Recent Prisoner Free Exercise Cases

In Deville v. Crowell, 2011 U.S. Dist. LEXIS 111107 (D KA, Sept. 28, 2011), a Kansas federal district court rejected claims by a federal inmate seeking group religious services reflecting his Creativity Prison Ministries (White Nationalist) beliefs, as well as his complaint that he was not receiving the Common Fare diet.

In Yassin v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 110393 (SD CA, Sept. 27, 2011), a California federal district court permitted a Muslim inmate to move ahead with his claim that refusal to provide him a halal diet violated his free exercise, equal protection and RFRA rights.

In Dean v. Hazewood, 2011 U.S. Dist. LEXIS 110890 (ED CA, Sept. 27, 2011), a California federal magistrate judge permitted a Muslim inmate to move forward with his claim that his free exercise and privacy rights were violated when he was subjected to an unclothed body search in front of a female correctional officer.

In Hopson v. TDCJ-CID, 2011 U.S. Dist. LEXIS 111387 (ED TX, Sept. 29, 2011), a Texas federal district court dismissed as moot an inmate's complaint that Native American prisoners are not permitted to gather for group worship, because now a contract chaplain has been hired. The court held that plaintiff had failed to exhaust his administrative remedies in connection with complaints about the lack of pipe ceremonies and oral teachings, smudging, access to non-desecrated religious prayer paraphernalia and honoring of Native American memorial days. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116466, Aug. 12, 2011.

In McKinley v. Maddox, 2011 U.S. Dist. LEXIS 111307 (WD OK, Sept. 28, 2011), an Oklahoma federal district court held that an inmate's free exercise rights were not substantially burdened by a temporary delay in approving his attending off-site church services. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116292, Aug. 8, 2011.

In Schuh v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 112540 (WD MI, Sept. 30, 2011), a Michigan federal district court rejected a defendant's complaint that his rights were violated when he was denied kosher meals until he showed that he had a sufficient and sincere understanding of the Jewish faith. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 115692, Feb. 11, 2011.

In McChesney v. Hogan, 2011 U.S. Dist. LEXIS 112525 (ND NY, Sept. 30, 2011), a New York federal district court permitted a civilly committed inmate who is an atheist to move ahead with his claims that his required sex offender treatment program is based in part on religious tenets in violation of the Establishment Clause and of his free exercise rights.

In Moore v. Cucchi, 2011 U.S. Dist. LEXIS 112582 (D NJ, Sept. 29, 2011), a New Jersey federal district court rejected a Buddhist inmate's free exercise and RLUIPA claims regarding problems with his vegetarian diet.

Court Approves Minnesota Department of Education Settlement In TiZA Suit

The ACLU of Minnesota announced Monday that a Minnesota federal district court has approved a Settlement Agreement (full text) with the Minnesota Department of Education in ACLU v. Tarek ibn Ziyad Academy. The lawsuit claims that TiZA, a publicly-funded Minnesota charter school violated the Establishment Clause by promoting Islam. (See prior posting.) Under the settlement, the court approved release of a 29-page Stipulation of Facts (full text) compiled by the ACLU, the Department of Education, and Islamic Relief USA (the charter school's former sponsor). The stipulation illustrates various incidents in which public funds or the school's operations appear to have furthered Islam or Muslim religious organizations.  Under the Settlement Agreement, the Department of Education also agreed that in the future it will require every charter schools to provide annual written assurances (full text of required assurances) that it is operating in a non-sectarian manner and provides equal treatment and equal access for all religions. (See prior related posting.)

EEOC Sues Over Firing of Jehovah's Witness Employee Who Would Not Raise Flags

Pacific News Center reports today that the U.S. Equal Employment Opportunity Commission has filed an employment discrimination lawsuit against Aviation Concepts, an aircraft retailer and service provider in Guam. The suit charges that the company refused to accommodate the religious beliefs of a Jehovah's Witness employee.  The employee, a mechanic, was fired after he refused an order from his manager to raise the U.S. and Guam flags at the work site. Raising the flags would violate the employee's religious beliefs. The company denied the charges.

Muslim Woman Sentenced For Contempt After Refusing To Rise In Courtroom

A 35-year old Muslim woman on trial in Minneapolis on charges of funneling money to a Somali terrorist group has been held in contempt of court for refusing on religious grounds to rise when the judge and jury entered the courtroom. AP reported  yesterday that defendant Amina Farah Ali was sentenced to 50 days in jail on the contempt charges, subject to purging of the charges if Ali changes her mind after conferring with Muslim religious authorities. Ali says she will not stand up for anyone except Allah.

UPDATE: Here is the full text of the judge's opinion in United States v. Ali, (D MN, Oct. 3, 2011), finding Ali in contempt. Volokh Conspiracy had additional analysis of the case.

California Bars Localities From Regulating Circumcision

As reported by yesterday's Christian Post, California Governor Jerry Brown last week signed
assembly Bill 768 (full text) which prohibits any city or county government in California from prohibiting or restricting male circumcision or a parent's authority to have a child circumcised. The legislation is a reaction to attempts earlier this year in San Francisco and Santa Monica to obtain voter approval for circumcision bans, including religious circumcision. (See prior related posting.)

Accused Pastor Seeks Return of Settlement Funds For Breach of Confidentiality Agreement

As previously reported, last May prominent Atlanta (GA) pastor Bishop Eddie Long, his LongFellows Youth Academy and his New Birth Missionary Baptist Church settled four civil lawsuits by men who alleged that Long used his spiritual authority to coerce young male members and employees of his mega-church into sexual relationships.  The settlement agreements contained confidentiality agreements.  Last month, nevertheless, in an interview with the Atlanta Journal Constitution, two of the four men spoke about their charges against Long.  Now, according to last Friday's Atlanta Journal Constitution, Long and his church are seeking return of at least $900,000 from 3 of the plaintiffs who settled on the ground that they violated terms of the confidentiality agreement that was part of the settlement.

Supreme Court Term Opens-- Red Mass And Cert. Denials

The U.S. Supreme Court's 2011-12 term opened yesterday with two traditions intact-- the Red Mass and denials of certiorari in hundreds of cases. Catholic Review reports that on Sunday, the 58th annual Red Mass to mark the opening of the Supreme Court's term was celebrated in Washington's Cathedral of St. Matthew the Apostle. The mass is sponsored by the John Carroll Society. Supreme Court justices attending the Mass were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Anthony Kennedy and Samuel Alito.

Among the cases of interest in which the Supreme Court denied certiorari yesterday (Order List) were:

• Jefferson County Board of School Commissioners v. Smith (No. 10-1402)-- the 6th Circuit en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. (See prior posting).
• Sherman v. Koch (No. 10-1191)-- In a 2-1 decision, the 7th Circuit upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges. The refusal to review was reported on by Education Week. (See prior posting.)
• Orange County, Calif., v. Khatib, (No. 10-1505)-- the 9th Circuit, en banc, concluded that a courthouse holding facility is a "pretrial detention facility" that is covered by RLUIPA. Huffington Post reports on the denial of cert, (See prior posting).
• DeWeese v. ACLU, (No. 10-1512)-- the 6th Circuit held that a Ten Commandments display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. AP reports on the denial of cert. (See prior posting.)
• St. Elizabeth's Child Care v. Pennsylvania Department of Public Welfare, (No. 10-1391)-- a Pennsylvania state appellate court rejected free exercise challenges by a Catholic child day-care center to the requirement that it obtain a state certificate of compliance in order to operate. (See prior posting.)
• San Leandro, CA v. International Church of the Foursquare Gospel, (No. 11-106)-- the 9th Circuit reversed the district court and held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. The San Francisco Chronicle reports on the Supreme Court's action. (See prior posting.)

UPDATE: The Supreme Court on Monday also denied certiorari in Spencer v. World Vision, Inc., (No. 10-1316)-- The 9th Circuit, in a 2-1 decision, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act  for religious organizations. The Court's action is reported in Christianity Today. (See prior posting.) [Thanks to Ted Olsen for the lead.]

Muslims, Christians Criticize Two-Child Proposal In Indian State

In India, Muslims and Catholics are strongly criticizing the Women's Code Bill that is being proposed by the government in the state of Kerala. According to Sunday's On Islam, the bill would impose fines of up to $203(US) and jail terms of up to 3 months on parents who have more than two children. A third child will not be eligible for government services.  The bill also encourages free abortions at government facilities and access to free contraceptives.

U.S. Bishops Create New Committee On Religious Liberty

The U.S. Conference of Catholic Bishops announced last week that it has formed a new Ad Hoc Committee on Religious Liberty "to address growing concerns over the erosion of freedom of religion in America." USCCB president Archbishop Timothy Dolan also sent a letter to fellow bishops informing them directly of the new Committee, saying:

The Framers of the Constitution themselves understood [religious liberty] ...  to be based on the norms inherent in Natural Law – namely, "that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are Life, Liberty, and the Pursuit of Happiness."  This basic right, in its many and varied applications for Christians and people of faith, is now increasingly and in unprecedented ways under assault in America.

The new committee will be chaired by Bishop William Lori of Bridgeport, Connecticut. Among the pressing issues identified by the bishops are federal policies regarding reproductive health services, administration opposition to the Defense of Marriage Act, the Justice Department's position on the "ministerial exception" doctrine, and the narrow religious exemptions in New York's same-sex marriage law.

Court Upholds Regulation of Fortune Tellers

In Moore-King v. County of Chesterfield Virginia, 2011 U.S. Dist. LEXIS 112205 (ED VA, Sept. 30, 2011), a Virginia federal district court rejected  constitutional challenges to Chesterfield County, Virginia's regulation of the business of fortune telling. Patricia Moore-King, a "spiritual counselor" who operated under the name of "Psychic Sophie" claimed that the county's zoning, business license tax and fortune teller permit ordinances violate her free exercise of religion, free speech and equal protection rights. The court held that plaintiff's predictions and counseling services are inherently deceptive commercial speech, and that the regulation of them is reasonably drawn. The court rejected plaintiff's free exercise and RLUIPA claims, finding that she is not engaged in religious practices. It also rejected her equal protection claims.

Faith Healing Parents Convicted In Death of Child

In Oregon City, Oregon last week, Dale and Shannon Hickman were convicted of second degree manslaughter in the death of their seriously ill infant son for whom they prayed and who they anointed with olive oil instead of seeking medical help. AP reports that the Hickman's are members of the Followers of Christ Church which has a history of rejecting medial care for members' children. Because of a religious exemption in the prior version of state law, the Hickman's are likely to face no more than 18 months in prison and a $250,000 fine. This year the state legislature removed the religious defense for criminal violations.

Israeli Court Says Author Can Change Status to "Without Religion"

In Israel, a trial court last week granted a petition by award-winning author, 81 year-old Yoram Kaniuk, to change his official religious status in the Interior Ministry's Population Registry from "Jewish" to "Without Religion."  Haaretz reports that Tel Aviv District Court Judge Gideon Ginat wrote: "Freedom from religion is a freedom derived from the right to human dignity, which is protected by the Basic Law on Human Dignity and Freedom." Author Kaniuk says this still allows him to be Jewish by nationality. Last year, Interior Ministry officials allowed the religious status of Kaniuk's infant grandson to be changed from American Christian to "without religion." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]Israeli Court Says Author Can Change Registration Status From Jewish To "Without Religion"

Recent Law Review Review Articles

From SSRN:

• Marie Ashe, Privacy and Prurience: An Essay on American Law, Religion, and Women, (American Journal of Legal History, Vol. 51, p. 461, 2011).
• Katherine Spencer, Mahr as Contract: Internal Pluralism and External Perspectives, (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011).
• Paul Horwitz, Act III of the Ministerial Exception, (Northwestern University Law Review, Forthcoming).
• Richard W. Painter, The Moral Responsibilities of Investment Bankers, (University of St. Thomas Law Journal, Vol. 8, No. 1, 2010).
• Samuel T. Grover, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, (American Journal of Law and Medicine, Vol. 37, No. 4, 2011).
• Leslie C. Griffin, Ordained Discrimination: The Cases Against the Ministerial Exception, (U of Houston Law Center No. 2011-A-9, Sept. 30, 2011).
• Susan E. Hauser, More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(A) of the Bankruptcy Code, (American Bankruptcy Law Journal, Forthcoming).
• Anita Bernstein, Toward More Parsimony and Transparency in 'The Essentials of Marriage', (Michigan State Law Review, Vol. 81, 2011).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Northwestern University Law Review Colloquy, Forthcoming).

SmartCILP:

• John Garvey, Intellect and Virtue: The Idea of a Catholic University, 60 Catholic University Law Review 563-573 (2011).
• Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington University. Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133-142 (2011).

Recent Prisoner Free Exercise Cases

In Burnett v. Hall, 2011 U.S. Dist. LEXIS 107884 (MD TN, Sept. 22, 2011), a Tennessee federal magistrate judge recommended dismissing a claim that a county jail failed to provide Muslim religious services.

In Rodgers v. Shearidin, 2011 U.S. Dist. LEXIS 108406 (D MD, Sept. 22, 2011), a Maryland federal district court rejected a Sunni Muslim inmate's claim that his rights under the 1st Amendment and RLUIPA were violated when he was not permitted to attend communal worship while in administrative segregation.

In Davis v. Powell, 2011 U.S. Dist. LEXIS 104537 (SD CA, Sept. 15, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 108053, Aug. 8, 2011) and dismissed with leave to amend complaints of a Muslim inmate regarding a prison ban on flammable prayer oil and rules that required him to choose between receiving a quarterly package of either food or prayer oil.

In Porter v. Wegman, 2011 U.S. Dist. LEXIS 109205 (ED CA, Sept. 23, 2011), a California allowed an inmate who is a member of the House of Yahweh religion to proceed with his claim that he should be permitted to obtain kosher meals and celebrate Yahweh's Passover and Feast of Unleavened Bread.

In Prall v. Bocchini, 2011 U.S. Dist. LEXIS 108902 (D NJ, Sept. 23, 2011), a New Jersey federal district court, while dismissing most of plaintiff's claims, permitted plaintiff ( a member of Nation of Gods and Earth) to move ahead with a RLUIPA claim if he amends his complaint to name proper defendants. Plaintiff alleges that his beliefs prevent him from cooperating with the state criminal justice process, including compliance with state prison rules and regulations. He says he is being forced to renounce his religious beliefs if he wants to participate in work, rehabilitative and educational programs that will shorten his time in the Management Control Unit.

In Smith v. Wright, 2011 U.S. Dist. LEXIS 109069 (ND NY, Sept. 23, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 109058, Aug. 31, 2011) and dismissed a claim by a Rastafarian inmate that his rights were violated when he was kept in segregated housing for 7 months because of his religious-based refusal to submit to a PPD test for tuberculosis.

In Guillory v. Tilton, 2011 U.S. Dist. LEXIS 110089 (ED CA, Sept. 27, 2011), a California federal district court rejected an inmate's claim that his free exercise rights were infringed when a corrections officer removed uneaten food from his cell during Ramadan. Plaintiff had not applied through the chaplain for special permission to keep food in his cell.

In Florer v. Blakemaan, 2011 U.S. Dist. LEXIS 110044 (WD WA, Sept. 27, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 110047, May 31, 2011) and dismissed a Jewish inmate's complaint that in the Intensive Management Unit he was denied access to certain of his religious books that were not requested through the chaplain or other approved sources.

Hasidic Group Can Move Ahead On Equal Protection Challenge In Zoning Dispute

Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 2011 U.S. Dist. LEXIS 109649 (SD NY, Sept. 26, 2011), involves an amended complaint filed by an Orthodox Jewish group over attempts to prevent it from operating a religious education center in Ramapo, New York. In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes that were designed to accommodate the Orthodox and Hasidic communities. Plaintiffs sued claiming that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. In a 2010 decision, the court dismissed without prejudice, invoking the Noerr-Pennington doctrine. (See prior posting.) Now, reviewing plaintiffs'amended complaint, the court dismissed a number of claims but refused to dismiss plaintiffs' claim that they were targeted for unequal treatment because they are Hasidic Jews. Unlike the first complaint, plaintiffs now alleged sufficient facts, if proven, to show they were treated differently than others who were similarly situated.

Kazakhstan Parliament Passes New Restrictive Religion Law

AP and On Islam both report on the passage Thursday by Kazakhstan's Senate of a new more restrictive law on religious activities. The bill must now be signed by President Nazarbayev, but that seems to be a certainty.  The law, which has been criticized by OSCE and others (see prior posting), sets 50, 500 and 5000 members respectively for local, regional and national registration of a religious group. It requires government review of all religious literature and annual registration of foreign missionaries (who can be expelled if they pose a threat to public order). The law also bans prayer rooms in all public buildings. Backers of the bill see it as a way to combat Islamic extremism, but others say it will eliminate two-thirds of the 4500 religious groups that now operate in the country. It will also complicate operations for fairly large Protestant groups now established in Kazakstan.

Military Clears Way For Same-Sex Marriage Ceremonies

In the wake of the final repeal of the military's "Don't Ask, Don't Tell" policy, the Pentagon has issued two memos that clear the way for same-sex marriages to be performed on military bases by military chaplains in states where such marriages are legal.  As reported last week by the Washington Blade, a Sept. 21 memo (full text) from DOD's General Counsel says that: "Determinations regarding the use of DoD real property and facilities for private functions, including religious and other ceremonies, should be made on a sexual-orientation neutral basis, provided such use is not prohibited by applicable state and local laws." It adds that making facilities available does not amount to DoD endorsement of the activities.

A second memo (full text) dated Sept. 30 from Under Secretary of Defense Clifford Stanley says that military chaplains "may participate in or officiate any private ceremony, whether on or off a military installation" so long as it is not prohibited by state or local law. However a chaplain is not required to do so if it "would be in variance with the tenets of his or her religion or personal beliefs."

New Saudi Textbook Reflects Islamic vs. Westernizing Tensions

According to yesterday's Jerusalem Post, Saudi Arabia's Education Ministry has published a new high school textbook titled Hadith which is strongly critical of Westernizing influences that are absorbed by Saudi students who study abroad. This attempt to interject criticism of the United Nations Human Rights agenda into sayings of the Prophet Muhammad comes at the same time that Saudi Arabia's Ministry of Higher Education is encouraging Saudi students to study abroad through the King Abdullah Foreign Scholarship Program. The problem reflects a struggle within Saudi Arabia's Education Ministry between top-level officials who hold degrees from U.S. and British universities, and their staffs who are often educated in Islamic studies from Saudi universities.

Controversy Over Air Force Academy Distribution of Memo On Religious Neutrality

As previously reported, last month Air Force Chief of Staff Gen Norton Schwartz issued a memo cautioning commanders not to use their positions to promote their personal religious beliefs to their subordinates, or to extend preferential treatment to any religion.  Now Military Religious Freedom Foundation (MMRF) researcher Chris Rodda writes that at the Air Force Academy in Colorado Springs, the memo was not distributed beyond a small group of officers until MRFF used a large billboard at a busy Colorado Springs intersection to display the full text of Gen Schwartz' memo. The Air Force Academy denies that the distribution date was connected to the billboard. God and Country blog, a critic of MMRF, says that MMRF head Michael Weinstein does not understand normal chain of command operations.

Today Is Pulpit Freedom Sunday

Today is Alliance Defense Fund's annual Pulpit Freedom Sunday, devoted to overturning provisions of the Internal Revenue Code that bar non-profit organizations (including churches) from endorsing or opposing candidates for any political office. An FAQ document explaining the initiative says that participating pastors today will preach a sermon "discussing the intersection of the political realm with scriptural Truth." ADF promises to represent, free of charge, churches or pastors under investigation by the IRS as a result. Friday's New York Times, reporting on this year's plans, says that participating ministers plan to send tapes of their sermons to the IRS, inviting a challenge. None of the churches which sent tapes in past years have been pursued by the IRS. ADF traces the history of the ban on political involvement to a 1954 Internal Revenue Code amendment pushed by then-Senator Lyndon Johnson to keep two Texas non-profits from supporting his opponent.