Employee Who Objected To Biometric Scanning As Mark of the Beast Wins $150,000 Verdict

The Clarksburg Exponent Telegram reports that a jury in a West Virginia federal district court last Thursday awarded $150,000 in compensatory damages to a former employee of Consol Energy (the mining operation of Consolidation Coal Co.) in a Title VII suit charging failure to accommodate his Evangelical Christian religious beliefs. Beverly R. Butcher Jr., a laborer at the mine, objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. The company however relied on a letter from the manufacturer of the hand scanner assuring that it does not assign the Mark of the Beast, and suggesting that objecting employees scan their left, instead of their right, hand.  The company refused other accommodations suggested by Butcher, and the EEOC sued on his behalf. (See prior posting.) In addition to the jury's damage award, the judge will still determine back and forward pay. Defendants plan an appeal.

UPDATE: The 4th Circuit affirmed the district court's award of damages in U.S. Equal employment Opportunity Commission v. Consol Energy, Inc., (4th Cir., June 12, 2017).

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:

Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.

Law.com reports on the decision.

Suit Challenges USDA's Animal Tagging On Religious Freedom Grounds

Earlier this week, a lawsuit was filed in federal district court in the District of Columbia challenging implementation and enforcement by Michigan of the USDA's National Animal Identification System for cattle. The complaint (full text) in Farm-to-Consumer Legal Defense Fund v. U.S. Department of Agriculture, (D DC, filed Sept. 8, 2008) alleges that the system which uses electronic radio frequency identification tags infringes the religious freedom of four individual plaintiffs in the case. Plaintiffs see the numbering system as the prohibited "mark of the beast" and as infringing their "dominion over cattle and all living things". For two of the Old Order Amish plaintiffs, the system would also force them to use technology in violation of their religious beliefs. The complaint alleges violations of the federal Religious Freedom Restoration Act, Michigan's constitutional protection of free exercise of religion, as well as violations of administrative law and environmental requirements. On Tuesday, Wired reported on the lawsuit. (See prior related posting.) [Thanks to Matthew Caplan for the lead.]

UPDATE: On Nov. 13, the USDA filed 56-page memorandum (full text) in support of its motion to dismiss plaintiffs' claims against USDA. It argues lack of standing and compliance with rulemaking requirements. It also alleges that any burden on religious freedom was caused by co-defendant, the Michigan Department of Agriculture, not by USDA. [Thanks to Jean Dudley via Religionlaw listserv for the lead.]

EEOC Sues Over Company's Refusal To Accommodate Religious Objection To Biometric Hand Scanning

The EEOC filed a lawsuit in a West Virginia federal district court on Monday against Consol Energy and Consolidation Coal Co. charging that they had violated Title VII by failing to accommodate a Christian employee's religious objections to biometric hand scanning to track his time and attendance. According to the Clarksburg Exponent Telegram, Beverly R. Butcher Jr., a laborer at the companies' mining operation, believed that hand scanning involved the Mark of the Beast.  The company, relying on the scanner vendor's interpretation of the Mark of the Beast in Book of Revelation 13:16, offered to allow Butcher to scan his left hand (since the Biblical verse refers only to the right hand). However Bucher wanted instead to either keep written records of his hours or check in and out with a supervisor. The company rejected this, which allegedly led to Bucher retiring earlier than he otherwise would have done.

Believer In Mark of the Beast Entitled To Unemployment Comp

In Kaite v. Unemployment Compensation Board of Review, (PA Commnw. Ct., Nov. 29, 2017), a Pennsylvania appellate court reversed the Unemployment Compensation Board of Review and held that a suspended employee whose unemployment compensation claim was rejected was justified in refusing to comply with an employer's fingerprinting requirement. Petitioner Bonnie Kaite contended that "she was raised to believe that any marking on the hands or head is the mark of the devil and will prevent her from getting into heaven...."  The court went on to say:

The United States Supreme Court has held that a conditioning of the availability of benefits upon an employee’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Sherbert v. Verner, 374 U.S. 398, 406 (1963).

Penn Live reports on the decision. [Thanks to Tom Rutledge for the lead.] 

Title VII Suit Seeks Relief From Biometric Fingerprinting

The Columbia Missourian on Sunday covered an unusual Title VII employment discrimination case brought by a fundamentalist Christian who was fired after he refused to use a time clock that is triggered by his biometric fingerprint. Donny Attaway, a member of New Covenant Faith Center in Independence, Missouri, believes that fingerprinting could be the "mark of the beast" warned against in the New Testament Book of Revelation. The Alliance Defense Fund attorney defending Attaway admits that this is an unusual interpretation of the Biblical passages. Many others believe that the mark of the beast is the number 666, or rely on the passages from Revelation to oppose using a Social Security number for identification. The suit claims that Attaway's employer, QuickTrip, should accommodate Attaway's religious beliefs by permitting him to use his Social Security code at work, as is done for employees with broken fingers.

Court Rejects Religious Challenge To Social Security Numbers

In Hill v. Promise Hospital of Phoenix, Inc., 2010 U.S. Dist. LEXIS 68884 (D AZ, July 7, 2010), an Arizona federal district court rejected plaintiff's complaints about federal laws that require him to provide a potential employer with a social security number. He says that defendant hospital refused to hire him because he would not comply with that requirement. Plaintiff claims that a social security number is an asset of a state-sponsored religion in violation of the Establishment Clause, and that a social security number is the "mark of the beast," the forced use of which violates his right to privacy. In the lawsuit, plaintiff sought to enjoin the federal government from enforcing the laws that require use of a social security number. The court dismissed those claims on sovereign immunity grounds. Insofar as they were based on a religious discrimination claim under Title VII of the 1964 Civil Rights Act, the court found that the federal government's actions did not interfere with plaintiff's employment opportunities. Also plaintiff failed to sue within 90 days after receiving a right to sue letter from the EEOC. Additionally the court concluded that granting relief would involve the interfering with the collection of taxes in violation of the federal Anti-Injunction Act.

$1 In Damages Awarded In Claim That Police ID Card Containted Mark of the Beast

In Brooklyn, New York, a federal judge has awarded damages of only $1 to a school safety officer who was suspended from her job after she refused to be fingerprinted or accept the New York Police Department's new biometric identification card with embedded computer chips. Velma Craig, a nondenominational Christian, believes the card contains the "mark of the beast", warned against in the Book of Revelation. Today's New York Times reports that in 2007, the court granted summary judgment to Craig, finding that the city had "utterly failed" to explain why it could not have accommodated Craig's religious beliefs. Damages were left to a later phase. Last month the court appointed a lawyer for Craig, but he asked to be dismissed after Craig refused to cooperate in preparation for the damages trial. Then, when Craig asked for a delay in the jury trial that was set to start yesterday, the court ruled that if she did not proceed on her own, it would merely award her $1 in damages. Craig agreed to that, but said she would appeal.

Religious Opposition To Furnishing Social Security Number Fails

In Ricks v. State of Idaho Contractors Board, (ID App., Dec. 3, 2018), an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast."

The court rejected on pre-emption grounds Ricks argument that the requirement violates Idaho's Free Exercise of Religion Protected Act (FERPA):

 [T]he operation of FERPA, in the context of the cooperative endeavor between Congress and the Idaho Legislature, does impede 42 U.S.C. § 666(a)(13)’s objective of improving child support enforcement effectiveness by exempting individuals from I.C. § 73-122’s and I.C. § 54-5210’s requirement of providing social security numbers on professional license applications. In other words, an exemption granted by FERPA would make it more difficult to locate a parent who may have outstanding child support obligations through the Federal Parent Locator Service database. Because this amounts to a direct conflict with Congress’s intent in passing 42 U.S.C. § 666(a)(13), 42 U.S.C. § 666(a)(13) preempts FERPA in this context.

The court rejected Ricks' federal RFRA argument because no federal defendant was named. Finally it rejected his First Amendment and state constitution free exercise claims finding that the laws at issue are neutral laws of general applicability. The court also released a summary statement of its holding.

Michigan Court Upholds Social Security Number Requirement For Drivers License

In Champion v. Secretary of State, (MI Ct. App., Oct. 16, 2008), the Michigan Court of Appeals rejected claims under the free exercise and equal protection clauses of the Michigan constitution and required that a religious objector furnish his social security number in order to obtain a drivers license. Plaintiff, while he has a social security number, believes that they are a precursor to the mark of the beast described in the Book of Revelation. The social security number requirement was enacted by Michigan under provisions of the federal Child Support and Establishment of Paternity Act (CSEPA). While Michigan applies the "compelling interest" test to state free exercise claims, the court concluded that the state has a compelling interest in enforcing child support payments. Also, in the court's view, No less restrictive means are available to achieve that compelling interest.

In an interesting footnote, however ,the court rejected the state's alternative argument that it has a compelling interest in obtaining the federal funding that is available only if it complies with CSEPA. The court said: "It would indeed be troubling to conclude that Michigan can, without state constitutional ramifications, effectively burden a citizen's free exercise of religion, or any constitutional right, if sufficient monies are thrown in its direction by the federal government."

Romanian Tribunals Uphold Biometric Passports Over Religious Objections

In Romania, both the Legal Commission of the Senate and the Romania Appeals Court have upheld the Emergency Government Ordinance introducing biometric passports despite protests that the new passports violate religious rights. The face image and fingerprints are digital in the new documents. EDRI reported last week that at the Appeals Court hearing, NGOs that brought the challenge argued that "the introduction of chips into passports affects the right to religion because it changes the name given by God into a figure." Some opponents had also claimed that the new passports included the figure "666", traditionally the mark of the beast from the Book of Revelation. Aurel-Vasile Sime, head of the General Division of passports, said that was not the case, and also said that Romanians had the option to choose temporary one-year passports without biometric elements.

State Bills To Ban Implanted RFIDs Moving Ahead Partly Out of Biblical Concerns

Virginia's House of Delegates yesterday passed by a vote of 88-9 with 1 abstention House Bill No. 53 banning insurers or employers from requiring implantation of microchips into a person's body. According to yesterday's Washington Post, while privacy issues are the main concern, the bill's sponsor Del. Mark L.Cole says he also shares the concern that implanted radio frequency identification tags might be the "mark of the beast" that is described in the Biblical Book of Revelation. He explained: "My understanding -- I'm not a theologian -- but there's a prophecy in the Bible that says you'll have to receive a mark, or you can neither buy nor sell things in end times. Some people think these computer chips might be that mark." Nashville Scene yesterday reported that a similar bill (HB0791) has been introduced into the Tennessee legislature. At a hearing on the bill, critics of the bill suggested that implanted RFIDs might be useful to track Alzheimer's patients or sex offenders.

Recent Prisoner Free Exercise Cases-- Installment #2 For The Week

In Garner v. Kennedy, (5th Cir., April 2, 2013), the 5th Circuit Court of Appeals concluded that the state of Texas had failed to adequately justify under RLUIPA its policy of prohibiting prisoners from wearing beards for religious reasons.

In United States v. Lepp, 2013 U.S. Dist. LEXIS 51262 (ND CA, April 9, 2013), a California federal district court rejected a post-conviction attack on the sentence for possession and manufacture of marijuana imposed on defendant who had claimed that he was a practicing Rastafarian and that marijuana use was a necessary component of his religious practices.

In Neal v. McKune, 2013 U.S. Dist. LEXIS 50769 (D KA, April 9, 2013), a Kansas federal district court dismissed a Muslim inmate's complaint that on several occasions during two Ramadan periods prison officials failed to serve him breakfast early enough, so that he either missed breakfast or was very hurried in being able to eat before dawn.

In Gillis v. Skinner, 2013 U.S. Dist. LEXIS 51112 (WD LA, April 7, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 51131, Feb. 24, 2913) and dismissed an inmate's claim that a corrections officer asked him to leave church services because of his sexual orientation. The court found he was asked to leave because of disruptive behavior.

In Barstad v. Washington State Department of Corrections, 2013 U.S. Dist. LEXIS 51805 (WD WA, April 10, 2013), a Washington federal district court adopted almost all of a magistrate's recommendations (2013 U.S. Dist. LEXIS 51808, March 5, 2013) and dismissed complaints of an inmate, a follower of the Rosicrucian Fellowship, that prison officials violated his rights by eliminating the ovo-lacto vegetarian diet and replacing it with a strict vegan diet. The court also dismissed an added complaints that scanning his identification card in order to get his meal amounted to imposing "the Mark of the Beast," and that eggs and milk were expensive at the prison commissary.

In Sims v. Cabrera, 2013 U.S. Dist. LEXIS 51849 (ED CA, April 9, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that prison officials' refusal to remove his former gang affiliation from his bed card and central file prevents him from freely practicing his religion.

In two related cases, Maynard v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52317 (D ID, April 8, 2013) and Austin v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52318 (D ID, Apri 8, 2013), an Idaho federal district court permitted two inmates to proceed with their claims that terminating them from their volunteer positions aiding seriously ill inmates and otherwise reducing Christian religious activities violated their free exercise, RLUIPA and equal protection rights.

In Jabbar v. Contingency Work Force Solutions, Inc., 2013 U.S. Dist. LEXIS 46661 (D MN, April 1, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 51299, March 4, 2013) and dismissed for failure to exhaust administrative remedies a Muslim inmate's claims that the contract food-service provider failed to provide food that complied with Muslim dietary restrictions by using itemswith alcohol and pork ingredients.

In Smith v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 52547 (WD WA, April 11, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 52625, March 6, 2013) and dismissed a Muslim inmate's objections to the food provided during Ramadan in 2010.

Mandatory Premise Registration Violates Free Exercise Rights of Amish Farmer

In State of Wisconsin v. Miller, (WI Cir. Ct., March 10, 2010), a Wisconsin trial court held that the state's livestock premise registration requirements impose an impermissible burden on the religious beliefs of an Old Order Amish farmer who was cited for failure to comply with the registration provisions. Premise registration violated several Amish beliefs, including requirements they remain isolated from the modern world, that they rely on God not the government, and that they avoid the "Mark of the Beast." Relying on the free exercise protections of the Wisconsin Constitution, the court held that the state failed to establish that its interest in animal health cannot be met by alternative means that are less restrictive of farmer Emanuel Miller's free exercise of religion. The court concluded that alternative voluntary record keeping of the purchase, sale and transfer of animals is actually a more reliable alternative than mandatory premise registration. Tuesday's Milwaukee Journal-Sentinel reports on the decision, indicating that the state will probably file an appeal.

Suit Seeks Religious Exemption From Drivers License Biometric Photo

In Cleveland County, Oklahoma, a woman has filed suit is state court seeking a religious accommodation that would allow her to obtain a driver's license with a low resolution photograph instead of the state-required high-resolution photo that captures biometric data.  The complaint (full text) in Beach v. Oklahoma Department of Public Safety, (OK Dist. Ct., Sept. 21, 2011), says that plaintiff has learned that the required photographs are in a format required by the United Nations International Civil Aviation Organization, and will be placed in a database shared by various jurisdictions.  Plaintiff alleges that she has a sincerely held religious belief that the Bible, in Revelation 13:16-18 and 14:9-11 (passages dealing with the mark of the beast): "explicitly commands believers to not participate  in a global numbering identification system using the number of man, and eternally condemns participation in that system."

The lawsuit seeks a declaratory judgment that the refusal to provide an accommodation violates the Oklahoma Religious Freedom Act and an injunction requiring granting of an exemption.  The suit also claims that the photo requirement infringes plaintiff's reasonable expectation of privacy in her biometric data. A press release from the Rutherford Institute announced filing of the lawsuit.

Plaintiffs Lack Standing To Challenge Procedure For Omitting Social Security Numbers In Drivers Licence Applications

In Baer-Stefanov v. White, 2011 U.S. Dist. LEXIS 19139 (ND IL, Feb. 25, 2011), an Illinois federal district court dismissed for lack of standing a challenge to provisions in Illinois' drivers license law that set up procedures for obtaining a religious exemption so an applicant can obtain a license without furnishing a social security number.  Plaintiffs' personal religious beliefs prevent them from using social security numbers because they consider the numbers the mark of the beast prohibited by Revelations 13. However plaintiffs were informed by an attorney in the Secretary of State's office that an exemption would be granted only if an applicant submitted a state form signed by a religious leader who attested that use of a social security number was barred by the beliefs of  his or her religious sect and that the applicant was a member of that sect. Plaintiffs never actually applied for a license because their religious sect leaves beliefs regarding social security numbers to the individual consciences of members. Instead plaintiffs sued alleging that the limitation on the availability of the exemption violated their free exercise and equal protection rights. The court held that because plaintiffs never applied for a religious exemption, and thus have not been denied one, their injury is only threatened, not actual. Had they applied, the Secretary of State might have exercised discretion to treat individual religious convictions the same as beliefs of an entire sect.

Student Loses Religious Challenge To RFID Badges After School's Accommodation Offers

In A.H. v. Northside Independent School District, (WD TX, Jan, 8, 2013), a Texas federal district court refused to grant a preliminary injunction to a high school student who objected on religious grounds to wearing a Smart ID badge containing an RFID chip. The student's father claimed that wearing the badge would be the mark of the beast, and he had religious objections to the school tracking his daughter. The school superintendent offered to accommodate the student's religious beliefs by allowing her to wear the badge with the RFID chip and its electronic components removed.  The student and her family still refused, saying that wearing the badge would give the appearance that they supported the program.  The school said that the student's other alternative was to withdraw from the science and engineering magnet school she was attending and return to her regular high school where none of the identification badges contain RFID chips.

In an extensive opinion, the court rejected plaintiff's free exercise, free expression, due process and equal protection claims.  The court said that even if strict scrutiny applies under the 1st Amendment, as it does under the Texas Religious Freedom Restoration Act, that standard has been met. Plaintiff has not shown that the badge imposes a substantial burden on her ability to exercise her religion; the government has shown a compelling interest in requiring the badges; and the school has offered plaintiff an accommodation that should remove any objections. It also concluded that wearing the badge is not expressive conduct, and even if it is it passes constitutional muster.  Wired reports on the decision, as does the Rutherford Institute  (See prior related posting.)

UPDATE: The Jan. 10 San Antonio Express-News reports that an appeal to the 5th Circuit has been filed in the case.

4th Circuit Hears Oral Arguments In Two Religion Cases

Yesterday the U.S. 4th Circuit Court of Appeals heard arguments in American Humanist Association v. Maryland-National Capital Park and Planning Commission (audio of oral arguments). In the case, a Maryland federal district court rejected an Establishment Clause challenge to the 90-year old Peace Cross, a 40-foot tall Veteran's Memorial in the shape of a cross. (See prior posting.) Reporting on the oral arguments, the Washington Post said in part:

Two appeals court judges clearly stated that there is no way to view the Peace Cross in Bladensburg other than as a symbol of Christianity.

The third judge on the appeals panel just as strongly said that the marble-and-cement monument is a secular war memorial honoring the death and sacrifice of those lost in battle.

Yesterday the 4th Circuit also heard oral arguments in EEOC v. COMSO: Energy, Inc. (audio of oral arguments). In the case, a West Virginia federal district court awarded damages to an Evangelical Christian mine employee who who objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. (See prior posting.)

Court Refuses To Dismiss Challenge To Illinois Drivers License Rules

In Baer v. White, 2009 U.S. Dist. LEXIS 46412 (ND IL, June 3, 2009), plaintiffs challenged as too narrow the Illinois provisions protecting some religious objectors from furnishing their social security number in order to get a drivers' license. Under Illinois Vehicle Code 6-106 and 92 Illinois Administrative Code §1063.63, an exemption is available only if the religious order or sect to which an applicant belongs does not permit the individual to apply for a social security card. In this case, plaintiffs say that their individual religious beliefs-- based on Revelation 13:16-17 that prohibits the "mark of the beast"-- prevent them from furnishing a social security number in order to obtain a drivers license. However their religious sect does not specifically prohibit obtaining a social security number; instead it respects individual consciences on the matter. At issue in particular is the state's requirement for a statement from one's religious leader "attesting that the use of a social security number is against the religious convictions of the applicant's faith." The statute also requires the Secretary of State to determine which religious groups have bona fide convictions opposing participation in the social security system.

The court refused to dismiss plaintiffs' free exercise, equal protection and state RFRA challenges to the statute and regulations. However the court did dismiss plaintiffs' right to travel and due process challenges to the Illinois requirements.

Federal Pre-Emption Requires Objector To Furnish SS Number For Drivers License

In Lewis v. State of Idaho Department of Transportation, (ID Ct. App., Aug. 17, 2006), an Idaho appellate court rejected an appeal by Lawrence Lewis who was denied a drivers' license when he refused to furnish his social security number. Lewis believes his social security number "is either the precursor to, or actually is, the biblical 'mark of the beast'." Apparently realizing that a claim under the First Amendment would be difficult to maintain, Lewis instead relied on Idaho's Free Exercise of Religion Act that requires the state to show a compelling interest and use of the least restrictive means when free exercise is burdened even by a neutral law. The court, however, found that federal law, 42 U.S.C. § 666(a)(13)(A), requiring states to collect social security numbers of drivers license applicants, pre-empts the state's Free Exercise of Religion Act. The federal provision was enacted as part of Congress' attempt to facilitate interstate child support enforcement. Saturday's Salt Lake Tribune covers the decision.