Hertz Fires Muslim Employees For Refusing To Clock Out For Prayers

AP reported Friday that Hertz, the rental car company, is firing 26 Somali Muslim employees at Seattle-Tacoma International Airport because they refuse to clock out for their daily prayer breaks. The Teamsters local union that represents the workers says that the company agreed during negotiations last year that the employees would not need to clock out. Hertz says that the failure of many employees to return promptly after their prayers had created an unfair work environment.

Recent Prisoner Free Exercise Cases and Note on New Format

Note to readers: Today my weekly compilation of prisoner free exercise cases appears in an abbreviated format which I plan to use in the future.  The prior format which included summaries had begun to consume far too much of my time for what I perceive the value of the summaries to be. If readers disagree with this assessment of the value of the prior format, please let me know by e-mail.

Here are recent decisions in which federal or state prisoners seek relief-- usually asserting free exercise and/or RLUIPA claims-- regarding conditions of confinement or other issues they perceive to infringe their religious exercise.  These cases often involve access to religious diets, materials or services while incarcerated:

Williams v. Sibbett, 2011 U.S. App. LEXIS 21103 (10th Cir., Oct. 18, 2011)

Jackson v. Goord, 2011 U.S. Dist. LEXIS 117539 (WD NY, Oct. 11, 2011)

McKissick v. Owens, 2011 U.S. Dist. LEXIS 118237 (MD GA, Oct. 13, 2011)

Somie v. GEO Group, Inc., 2011 U.S. Dist. LEXIS 118546 (ED NC, Oct. 12, 2011)

Rupe v. Cate, 2011 U.S. Dist. LEXIS 118414 (ED CA, Oct. 11, 2011)

Fitch v. City of Leitchfield, 2011 U.S. Dist. LEXIS 118696 (WD KY, Oct. 11, 2011)

Cooper v. Evans, 2011 U.S. Dist. LEXIS 117991 (SD IL, Aug. 3, 2011), adopted by 2011 U.S. Dist. LEXIS 114891 (Oct. 5, 2011)

McKenzie v. Ellis, 2011 U.S. Dist. LEXIS 118373 (S.D. Cal. July 18, 2011), adopted by 2011 U.S. Dist. LEXIS 112222, (Sept. 29, 2011)

Turner-Bey v. Maynard, 2011 U.S. Dist. LEXIS 118883 (D MD, Oct. 13, 2011).

Walton v. Sing, 2011 U.S. Dist. LEXIS 119798 (ED CA, Oct. 17, 2011).

McChesney v. Hogan, 2011 U.S. Dist. LEXIS 119690 (ND NY, Aug. 2, 2011), accepted in part and rejected in part by 2011 U.S. Dist. LEXIS 112525 (Sept. 30, 2011).

Egyptian Court Sentences Facebook Poster To 3 Years For Insulting Islam

AFP reports that in Egypt yesterday, a court sentenced Ayman Yusef Mansur to 3 years in prison at hard labor for Facebook postings that "intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule."

Default Judgments Totaling $3M Entered Against Former Priest

According to the Boston Globe, yesterday a Massachusetts state trial court awarded two clergy sex abuse victims damages of $2 million and $1 million respectively after former Catholic priest John Dority failed to appear in court or respond to a lawsuit filed against him.  The 70-year old Dority, now a registered sex offender living in Connecticut, earlier told reporters that he did not respond to the lawsuit because he could not afford an attorney. He has admitted molesting the two victims and says he is very sorry.

Is Washington Anti-Discrimination Exemption for Religious Organizations Constitutional?

In Donelson v. Providence Health Services, 2011 U.S. Dist. LEXIS 119194 (ED WA, Oct. 14, 2011), a former employee of a Catholic sponsored skilled nursing facility sued claiming she was wrongfully terminated because of an injury. In response to plaintiff's claim under the Washington Law Against Discrimination, the nursing facility invoked the exemption in the statute for non-profit religious organizations.  Plaintiff argued that insofar as that statutory exemption allowed sectarian organizations to discriminate on grounds other than religion, it violates Sec. 11 of the Washington Constitution "because it grants religious organizations broad license to discriminate on grounds such as disability, gender, and race, thereby improperly favoring religion over non-religion." In response, the federal court asked to parties to file briefs on whether the federal court should certify the question to the Washington Supreme Court.

8th Circuit Enjoins Nebraska Funeral Picketing Law

In Phelps-Roper v. Troutman, (8th Cir., Oct. 20, 2011), a 3-judge panel of the 8th Circuit held that the district court should have granted a preliminary injunction barring enforcement of the Nebraska Funeral Picketing Law against members of the Westboro Baptist Church-- a group that pickets military funerals, among other places, protesting tolerance of homosexuality in the United States.  The court was bound by a 2008 decision by the 8th Circuit which enjoined enforcement of a similar statute on free speech grounds. However in separate opinions the judges questioned the correctness of that 2008 precedent. The Columbia Daily Tribune reports on the decision.

Bus Line In New York Hasidic Neighborhoods Segregates Sexes

The New York World reported earlier this week on an unusual arrangement for bus service in Brooklyn, New York on a line that runs between the Hasidic Orthodox Jewish neighborhoods of Williamsburg and Borough Park.  A private company pays the city to allow it to provide public bus service on the route, and the company in turn collects fares from passengers. The buses-- at the behest of a board of consulting rabbis-- require men to sit an the front and women to sit in the back in order to prevent physical contact between members of the opposite sex.  The city Department of Transportation however says that the bus line-- as a public service-- is subject to anti-discrimination laws, and it is asking the company about the situation. [Thanks to Jean Dudley via Religionlaw for the lead.]

Revised Plan To Transfer Land To Catholic School Still Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Oct. 19, 2011), and Indiana federal district court rejected a revised plan by South Bend to transfer land for use by a Catholic high school for construction of athletic facilities.  Last month the court held that the proposed transfer violates the Establishment Clause. (See prior posting.) In this decision, the court likewise rejected a new plan that called for sale of the land to the highest bidder, but with discretion to reject the high bid in favor of a lower one that promises to use the land to promote development of St. Joseph High School. The court said: "given the recent history of the City’s acquisition and attempt to convey the parcel here at issue, the City can’t do so with its stated criteria for selecting among bidders without sending a message of endorsement of the Catholic faith."  A press release from Americans United announced the decision. [Thanks to Don Byrd for the lead.]

Republican Debate Includes Role of Religion In Choosing Nominee

Last night's Republican presidential debate in Las Vegas sponsored by CNN included a lengthy discussion of the role of religion in choosing a candidate, in light of statements earlier this month by Rev. Robert Jeffress that Christians should not vote for Mitt Romney because he is a Mormon. (See prior posting.). Last night's debate was moderated by Anderson Cooper.  Here is an excerpt from the full Part 3 transcript:

COOPER: Should voters pay attention to a candidate's religion? SANTORUM: I think they should pay attention to the candidate's values, what the candidate stands for....

SANTORUM: That's what is at play. And the person's faith -- and you look at that faith and what the faith teaches with respect to morals and values that are reflected in that person's belief structure. So that's -- those are important things.

I -- I'm a Catholic. Catholic has social teachings. Catholic has teachings as to what's right and what's wrong. And those are legitimate things for voters to look at, to say if you're a faithful Catholic, which I try to be -- fall short all the time, but I try to be -- and -- and it's a legitimate thing to look at as to what the tenets and teachings of that faith are with respect to how you live your life and -- and how you would govern this country.

With respect to what is the road to salvation, that's a whole different story. That's not applicable to what -- what the role is of being the president or a senator or any other job....

 COOPER: Speaker Gingrich, you agree with that?

GINGRICH: Well, I think if the question is, does faith matter? Absolutely. How can you have a country which is founded on truths which begins we are endowed by our creator with certain inalienable rights? How can you have the Northwest Ordinance of 1787 which says religion, morality and knowledge being important, education matters. That's the order: religion, morality and knowledge.

Now, I happen to think that none of us should rush in judgment of others in the way in which they approach God. And I think that all of us up here I believe would agree....

But I think all of us would also agree that there's a very central part of your faith in how you approach public life. And I, frankly, would be really worried if somebody assured me that nothing in their faith would affect their judgments, because then I'd wonder, where's your judgment -- how can you have judgment if you have no faith? And how can I trust you with power if you don't pray?...

Who you pray to, how you pray, how you come close to God is between you and God. But the notion that you're endowed by your creator sets a certain boundary on what we mean by America.

COOPER: Governor Perry, Mitt Romney asked you to repudiate the comments of that pastor who introduced you on that stage. He didn't make the comments on the stage; he made them afterward in an interview. Will you repudiate those comments? ROMNEY: Well, our faith -- I can no more remove my faith than I can that I'm the son of a tenant farmer. I mean, the issue, are we going to be individuals who stand by our faith? I have said I didn't agree with that individual's statement. And our founding fathers truly understood and had an understanding of -- of freedom of religion.

And this country is based on, as -- as Newt talked about, these values that are so important as we go forward. And the idea that we should not have our freedom of -- of religion to be taken away by any means, but we also are a country that is free to express our opinions. That individual expressed an opinion. I didn't agree with it, Mitt, and I said so. But the fact is, Americans understand faith. And what they've lost faith in is the current resident of the White House....

ROMNEY: You know, with -- with regards to the disparaging comments about my faith, I've heard worse, so I'm not going to lose sleep over that....

What I actually found was most troubling in what the reverend said in the introduction was he said, in choosing our nominee, we should inspect his religion. And someone who is a good moral person is not someone who we should select; instead, we should choose someone who subscribes to our religious belief.

That -- that idea that we should choose people based upon their religion for public office is what I find to be most troubling, because the founders of this country went to great length to make sure -- and even put it in the Constitution -- that we would not choose people who represent us in government based upon their religion, that this would be a nation that recognized and respected other faiths, where there's a plurality of faiths, where there was tolerance for other people and faiths. That's bedrock principle.

And it was that principle, Governor, that I wanted you to be able to, no, no, that's wrong, Reverend Jeffress. Instead of saying as you did, "Boy, that introduction knocked the ball out of the park," I'd have said, "Reverend Jeffress, you got that wrong. We should select people not based upon their faith." Even though -- and I don't suggest you distance yourself from your faith any more than I would. But the concept that we select people based on the church or the synagogue they go to, I think, is a very dangerous and -- and enormous departure from the principles of our -- of our Constitution.

Court Says Counseling By Nun Is Not Privileged

According to the Parsippany, NJ Daily Record, and the Newark Star-Record,  a New Jersey state judge yesterday ruled that a nun who counseled a murder suspect can be called to testify against the suspect at trial. Sister Catherine Morrisett is a nun who is trained in therapy, but she is not a licensed psychologist. While she has a doctorate in ministry, she is not authorized by the Church to hear confessions or offer the sacrament of absolution. Therefore none of the traditional privileges against testifying apply to her.

Anti-Church Party Gets Surprising 3rd Place Win In Poland

Last Sunday in Parliamentary elections, Poland re-elected Prime Minister Donald Tusk who, according to AP, is holding coalition talks with the small Polish People's Party. The surprise, however, was the third-place showing of a new party, Palikot Movement (Movement of Support), which received 10% of the vote. According to CNS, the Palikot Movement campaigned against Catholic Church involvement in the Polish government:

The movement's leader, millionaire businessman Janusz Palikot, accused the church of "taking sides in politics," and said religious symbols had been "used disgracefully for political struggles."

He added that Poland needed "defending against Catholicism, not Catholicism against Poland," and said his first moves would include securing the removal of a cross from the Sejm, Poland's lower legislative chamber.

Poland's Catholic bishops reacted angrily to calls for religion to be less present in public life.

Recent Prisoner Free Exercise Cases

In Smith v. Marshall, 2011 U.S. App. LEXIS 20619 (9th Cir., Oct. 11, 2011), the 9th Circuit Court of Appeals held that a prison's restrictions on third-party purchases of prayer oil did not substantially burden an inmate's ability to practice his religion.

In Davis v. Thaler, 2011 U.S. Dist. LEXIS 116912 (SD TX, Oct. 6, 2011), a Texas federal district court rejected claims of a Christian Nazarite prisoner that his rights under the 1st Amendment and RLUIPA were violated by requiring him to cut his hair and beard.

In Jones v. Petty, 2011 U.S. Dist. LEXIS 111368 (MD GA, Sept. 29, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116716, Sept. 6, 2011) and allowed a Muslim inmate to proceed with his claim for nominal damages because of interference with his use of a prayer rug and with his non-pork diet.

In Goodson v. Maggi, 2011 U.S. Dist. LEXIS 82702 (WD PA, July 27, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116853, July 6, 2011) and dismissed an inmate's complaint that while in the Special Housing Unit he was denied religious meetings, including ones with a Catholic representative, and no church services were available to him.

In Smith v. Thomas, 2011 U.S. Dist. LEXIS 117482 (ED VA, Oct. 12, 2011), a Virginia federal district court adopted a magistrate's recommendations and rejected an inmate's complaint that he was denied the opportunity to receive religious materials from the chaplain's cart or office while he was in administrative segregation.

In Iscaro v. Unknown Party #1, 2011 U.S. Dist. LEXIS 116997 (WD MI, Oct. 11, 2011), a Michigan federal district court rejected an inmate's claim that his rights were violated when he was denied clergy visits with two specified individuals.

In Williams v. Dart, 2011 U.S. Dist. LEXIS 116993 (ND IL, Oct. 11, 2011), an Illinois federal district court rejected an inmate's claim that he was able to attend only one communal Muslim service and was not provided a proper religious diet during his four-months in the Cook County Jail.

Limits On Travel For Religious Purposes Pending Trial OK'd By Vermont High Court

In State of Vermont v. Johnson, (VT Sup. Ct., Sept. 21, 2011), the Vermont Supreme Court upheld the conditions imposed by a trial court in releasing Janette Johnson pending her trial for aggravated domestic assault with a deadly weapon.  The conditions include not leaving Bennington County, except for church services in Cambridge, New York. Johnson unsuccessfully sought a modification so that she could also travel around New York and New England with her liturgical dance group. The court rejected the claim that this limitation violates Johnson's free exercise of religion.

Suit Claims Public School Discriminated Against Student Because of His Muslim Religion

Yesterday's New York Post reports on an "incendiary" lawsuit filed in federal district court in Brooklyn claiming that a Brooklyn public school refused to promote 5th grader Abedin Kajoshaj to the 6th grade because of his Muslim religion.  The boy claims he had the grades to move on in PS 180, the SEEALL Academy in Borough Park, but he was ordered to repeat 5th grade. He says this is part of a pattern of discrimination against him based on his religious faith. The suit seeks damages of at least $600,000.

Nondisclosure of Factional Fighting Leads Court To Vacate Approval of Satmar Property Transfer

In Matter of Congregation Yetev Lev D'Satmar Inc. v Congregation Machneh Rav Tov, (NY Sup Ct Ulster Co., Sept. 27, 2011), a New York trial court vacated an order it had entered last December approving transfer of 8 parcels of property by a Satmar (Hasidic Jewish) religious organization. New York's Religious Corporation Law requires court approval for such real estate transfers.  However, in applying for the court order, those purporting to represent the selling congregation failed to inform the court or the state Attorney General's office of a long-running battle among two factions over which has authority to control the Satmar congregation's board of directors, and thus which faction had authority to initially authorize the property transfer. The court said: "The initial application by the petitioner is the quintessence of non-disclosure, bordering on a fraudulent application before this Court." (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Israel's High Court Again Orders End To Sex Segregated Streets For Sukkot Celebration

Haaretz and the Jerusalem Post report on an order issued Sunday by Israel's High Court of Justice in a clash between women's rights organizations and residents of the extremely traditional Jerusalem neighborhood of Mea Shearim.  A little known tradition of the Jewish holiday of Sukkot is the Simchat Beit Hashoeivah (Water Drawing Ceremony), a celebration recalling the the water libation ceremony festivities that took place in the ancient Temple in Jerusalem when it was standing.  In Temple times, women were separated from men to watch this celebration. (Background.) In recent years, residents of Mea Shearim, copying the Temple practice, have erected canvass partitions on neighborhood streets, using private security personnel to make sure that women use separate streets during the celebration period. Last year, two women who are members of Jerusalem's city council obtained an order from the High Court to end the segregated streets. However this year police nevertheless gave permission for the barriers to be put up again, though limited them to 26 meters in length. The High Court on Sunday did not order the barriers removed immediately, but ruled that this is the last year that police may permit them. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Articles of Interest

From SSRN:

• Abhyuday Bhotika, Status and Role of a Karta – A Critical Study, (October 6, 2011).
• Daniel Kroslak, The Cultural Defense in Germany, (October 9, 2011).
• Abdulla Galadari, Inner Meanings of Islamic Finance: Understanding the Theory Behind All Theories, (5th IIUM International Accounting Conference, Kuala Lumpur, Malaysia, July 12-13, 2011).
• Anne Twomey, Changing the Rules of Succession to the Throne, (Sydney Law School Research Paper No. 11/71, Oct 12, 2011).
• Linda Ross Meyer, Book Review: Apology and Sympathy: On the Importance of ‘Training in Moral Discomfort’, (April 9, 2011).
• Christopher C. Lund, The New Victims of the Old Anti-Catholicism, (Connecticut Law Review, 2012).

From SmartCILP:

• Rachel Goldberg and Brian Blancke, God In the Process: Is There a Place for Religion in Conflict Resolution?, [Abstract], 28 Conflict Resolution Quarterly 377-398 (2011).
• Nathan J. McGrath, Reed v. UAW: An Adverse Ruling on Adverse Action, 23 Regent University Law Review 391-402 (2010-2011).
• David Skeel, Making Sense of the New Financial Deal, 5 Liberty University Law Review 181-199 (2011).
• Juan Marco Vaggione, Sexual Rights and religion: Same-sex Marriage and Lawmakers' Catholic Identity in Argentina, [Abstract], 65 University of Miami Law Review 935-954 (2011).
• Rev. Carlton W Veazey and Marjorie Brahms Signer, Religious Perspectives on the Abortion Decision: The Sacredness of Women's Lives, Morality and Values, and Social Justice, 35 N.Y.U. Review of Law and Social Change 281-302 (2011).
• Symposium: Critical Perspectives on the Criminalization of Islamic Philanthropy in the War on Terror. Articles by Jonathan Benthall, Nina J. Crimm, Sally Howell, Erica Caple James, Ramzi Kassem and Khalid Mustafa Medani. 10 UCLA Journal of Islamic & Near Eastern Law 1-137 (2010-2011).

10 Commandments Suit Begins With Skirmishes Over Allowing "John Doe" Plaintiffs

As previously reported, the ACLU of Virginia last month filed suit in federal district court on behalf of a high school student and the student's parent challenging the posting of a Ten Commandments display in Giles County, Virginia's Narrows High School. Now, in preliminary skirmishing in the case, lawyers representing the school board have filed an objection to plaintiffs in the lawsuit being identified only as Doe 1 and Doe 2.  The Roanoke Times reported last week that the school board contends it needs to know the identity of plaintiff so it can determine whether the student in fact attends Narrows High School and whether he or she regularly passes by the Ten Commandments display. Plaintiffs' lawyers say that the pseudonyms are necessary to prevent harassment of the plaintiffs.

Kazakh President Signs Restrictive New Religion Law

Forum 18 reported last week that Kazakhstan's President Nursultan Nazarbaev has signed two new laws on freedom of religion or belief. According to Forum 18:

The Law on Religious Activity and Religious Associations" among other restrictions imposes a complex tiered registration system, bans unregistered religious activity, imposes compulsory religious censorship and requires both central and local government approval to build or open new places of worship. All religious communities will be required to re-register or face liquidation through the courts....

(See prior related posting.)

Church Sues New Jersy City Over Zoning Delay

According to North Jersey's The Record, last week the Harlem-based Israelite Church of God in Jesus Christ filed a civil rights lawsuit against Hackensack, New Jersey and 5 city officials over a lengthy delay in approving the church's use of a former school as a school for its clergy.  The complaint in the federal lawsuit claims that the zoning delays were due to antagonistic views of city officials toward the church's teachings and ethnic discrimination against the church's largely Latin American, African American and Native American membership.