1st Circuit Hears Arguments On Whether FMLA Covers Accompanying Spouse For Faith Healing

Corporate Counsel reports that on Thursday the 1st Circuit Court of Appeals heard oral arguments in Tayag v. Lahey Clinic Hospital, Inc.  One of the issues in the case is whether the federal Family and Medical Leave Act provides leave for caregivers accompanying sick family members who are seeking spiritual healing.  Plaintiff was terminated by her employer for taking unauthorized leave when she accompanied her ill husband to their native Philippines for a seven-week trip. The couple spent 3 and a half weeks at a healing program at a Catholic church and then made religious pilgrimages to other churches in the Philippines as well. They also saw friends and family while in the Philippines. The decision under appeal was handed down by a Massachusetts federal district court in January. (Full text of decision.) The trial court held that

It is far from clear that caring for a seriously ill spouse on a trip for non-medical religious purposes is a protected activity under the FMLA.  Even if caring for a sick spouse on a trip for faith-healing were protected because of its potential psychological benefits, it is undisputed that nearly half of the Tayags’ trip was spent visiting friends, family, and local churches.  The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an “incidental consequence” of taking him on vacation. 

Malaysian Politicians Condemn Teacher's Caning of Student For Bringing Non-Halal Food to School

In the Malaysian state of Sarawak, politicians from the governing Barisan Nasional party, as well as from opposition parties, have condemned the actions of a public school teacher who caned a boy for bringing non-Halal food to school.  According to Saturday's Free Malaysia Today, the senior teacher of St. Thomas Primary School took the action against Basil anak Beginda for bringing fried rice with pork sausages to eat during school recess. Spokespersons for various political parties emphasized the tradition of tolerance in Sarawak, freedom of religion and their belief that the boy's infraction was not serious.

Police Officer's Claim of Religious Discrimination In Investigation Dismissed

Longmire v. City of Oakland, (ND CA, Nov. 2, 2010), is a lawsuit by an Oakland,California police officer who believed that racial and religious discrimination impacted an investigation that concluded he interfered with the police department's criminal investigation of a Black Muslim Bakery. Members of the bakery were suspected of being involved in two homicides, a kidnapping, a robbery and more. Plaintiff Derwin Longmire claims he was targeted because he was suspected of being a member of the Black Muslim religion while in fact he is a Christian African-American.  In this opinion, a California federal district court dismissed, with leave to amend, Longmire's free speech, free exercise of religion, freedom of association and privacy claims. In dismissing plaintiff's free exercise claim, the court concluded:

Plaintiff ... has failed to provide support for the legal contention that a state may infringe an individual’s free practice of religion based on discrimination on a (mis)perceived religious affiliation.

In dismissing his claim for infringement of associational rights, the court said:

There can be no inference from the allegations made in the current complaint that his rights to associate with the Black Muslim Bakery were infringed if he did not actually associate, or wish to associate, with the group.

The court permitted plaintiff to proceed with his claim that the investigation against him was tainted with race-based discrimination. Yesterday's Contra Costa (CA) Times reports on the decision.

Fair Housing Charges Dismissed In Case of Church Posting For Female Christian Roommate

The U.S. Region V Office of Fair Housing and Equal Opportunity has found no reasonable cause to believe there was a violation of the Fair Housing Act in the case of a woman who posted an ad for a "female Christian roommate" on her church bulletin board.  The Fair Housing Center of West Michigan filed a complaint against a 31-year old Grand Rapids (MI) woman who posted the notice after someone in her congregation complained about the ad. (See prior posting.) While the complaint was filed with the Michigan Department of Civil Rights, that agency, in a statement, said that it coordinates with the U.S. Department of Housing and Urban Development to assure uniform application of the law, and HUD decided that the legal and Constitutional issues posed by the case were ones it wanted to address.

In its Oct. 28 Determination of No Reasonable Cause, HUD said:

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing. However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

The statement issued by the Michigan Department of Civil Rights emphasized that it had never implied during its investigation that there was a violation of law. It went on to say:

We do not comment on the specifics of an open investigation until we have reached an official determination, and we do not reach a determination until after an investigation is complete and it can be based on all of (and only) the facts. In this instance, we sincerely wish everyone would have done the same.

Because some chose to ignore the difference between conducting a legally-required investigation and the decision to bring a charge of discrimination based upon that investigation when appropriate, this office and specifically a member of our staff was subjected to a barrage of phone calls, emails, comments, posts and blog entries. Although these communications were premature in that they falsely accused us of having made a determination, they were mostly valid expressions of personal opinion, which the Department is always interested in receiving. However, many also included threats or other inappropriate personal attacks. The Department of Civil Rights will not tolerate such conduct, which it believes is never appropriate. All threatening communications have been and will be forwarded to the appropriate law enforcement authorities.

Under the Fair Housing Act (background), HUD's determination does not preclude filing of a federal lawsuit by a victim of discrimination at that person's own expense. (42 USC Sec. 3613.) Today's Grand Rapids Press reports on the case.

9th Circuit Hears Oral Arguments In Church Zoning Case

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in International Church of the Foursquare Gospel v. City of  San Leandro. An audio recording of the oral arguments is available from the court's website. In the case, a California federal district court rejected RLUIPA, First Amendment, due process and equal protection challenges to a California city's refusal to rezone for "assembly" use industrial property a church had agreed to purchase. (See prior posting.)

Lawsuit Seeks To Bar Certification of Oklahoma Vote on Shariah Law

Two days after Oklahoma voters overwhelmingly approved a ballot measure barring state courts from considering or applying Shariah law, the Council on American-Islamic Relations filed a lawsuit seeking to enjoin the State Board of Elections from certifying the election results on the proposed constitutional amendment. The complaint (full text)  in Awad v. Ziriax, (WD OK, filed 11/4/2010), alleges that the amendment enshrines a condemnation of plaintiff's Muslim faith in the state constitution. In support of the injunction plaintiff argues that the Shariah ban violates the Establishment Clause because it has a sectarian purpose and effect. The complaint also asserts that the amendment violates the federal free exercise clause by targeting only one religion. Wall Street Journal reports on the filing of the lawsuit.

Consent Decree Entered In Suit By Group Seeking To Distribute Bibles In High Schools

On Tuesday, a Florida federal district court entered a consent decree (full text) in World Changers of Florida, Inc. v. District School Board of Collier County, Florida, (MD FL, Nov. 2, 2010). The lawsuit challenged a school policy instituted in 2008 that only permitted distribution of literature in the schools by outside groups if administrators found that it promotes student interests.  Applying the policy, the school ended the prior practice of allowing World Changers to set up a table in high schools to hand out Bibles on Religious Freedom Day. (See prior posting.) Under the settlement embodied in the consent decree, the school will create a limited public forum, allowing all non-profit groups to passively distribute literature to high school students from tables outside of classrooms on one day each year, set by the consent decree as January 16 (which is National Religious Freedom Day). Each table will carry a sign indicating the group handing out material and stating that the material is not endorsed by the school board. Certain materials can be excluded-- such as that promoting of alcohol, tobacco or illegal drugs; material likely to cause substantial disruption, incite imminent lawless action or material inappropriate for the age and maturity of high schoolers; pornographic or libelous material; commercial advertising; or material that infringes intellectual property or privacy rights. Liberty Counsel issued a press release announcing the settlement.

Financial Scandal Surrounds Pakistan Ministry's Hajj Arrangements

With the arrival of Hajj participants from around the world underway in Saudi Arabia, scandal swirls around the financial dealings of Pakistan's Religious Affairs Ministry in its arrangement of housing for Pakistani Hajj pilgrims. First, according to Monday's Pakistan Express Tribune, Pakistan's Hajj officials arranged for housing for Pakistanis too far away from Hajj activities, so many are instead camping on foot paths and roads. Then Hajj Director General Rao Shakeel was called back to Pakistan, charged with corruption in arranging the inadequate housing. According to today's Express Tribune, Saudi Prince Bin Bandar Bin Abdul Aziz Al-Saud in a letter to Pakistan's Chief Justice alleged that the Religious Affairs Ministry rented out housing to pilgrims at more than twice the actual cost, apparently embezzling the difference. The Supreme Court has ordered the government to deal with the issue on a national level, has ordered the Foreign Office to contact the Saudi government, and has ordered the government to respond to the court within 15 days.  Meanwhile, Prime Minister Syed Yousaf Raza Gilani has appointed a 3-member committee to probe the charges.

Pakistan's Parliament has reacted to the situation. According to Online International News Network, the Senate's Standing Committee on Religious Affairs has recommended that the Prime Minister remove Shakeel from his position, as has the Federal Minister for Religious Affairs.

Evangelist Sues Challenging City's Noise Ordinance

A lawsuit was filed yesterday in a Virginia federal district court by a Christian evangelist challenging Winchester, Virginia's noise ordinance.  Michael Marcavage, director of Repent America, was required by police to stop using a hand-held microphone and speaker while preaching at at Winchester's 2010 Apple Blossom Festival.  The complaint (full text) in Marcavage v. City of Winchester, Virginia, (WD VA, Nov. 3, 2010), contends that the city's ordinance that bars "any noise which unreasonably annoys, disturbs, injures or endangers the comfort, health, safety, welfare, or environment of others" is unconstitutionally vague.  The suit also alleges that the law, on its face violates the free expression provisions of the First Amendment and Virginia's Constitution as well as Virginia's Religious Freedom Restoration Act. Finally, plaintiff contends that because police acted on the basis of one person's complaint that the preaching caused the individual to be uncomfortable, the ordinance was not applied in a viewpoint neutral fashion. The Rutherford Institute issued a press release announcing the filling of the lawsuit.

SG's Standing Argument In Arizona Christian School Organization Case Surprises Some

The Los Angeles Times reports that many are surprised at the government's position on standing put forward yesterday by Acting U.S. Solicitor Gen. Neal Katyal in his Supreme Court argument on the constitutionality of Arizona's tuition scholarship tax credit. (See prior posting.) Here is part of the argument in Arizona Christian School Tuition Organization v. Winn that has caused American United executive director Barry Lynn to describe the Obama administration's position as "inexplicable":

GENERAL KATYAL: Not a cent of the Respondent's money goes to fund religion. If you placed an electronic tag to track and monitor each cent that the Respondent plaintiffs pay in tax, not a cent, not a fraction of a cent, would go into any religious school's coffers.... Their complaint is not that the government is spending ... money that has been extracted [from] ... taxpayers. Their complaint is that someone else's money is not being extracted and spent enough. And the relevant language in Flast says that for taxpayer standing to occur ... "his tax money" must be extracted and spent, and here that is not occurring.

JUSTICE GINSBURG: Counsel, does anyone have standing, in your view, to challenge this scheme?

GENERAL KATYAL: The way this scheme is set up, our answer is no. And I think that accords with this Court's general reluctance to confer taxpayer standing in this area.

JUSTICE GINSBURG: And if we leave out the fine points that you were discussing, isn't the underlying premise of Flast v. Cohen that the Establishment Clause will be unenforceable unless we recognize taxpayer standing?

GENERAL KATYAL: I don't see that, Justice Ginsburg..... I think Flast is a very narrow exception for when someone's dollars are being taken out of their pocket and spent by the government on religion, and I don't think that's happening here....

JUSTICE KAGAN: So if you are right, General Katyal, the Court was without authority to decide Walz, Nyquist, Hunt, Mueller, Hibbs, this -- this very case, just a few years ago? That the Court was out of authority to decide any of those cases, but somehow nobody on the Court recognized that fact, nor did the SG recognize that fact? The SG participated, I believe, in each of those cases.

GENERAL KATYAL: Right.

The government's amicus brief in the case similarly argued that plaintiffs lacked standing to bring their Establishment Clause challenge.

Christian Proselytizer Seeks To Appeal Mormon Judge's Refusal To Recuse Himself

Yesterday in Palmer v. City of Prescott, plaintiff filed a motion for interlocutory appeal (full text) of an Arizona federal district court judge's refusal to disqualify himself from hearing plaintiff's civil rights case. (See prior posting.) Plaintiff, an evangelical Christian who proselytizes Mormons, claimed that Judge David Campbell's Mormon religious beliefs would bias him. In the motion, plaintiff claims that: "true-believing Mormons believe I am a hireling of Lucifer, paid by the devil.... I have further prejudiced the judge against me by disclosing parts of his 'sacred' temple ceremony ... which the church considers blasphemy."

Supreme Court Hears Arguments In Arizona Tuition Scholarship Tax Credit Case

The U.S. Supreme Court today heard oral arguments (full transcript) in Arizona Christian School Tuition Organization v. Winn along with Garriott v. Winn. At issue is the constitutionality of Arizona's program that gives tax credits for contributions to school tuition organizations that in turn provide scholarships primarily to children attending parochial schools. Scotus Blog has links to all the briefs filed both by the parties and by amici.  In the case, the 9th Circuit held that plaintiffs have taxpayer standing to challenge the state programs and that the programs violate the Establishment Clause. (See prior posting.) Lyle Denniston has a recap of the arguments posted at Scotus Blog. He described it as "a passionate hour spent heavily on the difference between a tax credit and a tax deduction, intertwined with a focus on the arcane subject of "taxpayer standing" to file a lawsuit...."  ABC News also reports on the arguments.

Colorado Voters Defeat Personhood Amendment

In Colorado, Amendment 62, the anti-abortion Personhood Amendment was voted down yesterday. 70% of the voters cast their ballots against the amendment. (Election results.) The Denver Post reporting on the defeat, said the result was similar to the vote on a comparable proposal in 2008. The Personhood Amendment (full text) would have applied state constitutional protections for inalienable rights, equality of justice and due process of law "to every human being from the beginning of the biological development of that human being." Opponents argued that this would not only ban abortion, but also emergency contraception in rape cases, and would limit treatment for miscarriages and tubal pregnancies and would impact infertility treatment.

South Africa Plans To Amend Tax Law To Equalize Treatment of Shariah Compliant Mortgages

Bloomberg reports today that in South Africa, the government plans to introduce new tax rules next year to level the playing field for Islamic mortgages. South African law now exempts interest under $3206 (US) earned by those under 65 years of age from taxation. The new rules will give similar treatment to made from murabahah, mudarabah and diminishing musharaka arrangements-- transactions based on the exchange of assets structured to avoid the ban on interest imposed by Shariah law. South African banks plan to increase their offerings of Shariah-compliant mortgages once the new tax rules are in place. The government may also sell Islamic bonds if the tax law amendments are adopted.

3 Iowa Supreme Court Justices Voted Out of Office Because of Their Gay Marriage Ruling

In Iowa, for the first time since the judicial merit selection system was adopted in 1962, three state Supreme Court justices were voted out of office. Chief Justice Marsha Ternus and Justices David Baker and Michael Streit each received only 45% support for retention. (Unofficial results.) The vote came as a result of a campaign by those who are opposed to the state Supreme Court's ruling last year upholding same-sex marriage. In Varnum v. Brien, (IA Sup. Ct., April 3, 2009), the Iowa Supreme Court held that the Iowa statute limiting marriage to unions between opposite-sex partners violates the equal protection clause of the Iowa Constitution. (See prior posting.)  The Des Moines (IA) Register reports that the campaign to remove the justices spent $650,000, with much of the money from out-of-state conservative and religious groups. The Iowa Independent last month profiled the various groups supporting the campaign to oust the justices. The campaign in support of the justices spent $200,000. Two trial court judges in Polk County who were also targeted kept their seats.  Judge Robert Hanson who sided with same-sex couples at the trial court level received 66% support for retention, while Judge Scott Rosenberg, targeted for signing a gay couple's marriage waiver, was retained by a 69% vote.

Oklahoma Voters Approve Ban On Courts Using Shariah Law

In Oklahoma yesterday, voters approved State Question No. 755, amending the Oklahoma constitution to bar state courts from considering or using international law or Shariah law when deciding cases. With all precincts reporting, 70% of voters cast ballots in favor of the measure. (Unofficial results.) According to AP, the sponsor of the measure, Rex Duncan, called it a "pre-emptive strike."  Some members of the Muslim community say they are prepared to file a lawsuit challenging the measure.

Supreme Court Hears Arguments In RLUIPA Damages Lawsuit

The U.S. Supreme Court today heard oral arguments in Sossamon v. Texas (full transcript). At issue is whether states and state officials in their official capacities may be sued for damages under the Religious Land Use and Institutionalized Persons Act. Scotus Blog has links to all the merits and amicus briefs as well as to the other relevant primary source documents in the case. The case was brought by a prisoner who objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues did not give him access to Christian symbols or furnishings such as an altar or cross. In the case, the 5th Circuit held that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding for its prisons. The text of RLUIPA merely provides that a plaintiff may obtain "appropriate relief" against  a governmental defendant. (See prior posting).

Ugandan Court Grants Temporary Injunction Against Tabloid Publishing Names of Gays

CNN and Canadian Press both report on a temporary injunction issued by a court in Uganda ordering the publication Rolling Stone (unrelated to the U.S. magazine of the same name) to stop publishing names of photos of people it claims are gay.  Last month the tabloid published the names of 100 supposedly leading gays and lesbians in the country accompanied by a yellow banner reading "hang them." On Monday it published a second list and photos of people it said are gay and urged that they be reported to the police. The gay rights group Sexual Minorities Uganda filed an invasion of privacy lawsuit that led to the temporary injunction. The next hearing in the case is scheduled for Nov. 23. Last year Uganda came under heavy criticism as a bill was introduced that would have imposed the death penalty for "aggravated homosexuality" and life imprisonment for gays. (See prior posting.) It is reported that some American evangelicals have promoted the anti-gay agenda in Uganda. (See prior posting.) Uganda is mostly Christian and, according to CNN, a Pew poll reported that almost two-thirds of the country's Christians favor making the Bible the law of the land.

Settlement Approved In Suit Challenging Ban On Wearing Rosaries In School

A New York federal district court yesterday approved a settlement in a suit that was brought on behalf of a 13-year old middle school student in Schenectady, New York who was suspended for wearing a rosary outside his shirt to school. The school argued that items made of beads are gang-related. The settlement stipulation (full text) in R.H. v. Schenectady City School District, (ND NY, Oct. 30, 2010), calls for defendants to pay the student $2500 in damages and expunge his school record. The settlement also calls for defendants to pay $20,000 in attorneys' fees. The school has already modified its policy on wearing rosaries.  American Center for Law & Justice announced the approval of the settlement. (See prior related posting.)

High-Profile Defendant Removed From Jury Selection For Singing Hymns In Court

Yesterday in Salt Lake City, Utah, jury selection began in the federal court trial of Brian David Mitchell who is charged in the high profile 2002 kidnapping of then 14-year old Elizabeth Smart. Mitchell insisted on softly singing hymns during the court proceedings.  AP reports that after a half hour of the singing, Judge Dale Kimball ordered Mitchell removed, but to another room where he was still able to watch the proceedings by closed circuit television. It is expected that Elizabeth Smart will return to Utah to testify against Mitchell. Smart is currently serving a mission for the Church of Jesus Christ of Latter Day Saints in France.