Muslim Inmate Wins $25,000 Damages Against Correctional Officer

In an unusual success for a prisoner case, a Nevada judge has awarded $15,000 in compensatory damages and $10,000 in punitive damages against a prison correctional officer in a suit by a Muslim inmate.  In Howard v. Foster, 2018 U.S. Dist. LEXIS 151629 (D NV, Sept. 6, 2018), the court described the correctional officer's conduct:

On the morning of August 19, 2012, somewhere between 40 and 60 Muslim inmates were holding Eid prayer services in the SDCC gymnasium....  The room was quiet enough for the individual leading the prayer to be heard by the other prayer participants.

During the prayer service, however, [correctional officer] Dicus began talking loudly enough for Howard and other prayer participants to hear. At first, Dicus asked the other officers why the inmates were in the gymnasium for prayer services. Then, Dicus began cursing and disparaging Muslims.... Dicus stated that he hoped Muslims would die....

Howard heard Diggle warn Dicus that the Muslim inmates would file grievances regarding his statements. Dicus responded, "Mother fucker grievance. . . . . I kill[ ] Muslims, you know. . . . They need to get their ass up out of here. What the hell we allowing them to be down there doing whatever they doing?"...

Dicus' outburst began very early on in the Eid prayer service and made the service unbearable to the participants. Because Dicus' comments were so disruptive, the Muslim inmates were not able to complete the  Eid prayer service, and they did not have the Eid feast that they had planned to share in after prayer.

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

Sikhs Ask DOE For Title VI Coverage

According to Huff Post, United Sikhs has asked the U.S. Department of Education to treat Sikhs as an ethnic group as well as a religion so that discrimination against Sikhs would fall under Title VI of the 1964 Civil Rights Act. That provision bars racial, but not religious, discrimination by educational institutions. As previously reported, the Department of Education has decided to reopen a case charging Rutgers University with allowing a hostile environment for Jewish students, defining Jews as an ethnic group.

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Russian Law Enforcement Targets Jehovah's Witnesses

According to a Forum 18 report yesterday, in Russia since January of this year law enforcement agencies have been raiding the homes of Jehovah's Witnesses, charging many with violating the country's ban on extremist organizations. So far some 69 individuals are under investigation or on trial. Most of the cases follow on the 2017 ban on all activities of the Jehovah's Witness Administrative Center and its local affiliates.

Teacher Lacks Standing To Challenge Contraceptive Mandate Exemptions

In Campbell v. Trump, (D CO, Sept. 11, 2018), a Colorado federal district court held that a teacher in a private school lacks standing to challenge the Trump administration rules that allow employers to refuse on religious or moral grounds to provide health insurance coverage for contraceptive services. Plaintiff currently has coverage in her employer's policy but argues that she fears her employer might withdraw coverage.  The court held:

There are no factual allegations in the complaint that support an inference that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to constitute an injury in fact under Article III standing principles.

Israeli Court Orders Recognition of Conversion Performed Outside of Official Rabbinate

Haaretz and Times of Israel report today that in a first of its kind decision in Israel, a Jerusalem district court has ordered Israel's Interior Ministry to register as Jewish in the Population Registry a woman converted by a rabbinical court operating outside of the official Rabbinate.  The conversion was performed by Orthodox rabbis through Giyur K’Halakha, a private initiative of prominent religious Zionist rabbis that is less stringent in its conversion requirements.

Suit Charges Catholic Church With Defamation

The Morning Call yesterday reported on a lawsuit filed in a Pennsylvania state trial court by Juliann Bortz based on information which she learned for the first time from the recently released Pennsylvania state grand jury report on sexual abuse by Catholic clergy.  The lawsuit, alleging defamation and intentional infliction of emotional distress, claims that Church officials gathered “irrelevant, unrelated [or] false ‘dirt’ ” on Bortz to discredit her reports of abuse by a priest.

DOE Reopens Case Against Rutgers For Allowing Anti-Semitism On Campus

The New York Times reported yesterday:

The new head of civil rights at the Education Department has reopened a seven-year-old case brought by a Zionist group against Rutgers University, saying the Obama administration, in closing the case, ignored evidence that suggested the school allowed a hostile environment for Jewish students.

The move by Kenneth L. Marcus, the assistant secretary of education for civil rights and a longtime opponent of Palestinian rights causes, signaled a significant policy shift on civil rights enforcement — and injected federal authority in the contentious fights over Israel that have divided campuses across the country. It also put the weight of the federal government behind a definition of anti-Semitism that targets opponents of Zionism, and it explicitly defines Judaism as not only a religion but also an ethnic origin.

Ball State Settles Suit By Pro-Life Student Group

The Muncie Star Press reported last week on the recent settlement of a lawsuit (see prior posting) against Ball State University by "Students for Life at BSU." The suit alleged viewpoint discrimination in distribution of student activity fees. The pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology." Under the Settlement Agreement (full text), the University will adopt new rules that require that student activity fees be allocated in a viewpoint-neutral manner The school will also pay $300 in damages to the student group and pay the group's $12,000 in attorneys' fees to Alliance Defending Freedom.

Religious Themed Ad Reinstated On Football Field Amid Broader Litigation

As previously reported, in February four parents sued the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations. Recently, amidst settlement talks in the litigation, the Benton High School Booster Club sold advertising space on the school's football field to Christ Fit Gym. The business' logo that was placed on the field in the end zone includes a cross and a citation to a bible verse.  KTBS News  and KTAL report that at the recommendation of legal counsel the ad was removed just before the school's homecoming game on Friday, pending consultation with the court. But apparently Christ Fit Gym filed suit in state court against the Booster Club challenging removal of the ad, and a temporary restraining order was issued against the Club.  The Booster Club is not a defendant in the federal lawsuit. The School Board that is a party to the federal lawsuit was not previously aware of the logo, but met yesterday to discuss it.  As reported by Bossier Now, amid increasing pressure the Board, after a two hour executive session, decided to fight the federal lawsuit rather than settle it and to allow back Christ Fit Gym's ad.

RLUIPA Challenge By Catholic High School To Stadium Lighting Rules Rejected

In Marianist Province of the United States v. City of Kirkwood, (ED MO, Sept. 7, 2018), a Missouri federal district court rejected a RLUIPA challenge to a Missouri city's zoning regulation of pole mounted lights in outdoor sports fields.  The challenge was brought by Vianney High School, a Catholic Marianist institution. The court held in part:

Vianney has not demonstrated that its ability to use the lights and sound system constitute a "religious exercise" or that its inability to use the lights and sound system constitutes a "substantial burden" on its religious beliefs.

The court also rejected the school's RLUIPA "equal terms" claim and various state law challenges.

Recent Prisoner Free Exercise Cases

In Young v. Hooks, 2018 U.S. App. LEXIS 25324 (6th Cir., Sept. 5, 2018), the 6th Circuit upheld the dismissal of an inmate's complaint that a correctional officer poured out his prayer oil.

In Whitehead v. Honeycutt, 2018 U.S. Dist. LEXIS 149705 (WD NC, Aug. 27, 2018), a North Carolina federal district court allowed a pre-trial detainee to move ahead with his complaint that his Bible and other Seventh Day Adventist religious books were confiscated.

In Ali v. Romero, 2018 U.S. Dist. LEXIS 149848 (D MD, Sept. 4, 2018), a Maryland federal district court appointed counsel to file an amended complaint naming correct defendants in a suit by an inmate who objects to the failure of a facility to offer daily Muslim religious services.

In Blankenship v. Terry, 2018 U.S. Dist. LEXIS 149863 (SD WV, Sept. 4, 2018), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 150125, Aug. 7, 2018) and dismissed an inmate's complaint that a corrections officer threw his prayer mat on the floor and stepped on it, and that plaintiff was refused a new prayer mat.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 150688 (MD PA, Aug. 31, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that alleged, among other things, that his religious beads were confiscated and that he had his commissary privileges restricted during Ramadan.

In Ackerman v. Washington, 2018 U.S. Dist. LEXIS 150721 (ED MI, Sept. 5, 2018), a Michigan federal district court denied summary judgment for the Michigan Department of Corrections in a suit by Jewish inmates who claim that the kosher meals being provided are not adequately protected against cross-contamination that would make them non-kosher.

In Gill v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 150895 (ED WI, Sept. 5, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that on most days he was served vegan meals instead of Halal meals.

In Trainauskas v. Fralicker, 2018 U.S. Dist. LEXIS 151161 (SD IL, Sept.5, 2018), an Illinois federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 151160, June 18, 2018) and allowed an inmate who is a follower of Asatru to move ahead with his complaint about disciplinary sanctions growing out of his involvement with Asatru organizations.

Trump Holds Pre-Rosh Hashanah Conference Call With Rabbis

Rosh Hashanah begins this evening. The White House has posted a transcript of President Trump's annual conference call with Jewish faith leaders and rabbis held on Thursday. The President said in part:

I send my warmest wishes to the Jewish people in the United States and around the world as we approach the High Holy Days. The Jewish practice of reflection, atonement, and remembrance during this holy period not only strengthens Jewish communities, but inspires all Americans.

 The Forward reports:

President Trump’s annual pre-Rosh Hashanah phone call to Jewish groups on Thursday lasted only 20 minutes but featured four allies singing his praises to an audience far more right-wing than calls under past administrations.

UPDATE: The President and First Lady also, in a Sept. 9  press release, sent greetings to those celebrating Rosh Hashanah.

Challenges To Pension Plan's ERISA Exemption Move On

Last year, the U.S. Supreme Court ruled in favor of three large health care systems whose employees had challenged whether their retirement plans qualified as exempt "church pans" under ERISA. (See prior posting.)  Now in one of the cases on remand, a California federal district court has refused to dismiss further challenges to the pension plan's exemption.  In Rollins v. Dignity Health, (ND CA, Sept. 6, 2018), the court held that plaintiffs can move ahead with their claims that the plan is not properly "maintained" as a church plan and that it is not associated with a church.  The court also refused to dismiss state breach of contract and breach of fiduciary duty claims. The court held that it will reach plaintiffs' Establishment Clause challenge to the church plan exemption only if it concludes that the plan qualifies as a church plan.  If the plan's exemption is not ultimately upheld, the plan may be underfunded by as much as $1.2 billion. (See prior posting.)

11th Circuit Affirms Order To Remove Cross From Park, But Expresses Disagreement With Precedent

In Kondrat'Yev v. City of Pensacola, (11th Cir., Sept. 7, 2018), a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. Two judges each wrote lengthy concurring opinions explaining their disagreement with existing precedent. One of those judges, District Judge C. Ashley Royal sitting by designation on the case, wrote a 53-page concurrence that includes a long history of religious establishments.  Here is an excerpt from Judge Royal's interesting opinion:

[T]he history of the idea of the religious conscience was central to the history of religious freedom in early America and in Europe. But religious conscience was not understood as separate from religious action. It was not simply some psychological phenomenon or something that you had on your mind. Protestants and Catholics did not fight the Wars of Religion for almost 100 years because some religious image made them feel uncomfortable, unwelcome, or uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed, had their ears cropped, or were divested of their property or their rights as citizens because of their state of mind. It was because of their actions and because their actions arose out of their religious convictions. To counter dissidents’ religious actions, churches and governments imposed penalties, and that is what the Establishment Clause was designed to protect against. 

You can listen to this march of horrors, abuse, cruelty, and death and recognize that it was not a walk in the park. And despite the fact that I am careful to avoid trite statements in my orders, all this case is about is a walk in the park.... Some courts have lost sight of why so many fought for so long at such great cost for religious freedom. It was not to protect people from looking at crosses in public parks. That demeans and debases the sacrifices of millions of people....

3rd Circuit Hears Arguments On Cross In County Seal

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. County of Lehigh.  In the case, a Pennsylvania federal district court reluctantly held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  Daily Journal reports on the oral arguments.

Group Lacks Standing To Challenge Charter School Act On Establishment Clause Grounds

In Indiana Coalition for Public Education v. McCormick, (SD IN, Sept. 6, 2018), an Indiana federal district court dismissed on standing grounds a suit by an advocacy organization challenging on Establishment Clause grounds Indiana's Charter School Act. Plaintiff claims that it is unconstitutional for the state to allow a religious college to be an authorizer for public charter schools.  The court said in part:

The Coalition’s Complaint is really a challenge to Indiana’s policies of school choice and of school funding following the student, draped in the clothing of an Establishment Clause challenge. But the Coalition challenges just one recipient of that funding, and it all but admits that its alleged injuries are in no meaningful way caused by the religious character of Seven Oaks’ authorizer. Rather, it is a mere coincidence that Seven Oaks, with which the public school corporations must compete for students, happens to be authorized by a religious institution. The school corporations would face exactly the same funding difficulties (and thus the Coalition would face the same alleged injury) had Seven Oaks been authorized by a secular private college, as permitted by the Charter School Act, instead of Grace College. These observations confirm the gross misfit between the alleged constitutional injury and the Coalition’s requested relief.

New York State Moves On Clergy Sex Abuse

Washington Post yesterday reported:

The New York attorney general’s office has issued subpoenas to every Catholic diocese in the state, becoming the latest U.S. state to embark on an expansive investigation of sex crimes committed and covered up by Catholic priests....

After New York’s subpoenas were issued, and first reported by the Associated Press on Thursday, New Jersey quickly followed, announcing a criminal task force focused on investigating sexual abuse by Catholic clergy. New Mexico launched an investigation this week, and Nebraska and Missouri have inquiries underway.

New York's attorney general yesterday also announced the creation of a  clergy abuse hotline and an online complaint form. All of this activity follows on a much publicized Pennsylvania grand jury report on clergy sex abuse. (See prior posting.)

India's Supreme Court Legalizes Consensual Homosexual Relations

In four separate opinions spanning 493 pages, India's Supreme Court yesterday struck down Section 377 of the India Penal Code insofar as it bans consensual homosexual relationships. In Johar v. Union of India, (India Sup. Ct., Sept. 6, 2018), Justice Misra wrote:

Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

CNN reports on the decision.