Recent Prisoner Free Exercise Cases

In Schwartz v. Korn, 2019 U.S. Dist. LEXIS 38486 (ED TN, March 11, 2019), a Tennessee federal district court allowed an inmate to move ahead with his complaint that his food is not being prepared according to kosher requirements and he does not receive the same number of meals as other inmates.

In Khan v. Barela, 2019 U.S. Dist. LEXIS 38496 (D NM, March 11, 2019), a New Mexico federal district court dismissed a Muslim inmate's complaint that he was not provided  a clock, prayer schedule, or Muslim calendar, was deterred from participating in Ramadan and was not allowed to leave the pod on three occasions when Christian sermons were being delivered.

In Hardeman v. Trammell, 2019 U.S. Dist. LEXIS 39070 (ED OK, March 12, 2019), an Oklahoma federal district court dismissed an inmate's claim that limits on the amount of property that an inmate can possess led to confiscation of some of his religious books.

In Orum v. Michigan Department of Corrections, 2019 U.S. Dist. LEXIS 39278 (WD MI, March 12, 2019), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 222616, Dec. 11, 2018), and in a case in which a Jewish inmate complained that he was denied a religious diet and was retaliated against for filing a grievance about it, the court dismissed a number of plaintiff's claims but permitted him to move ahead with some of his RLUIPA and retaliation claims.

In Lombardo v. Freebern, 2019 U.S. Dist. LEXIS 39355 (SD NY, March 11, 2019), a New York federal district court dismissed a suit filed by a Jewish patient confined at a psychiatric facility. The suit claimed he was deprived of grape juice; denied access to his religious books and items; his conversation with Rabbi Schwab was interrupted; the menorah was broken; he was unable to attend the Passover Seder and the Eid ul-Fitr feast.

In Gates v. LeGrand, 2019 U.S. Dist. LEXIS 39766 (D NV, March 12, 2019), a Nevada federal district court accepted in part a magistrate's recommendation and allowed a Wiccan inmate to move ahead on his equal protection, but not his free exercise or due process, claim growing out of the denial of incense that he had been permitted to order.

Suit Seeks Change In Allegedly Anti-Semitic High School Curriculum

A suit seeking a writ of mandamus was filed last week in a Massachusetts state trial court against the city of Newton schools seeking a change in the high schools' history curriculum. The 60-page complaint (with over 400 pages of attachments and exhibits) (full text) in Dechter v. Newton School Committee, (MA Super. Ct., filed 3/11/2019) alleges in part:

Anti-Semitism is a deadly hatred. Defendants either disagree with this statement or share in this hatred because, for years, they have stubbornly refused to remove anti-Semitic and anti-Israel materials from the history lessons that they teach in the high schools of the City of  Newton. Despite significant community concerns, scholarly findings of anti-Jewish bias, and formal citizen requests for remedial action, Defendants have categorically and repeatedly refused to remedy the teaching of false and hateful stereotypes about Israel, Israelis, and the Jewish people. These refusals are not simply indecent and vile: they are also illegal under Massachusetts education and civil rights laws.

Newton Wicked Local reports on the lawsuit. (See prior related posting.)

ERISA Pre-Empts Jesuit Order's Claim For Proceeds of Priest's Retirement Account

In Wisconsin Province of the Society of Jesus v. Cassem, (D CT, March 18, 2019), a Connecticut federal district court dismissed breach of contract claims brought by a Jesuit Province against relatives of a deceased Jesuit priest in a suit over the proceeds of the priest's retirement accounts.  Four years before his death, the priest changed the beneficiaries of the accounts from his Jesuit Order to two of his relatives. The court describes the claim at issue:

Plaintiff alleges that the change in beneficiary designation was improper because Fr. Cassem’s vows prevented him from legally acquiring personal property and, therefore, he never owned the Accounts. Plaintiff alleges that “Fr. Cassem’s final vows constitute an enforceable contract among and between the Province and Fr. Cassem, through which Fr. Cassem fully and finally renounced and assigned any and all property then owned or later acquired to the Province.”... The Province argues that because Fr. Cassem was not entitled to retain or direct property for the benefit of any party other than the Province, the original designation of the Province as the beneficiary of the Accounts remains valid and enforceable. 

The court held, however, that plaintiff's contract claim is pre-empted by ERISA, saying in part:

The statute is intended to protect beneficiaries relying on long-accumulated benefits from having to fight challenges to those benefits under disparate standards.

The court rejected the Order's argument that ERISA pre-emption violates its rights under the Religious Freedom Restoration Act, saying in part:

whether or not the statute can apply to cases between private parties, RFRA certainly cannot be used as a procedural mechanism to legitimize a cause of action that contravenes federal law for a plaintiff that is contesting dismissal.... In any event, even if RFRA is applicable in the present case, it does not preclude ERISA preemption because ERISA does not impose a “substantial burden” on Plaintiff’s free exercise of religion.

Suit Challenging San Diego Schools' Anti-Islamophobia Program Is Settled

Freedom of Conscience Defense Fund announced Monday that it has finalized a settlement agreement (full text) with the San Diego Unified School District, resolving a lawsuit that it filed in 2017 challenging an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  (See prior posting.)  According to FCDF:

Under the terms of the settlement agreement, the District distributed a policy memo to area superintendents and principals regarding the First Amendment’s "limits on the conduct of public school officials as it relates to religious activity."

West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

South African Court Invalidates Dutch Reformed Church's LGBT Policy

In South Africa, a 3-judge panel of the North Gauteng High Court set aside as unlawful and invalid a decision on same-sex relationships made by the General Synod of the Dutch Reformed Church during the Synod's November 2016 meeting. That decision reversed a 2015 policy that recognized same-sex civil unions and allowed the ordination of gays and lesbians.  In Gaum v. Van Rensburg, S.A. High Ct., March 8, 2019), the court said in part:

The Church denied that the 2016 decision prevents the participation of the LGBTQIA+ community in the church community, or that it impedes their private lives, or that the decision violates their constitutional rights.... On behalf of the Church it was submitted that the 2016 decision did not restrict Gaum’s right to freedom of association; Gaum is free to join another Church that interprets the Bible in the way that Gaum does....

The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church....

There is an argument to be made that a Court cannot prescribe who must be appointed as a Minister in a Church. But, if a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the conduct of the Church....

The threshold requirement in section 36 of the Constitution is that any limitation of a fundamental right must be “law of general application …” Where a church discriminates, it constitutes private discrimination, with the law of general application not likely to apply.

eNCA reports on the decision.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)

10th Circuit: Suit Against FLDS Leader Warren Jeff's Lawyers Can Move Ahead

In Bistline v. Parker, (10th Cir., March 14, 2019), the U.S. 10th Circuit Court of Appeals in a 2-1 decision reversing a district court's dismissal of the case, allowed various former members of the polygamous FLDS Church to move ahead with claims against the law firm that represented FLDS Prophet Warren Jeffs.  The court, in its 72-page opinion, summarizes plaintiffs' allegations:

Plaintiffs allege that defendants: (1) directly worked with Mr. Jeffs to create a legal framework that would shield him from the legal ramifications of child rape, forced labor, extortion, and the causing of emotional distress by separating families; (2) created an illusion of legality to bring about plaintiffs’ submission to these abuses and employed various legal instruments and judicial processes to knowingly facilitate the abuse; (3) held themselves out to be the lawyers of each FLDS member individually, thus creating a duty to them to disclose this illegal scheme; and (4) intentionally misused these attorney-client relationships to enable Mr. Jeffs’ dominion and criminal enterprise.

On plaintiffs' legal malpractice claim the majority said the district court should determine whether a lawyer-client relationship existed between defendants and various plaintiffs, saying:

If individuals have been cut off from outside resources because of sincerely held religious beliefs and have been actively and repeatedly deceived as to an attorney’s responsibilities and allegiances towards them personally, it is plausible that they reasonably believed they were individually and collectively represented by that attorney.

The district court had dismissed many of plaintiffs' claims on statute of limitations grounds. The Court of Appeals reversed, saying in part:

[D]efendants were allegedly tortfeasors who actively concealed wrongdoing from plaintiffs who plausibly contend they did not have enough knowledge to support a duty to inquire. Plaintiffs have alleged facts to support their claim that defendants had a direct fiduciary relationship of trust to plaintiffs, which they intentionally exploited to mislead plaintiffs over an extended period of time and arguably up to the time plaintiffs filed this action. The fraudulent concealment doctrine thus may operate to toll the limitations periods for plaintiffs’ claims of legal malpractice, breach of fiduciary duty, and civil conspiracy, making it inappropriate to dismiss these claims at this stage.

The court also allowed certain plaintiffs to move ahead with claims under the Trafficking Victim Protection Reauthorization Act. Judge Briscoe filed a dissenting opinion. Courthouse News Service reports at greater length on the decision.

Certiorari Denied In Historic Touro Synagogue Dispute

The U.S. Supreme Court today denied review in Congregation Jeshuat Israel v. Congregation Shearith Israel, (Docket No. 18-530, certiorari denied 3/18/2019). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue, and a pair of historic silver Torah ornaments worth some $7 million, are owned by New York's Shearith Israel congregation. (See prior posting and denial of en banc review.) Providence Journal reports on the Supreme Court's denial of certiorari.

Suit Challenging End of School Yoga Program Moves Ahead

AP reports that a Georgia federal district court judge refused Friday to dismiss an Establishment Clause suit against the Cobb County (GA) School District. The suit alleges the school district ended a yoga program and transferred an elementary school assistant principal in response to parents who objected to the yoga program as inconsistent with their Christian religious beliefs.  The suit brought by former Bullard Elementary School assistant principal Bonnie Cole will now move to trial.  AP reports in part:

During the 2014-2015 school year, Cole said she implemented breathing and stretching exercises based on yoga and meditation in classrooms as a way of reducing stress and encouraging relaxation....

According to the lawsuit, upset parents held a 2016 prayer rally for ‘‘Jesus to rid the school of Buddhism.’’

UPDATE: Here is the full text of the opinion and additional pleadings in Cole v. Cobb County School District (ND GA, March 19, 2019).

Recent Articles of Interest

From SSRN:

• Paula A. Franzese & Angels Carmella, Housing and Hope: Property Law and Catholic Social Teachings, (Forthcoming in Christianity and Private Law (Cochran & Moreland, eds.) (Cambridge Press)).
• Thomas Charles Berg, Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good , (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press 2018)).
• Thomas Charles Berg, Religious Freedom and Nondiscrimination, (50 Loyola University Chicago Law Journal 181 (2018)).
• Lloyd Hitoshi Mayer, When Soft Law Meets Hard Politics: Taming the Wild West of Nonprofit Political Involvement, (45 Journal of Legislation (2019, Forthcoming).
• Brian Bird, The Call in Carter to Interpret Freedom of Conscience, (2018) 85:2 Supreme Court Law Review 107-141.
• Tyler Broker, Church And State Originalism,(University of Memphis Law Review, Forthcoming).
• Lloyd Hitoshi Mayer, The Promises and Perils of Using Big Data to Regulate Nonprofits, (94 Washington Law Review (2019, Forthcoming)).

Fron SSRN (Non-U.S. Law):

• Azadeh Dastyari, Let the Asylum Seekers Stay: Strengths and Weaknesses of Church Sanctuary as a Strategy for Law Reform, (Monash University Law Review, Forthcoming)).
• Patrick Quirk, The Undefined Remains Unprotected: Tensions Between Conscience and the Law in Germany by Way of Joseph Isensee, (Tulane Journal of International & Comparative Law, Vol. 27, No. 1, 2018).
• Bhavya Gupta, Secularism as an Ideology: A Global and Indian Perspective, (November 16, 2018).

From SSRN (Islamic Law);

• Jeffrey A. Redding,The Pakistan Transgender Persons (Protection of Rights) Act of 2018 and Its Impact on the Law of Gender in Pakistan, (February 22, 2019).
• Nafis Alam, Islamic Finance and Business: Capital, Commerce, & Careers, (Proceedings of Harvard University Muslim Alumni Islamic Finance Conference, 2018).
• Saadiya Suleman, Innocence of Muslims: Blasphemy, Islam and Public Disorder - A Holy Analysis, (ILI Law Review Winter Issue 2018 Vol. II).

From SmartCILP:

• Joshua C. Wilson & Amanda Hollis-Brusky, Higher Law: Can Christian Conservatives Transform Law Through Legal Education?, 52 Law & Society Review 835-870 (2018).

Catholic Student Who Objects To Chicken Pox Vaccination Requirement Sues

ABC News reports on a state court lawsuit filed last week against the Northern Kentucky Health Department by a high school student who has religious objections to receiving the chicken pox vaccine. There have been 32 cases of chicken pox since February at Our Lady of the Sacred Heart Elementary School.  To stop the spread, health officials have, among other things, ordered the related Assumption Academy to bar all students who are not vaccinated or otherwise immune from the disease from participating in extra-curricular activities.  Subsequently health officials ordered the schools to exclude all non-immune students entirely from school until the spread ends, and to end other outside activities until then.  Eighteen year old Jerome Kunkel and his family, who are conservative Catholics, object to the vaccine because it was originally developed in the 1960's using cell lines from two aborted fetuses.

7th Circuit: Parsonage Allowance Exclusion Is Constitutional

In Gaylor v. Mnuchin, (7th Cir., March 15, 2019), the U.S. 7th Circuit Court of Appeals rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. The court noted that the Treasury Department asserted that "the survival of many congregations hangs in the balance." Applying the Lemon test, as well as the historical significance test, the court said part:

§107(2) is simply one of many per se rules that provide a tax exemption to employees with work-related housing requirements.... Congress’s policy choice to ease the administration of the convenience-of-the-employer doctrine by applying a categorical exclusion is a secular purpose, not “motivated wholly by religious considerations.”

....  The government argues Congress passed § 107(2) because providing the tax exemption only to ministers given in-kind housing tended to exclude ministers of smaller or poorer denominations....  [W]e take the government at its word, which resolves this question. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

The third secular legislative purpose cited by the Treasury Department is to avoid excessive entanglement with religion. To the government, Congress’s decision to exempt ministers from the proof requirements of § 119(a)(2) prevents the IRS from conducting intrusive inquiries into how religious organizations use their facilities....

[T]he primary effect of § 107(2) is not to advance religion on behalf of the government, but to “allow[] churches to advance religion, which is their very purpose.” ...

FFRF claims § 107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter. We conclude § 107(2) is constitutional.

Milwaukee Journal Sentinel reports on the decision.

Terrorist Shootings By White Supremacist In 2 New Zealand Mosques Kill 49

The Sun has details of the mass shootings by a white supremacist at two mosques in New Zealand today which killed 49 and injured 48 others, 20 of them critically. The Guardian and Perth Now describe the killer's rambling 74-page manifesto which he titled The Great Replacement.  The full text of the manifesto is available here.

Recent Prisoner Free Exercise Cases

In Janny v. Gamez, 2019 U.S. Dist. LEXIS 34932 (D CO, March 5, 2019), a Colorado federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 222320, Sept. 20, 2018) and allowed a parolee who is an atheist to move ahead with objections to the requirement that he stay at a Rescue Mission and take part in its religious activities.

In Kruger v. Lashbrook, 2019 U.S. Dist. LEXIS 36031 (SD IL, March 5, 2019), an Illinois federal district court dismissed an inmate's free exercise claim growing out of the refusal to allow him to receive religious greeting cards that he had ordered. Other religious claims were severed into a new case.

In Knight v. Shults, 2019 U.S. Dist. LEXIS 35791 (SD MS, March 6, 2019), a Mississippi federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 36936, Feb. 11, 2019) and refused to dismiss an inmate's claim under RFRA that he was not provided a requested Nation of Islam Ceremonial Meal.

In Fisherman v. Schaefer, 2019 U.S. Dist. LEXIS 36821 (D MN, March 7, 2019), a Minnesota federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 37752, Jan. 16, 2019) and dismissed an inmate's complaint that he was denied a vegan diet.

In Larry v. Goldsmith, 2019 U.S. Dist. LEXIS 38128 (ED WI, March 11, 2019), a Wisconsin federal district court dismissed a Muslim inmate's complaint about the one-time enforcement of a rule prohibiting praying on the floor between bunks when the dayroom is closed.

In Wilcox v. Erie County Prison, 2019 U.S. Dist. LEXIS 38282 (WD PA, March 11, 2019), a Pennsylvania federal district court dismissed an inmate's complaint that his kosher diet was rescinded as punishment for his eating kosher foods from another inmate's tray.

Rastafarian's Challenge To Marijuana Enforcement Is Rejected

In Lepp v. Yuba County, 2019 U.S. Dist. LEXIS 39855 (ED CA, March 11, 2019), a California federal magistrate judge recommended dismissing plaintiffs' contention that his ability to practice his Rastafarian religion was substantially burdened when state authorities seized his marijuana, and when they failed to promulgate a religious exemption to allow marijuana use.

Recent Prisoner Free Exercise Cases

In Hatton v. Piper, 2019 U.S. Dist. LEXIS 32219 (D MN, Feb. 28,2019), a Minnesota federal district court adopted with modifications a magistrate's report (2019 U.S. Dist. LEXIS 33010, Jan. 23, 2019) and dismissed complaints by civilly committed sex offenders that they were not permitted to attend Native American religious services.

In Long v. Somerset County Jail, 2019 U.S. Dist. LEXIS 33508 (D NJ, March 4, 2019), a New Jersey federal district court dismissed, with leave to amend, a complaint by a Muslim pre-trial detainee that the jail did not permit Friday prayer services, had insufficient accommodations for Ramadan, did not provide prayer rules, kufis or prayer oil, and serve kosher instead of halal meals.

In Burtton v. Kenosha County Jail, 2019 U.S. Dist. LEXIS 33830 (ED WI, March 4, 2019), a Wisconsin federal district court allowed a Jewish inmate to move ahead with his complaint that he was removed from the kosher meal program.

In Heid v. Mohr, 2019 U.S. Dist. LEXIS 33895 (SD OH, March 4, 2019), in a lengthy opinion, an Ohio federal district court in denying a preliminary injunction upheld a prison's prohibiting inmate access to material of the Christian Separatist Church. The judge also denied a motion for recusal.

In Mason v. Ryan, 2019 U.S. Dist. LEXIS 33962 (D AZ, March 4, 2019), in a footnote in an opinion dealing largely with other matters an Arizona federal district court rejected an inmate's complaint that he was denied access to religious programs and services.

In Young v. Rodriguez, 2019 U.S. Dist. LEXIS 34235 (ED CA, March 4, 2019), a California federal magistrate judge refused to grant summary judgment to defendants on a Rastafarian inmate's 1st and 14th Amendment claims growing out of the refusal to allow him to wear his Crown into the prison visitation room.

Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.