.S. Commission on Civil Rights issued a statement (full text) condemning recent state enactments and proposals protecting religious liberty at the expense of equal treatment for the LGBT community.  The statement reads in part:

Religious freedom is an important foundation of our nation. However, in the past, ‘religious liberty’ has been used to block racial integration and anti-discrimination laws. Those past efforts failed and this new attempt to revive an old evasive tactic should be rejected as well. The North Carolina and Mississippi laws, and similar legislation proposed in other states, perverts the meaning of religious liberty and perpetuates homophobia, transphobia, marginalizes the transgender and gay community and has no place in our society.

The Commission said that it will shortly release a new report on the issue of religious liberty.

Two members of the 8- member Commission (Gail Heriot and Peter Kirsanow) issued a separate statement (full text) in their individual capacities asking their Commission colleagues "to please take a deep breath."  They argued in part:

none of [the state bills] deserves to be referred to in the derisive terms used by the Commission majority. Those that deal with religious liberty issues are not merely using religion as a “guise” or “excuse” as the Commission majority alleges. All of them address real issues in reasonable ways; none is simply an attack on the LGBT community.

This separate statement was not posted on the Commission's website, but instead on the website of The New American Civil Rights Project with a link to the statement appearing in an ADF press release.

New Resource On RLUIPA Land Use Cases

The Dalton & Tomich law firm announced yesterday that it has posted on its website the first comprehensive list of RLUIPA land use cases along with basic information about the claims involved. It has also posted a bibliography of leading articles on RLUIPA's land use provisions.

British Judge Rules In Muslim Parents' Dispute Over Sons' Circumcisions

In Exeter (county Devon) in England, a family court judge has ruled that a Muslim father cannot have his 4 and 6 year old sons circumcised over the objection of the boys' mother who is now separated from the father.  As reported yesterday by The Plymouth Herald, the father, a devout Muslim living in England but who was born in Algeria, argued that circumcision would be in accordance with his religious beliefs and in the boys' best interests. The judge said that she is deferring any decision on ordering the circumcision until the boys are old enough to make mature choices on their own, and are able to appreciate the consequences and longer-term effects of their decisions.  However this does not mean that they must reach adulthood before making their decisions. The judge said in part:

First and foremost, this is a once and for all, irreversible procedure.  There is no guarantee that these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their father, although that may very well be their choice.

SSI Benefit Formula Does Not Violate Free Exercise Rights

In Herron v. Social Security Administration, 2016 U.S. Dist. LEXIS 50343 (ED VA, April 14, 2016), a Virginia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 51224, March 10, 2016) and dismissed a free exercise and other constitutional challenges to the manner in which SSI benefits are computed.  Under Social Security rules, if an SSI recipient lives in the same household as his or her spouse, a portion of the spouse's income may be attributed to the SSI recipient in computing benefits.  Plaintiff Bridget Herron claimed that this rule requires her to live with her fiance before (or without) marriage, in violation of her religious beliefs, in order to avoid a reduction in benefits.

As to Herron's allegation that the SSA [Social Security Administration] policies interfere with the free exercise of her religious beliefs, the SSA determines benefits based on income, and the policies were not "undertaken for religious reasons." ... If Herron wishes to marry in accordance with her religious beliefs, the SSA's policies do not prevent her from doing so. Because Herron fails to allege facts sufficient to challenge the rationality of the SSA's policies, she fails to plausibly allege the elements of a violation of her constitutional rights as to her right to marry and her right to the free exercise of her religious beliefs.

The court also concluded that Herron had not exhausted her administrative remedies.