Recent Prisoner Free Exercise Cases

In Owens v. Davies County Detention Center, 2012 U.S. Dist. LEXIS 162003 (WD KY, Nov. 9, 2012), a Kentucky federal district court dismissed an inmate's complaint of delays in feeding him breakfast during Ramadan, but allowed him to proceed on his claim of retaliation for filing grievances about the issue.

In Adams v. Davenport, 2012 U.S. Dist. LEXIS 161853 (MD AL, Nov. 13, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 162746, Oct. 5, 2012) and dismissed claims by a Native American inmate that requiring him to cut his hair violated his religious exercise rights. The court also rejected equal protection and retaliation claims.

In Vega v. Lantz, 2012 U.S. Dist. LEXIS 163963 (D CT, Nov. 16, 2012), a Muslim inmate sued complaining that his request to be circumcised was denied, he was denied prayer oils, and Friday congregate prayer was frequently cancelled. A Connecticut federal magistrate judge held that defendants were entitled to qualified immunity on the damage claims against them, but that the case can proceed on its claims for injunctive and declaratory relief.

Greece Charges Play Producers and Cast With Blasphemy

In Greece on Friday, the public prosecutor's office charged the organizers, cast and producers of the play Corpus Christi with "insulting religion" and "malicious blasphemy."  The play, by American playwright Terrence McNally depicts Jesus and his apostles as gay and living in Texas.  According to Reuters and Greek Reporter, the unusual criminal charges were filed after a lawsuit by Bishop Seraphim of Piraeus.  Weeks of protest outside the Hytirio Theater in downtown Athens by priests and right-wing groups such as the ultra-nationalist Golden Dawn party had caused the play to be cancelled.

Charter School Sponsor Sues Insurance Company Over Costs Of Establishment Clause Battle

In February 2011, the ACLU of Minnesota reached a settlement agreement with Islamic Relief USA and Minnesota's commissioner of education in a long-running lawsuit accusing a charter school, TiZA, of violating the establishment clause by promoting Islam. (See prior posting.) Now Islamic Relief (which was TiZA's sponsor) has filed suit against an insurance company for reimbursement of $1 million in cost and fees plus the settlement payment of $267,500 it incurred. The complaint (full text) in Islamic Relief USA v. Minnesota School Boards Association Insurance Trust, (D MN, filed 11/13/2012) alleges that the insurance company breached the insurance contract by refusing to provide a defense to Islamic Relief, and that the insurance company is obligated under the policy to indemnify Islamic Relief for the amounts it was required to pay as damages for alleged violations of civil rights. Courthouse News Service reports on the lawsuit.

Court Enjoins Requiring Christian Publisher To Cover Contraceptives Seen As Abortifacients In Health Care Plan

In Tyndale House Publishers, Inc. v. Sebelius, (D DC, Nov. 16, 2012), the federal district court for the District of Columbia issued a preliminary injunction  barring the federal government from enforcing a portion of the Affordable Care Act contraceptive coverage mandate against a company that publishes Bibles and other Christian books. The court held that plaintiffs would likely succeed on the merits of showing that their rights under the Religious Freedom Restoration Act would be infringed by requiring their health plans to cover contraceptive methods that the company and its owners consider abortifacients-- Plan B, ella and intrauterine devices.

The court held, first, that the publishing company has standing::

when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes…. Tyndale [also]  has standing to assert its owners’ free exercise rights under the third-party standing doctrine….

Turning to the substance of plaintiffs’ claims under the Religious Freedom Restoration Act, the court concluded that the contraceptive coverage mandates substantially burdens plaintiffs’ free exercise rights:

Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties.  And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden….

The government argued that even if there was a substantial burden, it had a compelling interest in preventing the health problems associated with unintended pregnancies. The court held, however, that since plaintiffs object only to a limited number of contraceptives, and will still provide many others, it is not clear how excluding that limited number will interfere with the government's interest.  It also pointed out that other exemptions in the law exclude 191 million employees from coverage by the mandate.

Alliance Defending Freedom issued a press release announcing the decision, and the Washington Post reported on the decision.

British Court Finds Priest Sexual Abuse Caused Only Limited Damage To Claimant

In Raggett v. Society of Jesus Trust 1929 for Roman Catholic Purposes, (EWHC, Nov. 9, 2012), a British trial court (England and Wales High Court Queen's Bench Division) was faced with the question of the amount of damages to award to claimant who had been the victim of "a sustained course of sexual abuse" (but not "penetrative activity") by a Catholic priest beginning in 1970 when plaintiff was 11 years old and continuing until he was 15. Claimant, who was a law school graduate, sought damages in excess of £4 million.  He claimed that:

the psychiatric damage resulting from the abuse caused him difficulties in forming and maintaining personal relationships, in particular with his first wife. He also contends that the personality change caused by the abuse had a seriously detrimental effect on his ability to work as a solicitor. In particular, it adversely affected his ability to relate to people in positions of authority and to exercise appropriate judgment and self-control in his dealings with them. It is said that it also caused the claimant to indulge in 'risk taking' behaviour, to drink excessively and to use illicit drugs. It is claimed that the personality change resulted in the loss of his employment with Pinsents and his inability to obtain alternative employment as a lawyer.

The court in a 350 paragraph opinion, however, awarded him only £54,923.03, concluding that:

the psychological effects of the sexual abuse were confined to a period of about eight years from the start of the abuse until the beginning of the claimant's third year at University. They would have been most acute during the period of four years or so when the abuse was continuing. Thereafter, I find that the claimant's problems were caused mainly by his harmful use of alcohol, coupled with his abnormal personality traits. I do not consider that the abuse played any significant role in the claimant's performance at work, the loss of his legal career, his excessive drinking, his drug taking or his difficulties with relationships.

British Court Says Employer Breached Contract In Disciplining Christian Employee For Facebook Remarks

In Smith v. Trafford Housing Trust, (EWHC, Nov. 16, 2012), a British trial court (the England and Wales High Court Chancery Division) held that a non-profit organization that owns rental properties across the Borough of Trafford was in breach of contract when it demoted a Christian employee because of Facebook postings he made opposing performing of same-sex marriages in churches. The housing trust had argued that their employee, by making the posting, violated its employee code of conduct and its equal opportunity policy. Rejecting those contentions, Mr. Justice Briggs wrote in part:

I do not consider that any reasonable reader of Mr Smith’s Facebook wall page could rationally conclude that his two postings about gay marriage in church were made in any relevant sense on the Trust’s behalf....

The prohibition on the promotion of the political and religious views in the Code of Conduct did not, as a matter of interpretation and application, extend to Mr Smith’s Facebook wall....

Mr Smith’s use of his Facebook involved his work colleagues only to the extent that they sought his views by becoming his Facebook friends, and that did not detract to any significant extent from the essentially personal and social nature of his use of it as a medium for communication.

BreakingNews.ie and The Register both report on the decision.

USCIRF Urges Obama To Raise Religious Freedom Issues On Visit To Burma

On Saturday, President Obama leaves on a 4 day trip to Thailand, Burma and Cambodia. (USA Today).  On Wednesday, in advance of the trip, Katrina Lantos Swett, Chair of the U.S. Commission on International Religious Freedom wrote the President urging him to raise with Burma issues of religious freedom and ethnic and communal violence. The letter (full text) particularly emphasizes the restrictions and violence faced by the Rohingya Muslim minority, as well as the persecution of ethnic minority Chin Christians in the states of Kachin and Shan.

Damage Award Denied To Father Who Objected To Foster Care Placement That Violated Children's Religious Training

In BK v. Toumpas, (D NH, Nov. 14, 2012), a New Hampshire federal district court rejected a Hindu father's claim for damages against state child welfare officials for placing his 3 minor children in temporary foster care with families that disrespected the children's religious upbringing by serving them beef and taking them to Christian religious services. The court held that defendants had qualified immunity because any unconstitutionality of their actions would not have been clear to a reasonable official.

Christian Employee's Title VII Objections To Ramadan Accommodation Dismissed

In Ross v. Colorado Department of Transportation, (D CO, Nov. 14, 2012), a Colorado federal district court dismissed a Christian employee's Title VII claims for hostile work environment, failure to accommodate, discrimination, and retaliation. Plaintiff complained that his religious rights were infringed when a staff appreciation luncheon was rescheduled so that it would not take place during Ramadan, and when unit employees were invited by e-mail to have bagels and cream cheese in the cafeteria to mark the end of Ramadan. He contended that the Department was accommodating to Muslim proselytization and practices in the workplace. The court ordered further briefing on defendant's 11th Amendment defense to constitutional claims that were also asserted.

Obama Sends Best Wishes For Diwali

Earlier this week, on Tuesday, Hindus, Jains, Sikhs and some Buddhists celebrated Diwali – known as the festival of lights.  On Tuesday, the White House released a statement (full text) from the President extending holiday wishes to all those observing the holiday. The statement said in part:

Earlier this year, we were reminded of the evil that exists in the world when a gunman walked into the Sikh gurdwara in Oak Creek, Wisconsin and opened fire.  In the wake of that horrible tragedy, we saw the resilience of a community that drew strength from their faith and a sense of solidarity with their neighbors, Sikh and non-Sikh alike.  We also saw compassion and love, in the heroic actions of the first responders and the outpouring of support from people across the country.  Out of a day of sadness, we were reminded that the beauty of America remains our diversity, and our right to religious freedom.

Appeal Planned In Case Upholding Religious Instruction In Australian State's Schools

The Australian reports today that parents will appeal a decision handed down last month upholding the Special Religious Instruction program in the public schools in the Australian state of Victoria. Religious bodies offer 30 minutes per week of classes. Most of the classes, offered in two-thirds of the state's schools, are offered by the Christian group ACCESS ministries. Parents can choose whether or not their children will attend. Last month in Aitken v. State of Victoria – Department of Education & Early Childhood Development, (VCAT, Oct. 18, 2012), the Victorian Civil and Administrative Tribunal rejected a challenge by parents of children at 3 primary schools who contended that the way the program is offered amounts to direct discrimination against their children in violation of the Equal Opportunity Acts of 1995 and 2010. In those schools, most of the SRI classes were Christian, but one was Bah'ai. The court held:

Parliament authorised the provision of SRI in Victoria more than 60 years ago. That law was re-enacted 6 years ago. Parliament has given parents the opportunity to permit their children to attend SRI in the normal school hours, in schools where it is provided. Instruction may be given in different religions. SRI is not compulsory and parents have a choice whether their children attend. If they do not, they engage in useful, non-curriculum activities under teachers’ supervision. The SRI program has been implemented by teachers at the three schools in a thoughtful manner. Attendance by a child at SRI does not, necessarily, indicate that the child, or the parents, hold any particular religious beliefs. The evidence did not establish that the children, who did not attend SRI at the three schools, were treated in any discriminatory manner.

Plaintiff Sophie Aitken, speaking of the decision to appeal, said:

I would like to see a situation where all children receive proper teacher-run education about different religions and world views, as a way to enhance understanding and tolerance between people. Instead we have this divisive situation where children as young as five are being separated based on their religious beliefs.

Data Released On Tribal Taking Of Eagles and Hawks For Religious Purposes

An environmental group has obtained from the U.S. Fish and Wildlife Service the 2010 and 2011 data on the number of eagles and red tailed hawks taken for religious purposes by the Hopi Indian tribe under government permits.  Fly Rod and Reel reports that the data was obtained under Freedom of Information Act requests filed by Public Employees for Environmental Responsibility. The Hopis took 11 golden eagles and 1 red tailed hawk in 2010. They took 18 golden eagles and red tailed hawks in 2011. These were taken mostly from Navajo lands in northeastern Arizona with Navajo permission. Since 1986, they have taken a total of 495 golden eagles and 175 red-tailed and other hawks.  The U.S. Fish and Wildlife Service issues the permits under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

FFRF Sues IRS Over Non-Enforcement of Electioneering Restrictions On Churches

The Freedom From Religion Foundation yesterday announced that it has filed suit in a Wisconsin federal district court against the Internal Revenue Service challenging its failure to enforce against churches and religious organizations the electioneering restrictions applicable to tax-exempt non-profit organizations under Section 501(c)(3) of the Internal Revenue Code.  The Internal Revenue Code imposes special procedural provisions for instituting a church tax inquiry, and rule changes needed to properly implement those procedures have been pending for over 3 years. (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Shulman, (WD WI, filed 11/14/2012), contends that the non-enforcement policy results in preferential treatment of churches and other religious organizations in violation of the Establishment Clause. The complaint asks the court to order the IRS to remedy the procedural problem by requiring it to designate an official who is authorized to determine when to initiate churches tax inquiries.

Group Launches 10th "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its tenth annual "Friend or Foe Christmas Campaign."  The campaign is aimed at preventing the "censoring" of Christmas.  It focuses on governmental entities and businesses that use the term "holiday" rather than "Christmas" in publicity and advertisements, or which refer to a "holiday tree" or "holiday parade." It also focuses on bans on religious Christmas carols or wearing of red and green in schools. The group makes available  legal memos on the public and workplace celebration of Christmas and and complies a "Naughty and Nice" list of retailers who either recognize Christmas or who instead use more generic terms.

Australian Prime Minister Recommends Royal Commission On Institutional Responses To Child Abuse

At a press conference (full text) on Monday, Australia's prime minister Julia Gillard announced that she will recommend to the Governor-General that a Royal Commission be appointed to inquire into institutional responses to allegations of child abuse in Australia. The investigation will be aimed not just at the Catholic Church, but at all organizations and agencies that have been involved in caring for children. AAP reports that Australia's Cardinal George Pell welcomed the inquiry, but cautioned that the Catholic Church should not be made a scapegoat. New South Wales Premier Barry O'Farrell took strong issue with a statement made by Cardinal Pell that priests who hear confessions from other priests who have committed child sex abuse remain bound by the Seal of Confession. Pell advised priests to avoid hearing confessions from colleagues where they suspect abuse to prevent the problem of being bound to secrecy. The Australian reports that government opposition leader Tony Abbott also called for priests to report abuse even if they learned of it in confession. [Thanks to James S. Kolan for the lead.]

Canadian Court Invalidates Meeting of Sikh Temple, Finding Inadequate Notice

In Grewal v. Guru Nanak Sikh Gurdwara Society, (BC CA, Nov. 2, 2012), the Court of Appeal for the Canadian province of British Columbia upheld a lower court ruling that invalidated a resolution changing the qualifications for election to the Sikh temple's Executive Committee. The case was triggered by a dispute between "old guard" members of the Gurdwara, many of whom are "non-baptized" Sikhs, and younger members who are baptized and who were elected to the Executive Committee in 2009. The Sikh Youth Executive obtained passage by members in 2010 of new provisions for giving notice of Gurdwara meetings. Instead of giving notice by mail, effective notice could be given by publication in English language and Punjabi language newspapers with a circulation of over 10,000, plus publication on the Gurdwara's website and posting a notice on a bulletin board in the hall of the temple.  At the 2011 meeting, called using this procedure, members changed the qualifications for election to the Executive Committee. Now only baptized Sikhs were eligible.

In invalidating that change, the court concluded that the notice given for the meeting did not meet the requirements of province's Society Act, Sec. 60:

There was evidence that certain of the newspaper notices were contained in papers not circulated but given away at certain locations.  It seems to me that it would be difficult to demonstrate that such a methodology could ever be the type of notice contemplated to be given to members of a society pursuant to s. 60 of the Act....  A “giveaway” paper is obviously a wholly inadequate vessel for the giving of proper notice.

The court also suggested, without deciding, that it was not adequate to give notice in papers having a circulation as low as 10,000 when the Society had over 30,000 members. Surrey Now reports on the decision.

Jamaican Government Bans Preaching On Public Buses

In the Caribbean island nation of Jamaica, the government operated transit system has banned the practice of preaching to captive audiences on buses after complaints from some passengers.  Both AP and Jamaica Gleaner report that a directive has been given to drivers to politely tell preachers that they must stop their evangelizing.  Blind lay preacher Robert Lawson argues that the new order infringes his freedom of speech and religion.

Supreme Court Denies Cert. In Public School Released Time Case

The U.S. Supreme Court yesterday denied certiorari in Moss v. Spartanburg County School District, (Docket No. 12-415, cert. denied 11/13/2012). (Order List.) In the case, the 4th Circuit upheld Spartanburg's released time program that permits high school students to receive two academic credits for off-campus religious instruction offered by a private Bible school. (See prior posting.) Becket Fund issued a press release on the court's refusal to review the case.

Evidence of Religious Beliefs May Negate Intent To Distribute Marijuana

In United States v. Martines, 2012 U.S. Dist. LEXIS 160719 (D HI, Nov. 8, 2012), defendant, who was charged with conspiracy to manufacture and possess with intent to distribute over 100 marijuana plants, sought a continuance in order to secure the testimony of an expert on the Rastafarian religion.  A Hawaii federal district court denied the motion insofar as it related to a defense under the Religious Freedom Restoration Act because the government advanced a sufficiently compelling interest to overcome a RFRA defense. However the court granted the motion to allow the defendant to "introduce evidence of his Rastafarian beliefs, including the expert testimony ..., in order to negate the Government's evidence of his intent to distribute."

7th Circuit: Police Department Employee Was Offered Adequate Religious Accommodation

In Porter v. City of Chicago, (7th Cir., Nov. 8, 2012), the U.S. 7th Circuit Court of Appeals affirmed the dismissal of a claim by an employee of the Chicago police records service division that the city failed to accommodate her religious practices. Plaintiff wanted Sundays off because of her church involvement. The court concluded that the city met its obligations under Title VII of the 1964 Civil Rights Act when it instead offered plaintiff a later Sunday shift that would have permitted her to attend church on Sunday mornings. The court also rejected her retaliation and disparate treatment claims.

Violent Clashes Break Out Over Control of California Sikh Temple

For several years, two factions have been competing for control of a Sikh Temple in California. A 2008 election brought in reform directors for the Tierra Buena Gurdwara in Yuba City. (See prior posting.) Last September, 5 of the 73 board members attempted to force new elections, but a Sutter County (CA) court refused to order them.  Now some members apparently are resorting to self-help. PTI reports that on Sunday a violent clash between two groups broke out in the Gudwara parking lot as board members were leaving after a board meeting. Board members were attacked with shovels, broom handles and sticks as two groups of over 30 people clashed. The Sutter County Sheriff's Office is investigating.

Human Rights Council Elected; Critics Concerned With Human Rights Records of Many

UN Watch reports on the 18 nations, including the United States, that were elected to the U.N.'s Human Rights Council yesterday. In an evaluation published prior to the election, U.N Watch rated 7 of the countries ultimately elected as not qualified based on their human rights and U.N. voting records. The 7 are: Cote d’Ivoire, Ethiopia, Gabon, Kazakhstan, Pakistan, UAE, Venezuela. The group rated two others-- Kenya and Sierra Leone-- as questionable.

Tunisian Government Struggles With Salafists Over Control Of Mosques

A New York Times article posted yesterday explores the struggle between the new moderate government of Tunisia and more radical Salafists, saying in part:

Revolution freed the country’s estimated 5,000 officially sanctioned mosques from the rigid controls of the previous government, which appointed every prayer leader and issued lists of acceptable topics for their Friday sermons.

That system pushed a moderate, apolitical model of Islam that avoided confronting a dictator. When the system collapsed last year, ultraconservative Salafis seized control of up to 500 mosques by government estimates. The government, a proponent of a more temperate political Islam, says it has since wrested back control of all but 70 of the mosques, but acknowledges it has not yet routed the extremists nor thwarted their agenda.

Suit On Discrimination Against Charter School Moves Ahead In Part

In Pocono Mountain Charter School v. Pocono Mountain School District, (MD PA, Nov. 8, 2012), a publicly funded charter school, along with students and parents, claimed that a Pennsylvania school district imposed harsher conditions on the school out of racial and religious animus. Most of the students in the school are African-American or Hispanic, and the school's former CEO was associate pastor of Shawnee Tabernacle Church, which several trustees attended as well. This opinion grows out of an amended complaint filed after a 3rd Circuit decision in the case. The court dismissed claims under the free exercise clause of the Pennsylvania constitution because plaintiffs raised only the freedom of worship rights of the school's officers and trustees, not their own rights. However the court permitted plaintiffs to move ahead with claims of religious, racial and national origin discrimination under the equal protection clause of the Pennsylvania constitution.  The court also permitted individual plaintiffs to proceed under Title VI of the 1964 Civil Rights Act on their racial and national origin discrimination charges, but held that the charter school itself could not sue under Section 1983.

Recent Articles of Interest

From SSRN:

• Sylvie Langlaude, Lautsi v. Italy: Coercion and Lack of Neutrality in the Classroom?, (6 Annuaire Droit et Religions 601-617, 2012-2013, Forthcoming).
• Jason N. Summerfield, Comments on the Potter's Field: Burial Policy in New York City, (January 1, 2012).
• Mark A. Hicks, The Art of Ecclesiastical War: Using the Legal System to Resolve Church Disputes, (Liberty University Law Review, Vol. 6, p. 531, 2012).
• Iain T. Benson, Two Errors in Relation to Respecting Religious Rights: Driving a Wedge between Religion and Ethics/Morals and Treating All Kinds of Religious Employers the Same, (August 1, 2012).
• William S. Brewbaker, Government for the Time Being, (Matters of Faith, Austin Sarat, ed., Cambridge University Press, 2012).
• Ronald J. Colombo, The Naked Private Square, (Hofstra Univ. Legal Studies Research Paper, Oct. 21, 2012).
• Nahel N. Asfour, Law and Literature: Jewish and Christian Models, (Pólemos: Journal of Law, Literature and Culture, Berlin: De Gruyter, Vol. 6, No. 2, pp. 263-280, 2012).
• Saadiah Mohamad, Azlin Alisa Ahmad and Ahahida Shahimi, Innovative Islamic Hedging Products: Application of Wa'd in Malaysian Banks, (Capital Markets Review, Vol. 19, No.1 & 2, pp. 33-51, 2011).
• Nassef Manabilang Adiong, Ideology that Spawns Islamist Militancy, (in Frank Shanty (Ed.), Key Issues Impacting Counterterrorism Strategy, Vol. 1: Combating Modern Terrorism (1968-2011), pp. 253-258, Santa Barbara, CA: ABC-CLIO).
• Peter K. Yu, The Confucian Challenge to Intellectual Property Reforms, (WIPO Journal, Vol. 4, 2012).

From SmartCILP:

• John M. Bickers, Standing on Holy Ground: How Rethinking Justicability Might Bring Peace to the Establishment Clause, 60 Cleveland State Law Review 415-459 (2012).
• Marc Rohr, Can the City Council Praise the Lord? Some Ruminations About Prayers At Local Government Meetings, [Abstract], 36 Nova Law Review 481-495 (2012).

Egyptian Lawyers File Complaint With Prosecutor Against El Baradei Over His Criticism of Islamists

As previously reported, last Friday Islamists in Egypt held a demonstration in Cairo's Tahrir Square demanding that the assembly drafting the country's constitution include language giving more deference to Islamic law. The same day, reformist Dostour Party chairman Mohamed El Baradei spoke to a news conference in Aswan, urging various political groups to come together and criticizing the Islamists, calling them "the clowns of religion who call people infidels and secularist as they please and act as if they have moral authority over us." (Egypt Daily News). Now Ahram Online reports that today 40 Egyptian lawyers filed a complaint with the prosecutor general accusing El Baradei of offending Islamists, opposing Islamic sharia law and insulting prominent Islamist preachers.

Recent Prisoner Free Exercise Cases

In Krieger v. Brown, (4th Cir., Nov. 8, 2012), the 4th Circuit held that an inmate had not shown that his practice of Asatru was substantially burdened by the denial of an outdoor worship circle and various requested sacred items.

In Armstrong v. Etchebehere, 2012 U.S. Dist. LEXIS 158485 (ED CA, Nov. 5, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's claims that staff and the Catholic Chaplain blocked previously approved Islamic programs such as Jumm'ah prayer and religious objects such as a prayer rug, Thikr beads and prayer oils, and deprived him of the Eid celebration was in retaliation for his filing grievances.

In Terrell v. Hendricks, 2012 U.S. Dist. LEXIS 159080 (D NJ, Oct. 25, 2912), a New Jersey federal district court dismissed with leave to amend an inmate's claim that he was denied the right to practice his Muslim religion while in punitive segregation.

In Booker v. Tokarz, 2012 U.S. Dist. LEXIS 159837 (SD NY, Nov. 7, 2012), a New York federal district court permitted a Muslim inmate to move ahead with his claims that conditions in the special housing unit substantially burdened his practicing his religion. He could not attend Jum'ah services or make Fithra (the removal of body hair).

In Dickerson v. Gusman, 2012 U.S. Dist. LEXIS 159611 (ED LA, Nov. 6, 2012), a Louisiana federal district court approved a magistrate's recommendations (2012 U.S. Dist. LEXIS 159609, Oct. 2, 2012)  and permitted an inmate to proceed with his complaint that he is being denied the ability to participate in congregational prayer with other Muslims.

In Spivey v. Taylor, 2012 U.S. Dist. LEXIS 158760 (SD IL, Nov. 6, 2012) an Illinois federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 159741, Oct. 19, 2012) and dismissed an inmate's complaint that a correctional officer refused to provide him with his Jewish Bible for two days.

In Njos v. Carney, 2012 U.S. Dist. LEXIS 160564 (MD PA, Nov. 8, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 161168, Sept. 12, 2012) and permitted an inmate to proceed against 3 prison chaplains on claims that they refused to furnish him kosher meals as well as juice and matzohs each week for the Sabbath. The chaplains asserted that plaintiff's beliefs were not sincere. Plaintiff's believed that non-kosher foods could be blessed by him to meet kosher standards. Various other claims were dismissed.

Charles Darwin Gets 4000 Write-Ins Against Evolution Opponent In Georgia

Congressman Paul Broun is a physician who represents Georgia's 10th District in the U.S. House of Representatives. Particularly because he is a member of the House Science, Space, and Technology Committe, he attracted attention last month when a portion of a September speech he made at the 2012 Sportsman's Banquet at Liberty Baptist Church in Hartwell, Georgia became public.  Huffington Post reports that Broun said in part:

God's word is true. I've come to understand that. All that stuff I was taught about evolution and embryology and the big bang theory, all that is lies straight from the pit of Hell. It's lies to try to keep me and all the folks who were taught that from understanding that they need a savior.

The speech particularly irked some at the University of Georgia which is located in Broun's district. However, Broun was running unopposed in this past week's election.  So, as reported by the Athens Banner-Herald, plant biology professor Jim Leebens-Mack started a Facebook page to encourage voters to write in "Charles Darwin" instead of voting for Broun, even though the votes would not count because Darwin was not certified as a write-in candidate. The official results show Broun receiving 211,022.  However it is reported that "Darwin" received nearly 4,000 write-ins.

Court Continues Order For State To Home School Senior Who Objects To Immunizations

West Virginia is one of two states that have no religious exemption from requirements that students obtain immunizations before they can attend school.  AP reports that on Thursday, a West Virginia trial court continued a previously issued injunction requiring the Randolph County Board of Education to provide home instruction to high school senior Olivia Hudok who refuses immunizations for religious reasons.  Hudok and her father sued in September seeking an order allowing her to attend the county's small public school-- Hudok is one of only 3 seniors. The court instead ordered home instruction while a suit challenging the immunization rule played out in another county. That suit upheld the requirements, and the school board unsuccessfully then sought a dismissal of the preliminary injunction. The court however said the Randolph County injunction will continue until the West Virginia Supreme Court gives some guidance in the area.

Evangelist Sues College Over Access To Open Campus Area

The Rapid City (SD) Journal reports on a federal lawsuit filed last Thursday against the South Dakota School of Mines & Technology by evangelist Mark Gavin over access to campus areas to preach.  Gavin wants to preach on the "quad," a grassy area outside the student center. University officials insist that he comply with the rules for commercial activities-- pay a $50 fee and be limited to a table inside the student center. The suit claims the restriction infringes Gavin's free speech rights.

Islamists In Egypt Demonstrate For Stronger Deference To Shari'a In New Constitution

In Egypt today, more than 10,000 conservative Muslims demonstrated in Cairo's Tahrir Square demanding that Egypt's 100-member constitutional assembly which is drafting the county's new constitution include language in the document that gives more weight to Shari'a law.  According to AP, secularists and liberals want the new document to carry over the language from Art. 2 of the present Constitution: "Principles of Islamic law ( Shari’a) are the principal source of legislation." The Islamic demonstrators, on the other hand, want the new section to provide that "the rulings of Shari'a" will be the basis for legislation. This is seen as giving more power to religious scholars to control the content of Egyptian law.

Plane Gets Military Escort As Passenger Insists On Praying In Aisle During Landing

A United Airlines flight from Denver to Washington, D.C. got a military escort into Washington's Dulles airport last night after the crew reported an emergency.  According to the Chicago Tribune and KUSA-TV, as the plane was preparing to land, a male passenger, instead of following flight crew instructions, stood up in the middle of the aisle and began to pray, apparently acting in a disorderly manner. After the plane landed, police and paramedics took the passenger off in handcuffs.

Court Requires Street Preacher To Stay Back From School Bus Stops

In Central Dauphin School District v. Garisto, (PA Com. Pl. Ct., Sept. 20, 2012), a Pennsylvania Dauphin County trial court, in a suit by a school district, issued a permanent injunction requiring a street preacher to stay at least 20 yards away from any school bus stop at which children are waiting to board or de-board buses.  Street preacher Stephen Garisto for at least 4 years has handed out Gospel tracts and spoken with school students at a school bus stops. The court concluded that a school bus stop, even though it is on a public sidewalk, is a non-public forum, so speech restrictions are permissible if they are viewpoint neutral and reasonable. The court said:

Certainly the School District has a strong interest in preventing an adult stranger from approaching captive audience school children and engaging them in conversation, handing out pamphlets, stopping them as they get off a school bus or pursuing them as they walk away therefrom.

The Central Pennsylvania Patriot-News reports on the decision.

Czech Parliament Passes Restitution To Churches For Nationalized Property

According to BosNewsLife yesterday, the Czech Parliament has approved a plan to provide restitution to churches whose property was nationalized after the Communist takeover of Czechoslovakia in 1948. Negotiations over the claims have been going on for several years. (See prior posting.) Under the legislation, churches will receive property and compensation totaling $7 billion over 30 years. Among the property that will be returned is some 6% of the country's forests and fields that once belonged to Christian churches. The bill now goes to President Vaclav Klaus for his signature, but he has expressed reservations about the legislation. However the bill received enough votes so that any veto is likely to be overridden.

Suit Charges Town With Forcing Property Owner To Display Church Sign

According to the Wilkes-Barre (PA) Citizens Voice and the Wilkes-Barre Times-Leader, a former member of the Shickshinny (PA) borough council filed suit in federal court Wednesday, alleging that the borough and various of its current and former council members are unconstitutionally forcing her to support a religion by placing a church sign in her yard without her consent.  Francene Tearpock-Martini says that in 2008 council approved the request of a local church to place a sign reading "Bible Baptist Church Welcomes You" on her property, even though she told the church and council that she objected. At one point the sign fell down and the borough reinstalled it with poured concrete.

Analysis of Tuesday's Results By Religion of Voters

Pew Forum yesterday published its preliminary analysis, based on exit polls, of Tuesday's presidential vote by religion, race and worship attendance. Gov. Romney did best among White Protestant born-again and evangelical voters- 79%.  He received 69% of all White Protestant votes and 59% of White Catholic votes. He received 30% of the Jewish vote, up significantly from the 21% received by John McCain in 2008. Romney received 78% of the Mormon vote.

President Obama did best among Black Protestants- 95%.  He received 75% of the Hispanic Catholic vote and 68% of the Jewish vote.  He received 74% of the votes of those who listed themselves as being of some faith other than Christian or Jewish, and 70% of the vote of those who are religiously unaffiliated. He received 21% of the Mormon vote.

Broken down by attendance at worship services, Romney received 59% of the votes of those who attend services at least weekly, while Obama received 62% of the votes of those who never attend worship services. Protestants made up 53%, Catholics 25%, Jews 2%, and other faiths 7% of the total electorate.

Court Rejects Challenge To Scope of Fish and Wildlife Service's Bald Eagle Permit

In Northern Arapaho Tribe v. Ashe, (D WY, Nov. 5, 2012), a Wyoming federal district court upheld the action of the U.S. Fish and Wildlife Service that granted Northern Arapaho tribe members permission to kill up to two bald eagles per year for religious purposes, but not on their own reservation in west-central Wyoming. The court held that plaintiffs lack standing to seek declaratory and injunctive relief in their challenge to the two and a half year delay in granting of the permit because they are unlikely to suffer similar delays in the future. Then the court rejected plaintiffs' claim that their rights under the Religious Freedom Restoration Act were violated by the limitation in their permit that prevents them from taking eagles on the Wind River Reservation that they share with the Eastern Shoshone tribe. The Eastern Shoshones oppose the taking of eagles on the reservation for religious and cultural reasons.  The court upheld the exclusion, saying:

The FWS was between a rock and a hard place. No matter what policy it chose---either allowing or disallowing eagle take within the Reservation-it would have furthered its compelling interest with regard to one tribe and disserved its compelling interest with regard to the other....  The FWS's alternative advances and balances the FWS's competing compelling interests in fostering and protecting both tribes' cultures and religions.

(See prior related posting.) AP reports on the decision.

UPDATE: The court refused to certify its order for interlocutory appeal. 2013 U.S. Dist. LEXIS 36443 (D WY, Jan. 23, 2013).

Other Election Results of Interest

In Tuesday's election, former Alabama chief justice Roy Moore won in his quest to again hold that office.  Moore captured 52% of the vote. (Results). As reported by AL.com, Moore, a Republican, defeated his Democratic challenger, Jefferson County Circuit Judge Bob Vance.  When Moore previously served as chief justice, he was removed from office for refusing to comply with a federal court order to dismantle a 5,200 pound granite Ten Commandments monument in the lobby of the state judicial building.

Iowans voted Tuesday to retain state Supreme Court Justice David Wiggins on the court. Opponents of same-sex marriage had urged a vote against retention because Wiggins was one of the 7 justices who voted in 2009 to invalidate the state's law that had barred recognition of same-sex marriages. Wiggins received a 54.6% vote in favor of retention. (Results.) Three other of justices who voted in favor of same-sex marriage in the 2009 case lost their bid for retention in the 2010 election. (Des Moines Register).

Tulsi Gabbard, who won the race for U.S. House of Representatives in Hawaii's 2nd Congressional district on Tuesday, becomes the first Hindu member of the U.S. Congress. (IndiaWest).

Mazie Hirono, currently representing Hawaii's 2nd District in the U.S. House of Representatives, won her bid for election from Hawaii to the U.S. Senate. She becomes the first Buddhist member of the U.S. Senate. (Wall Street Journal).

Same-Sex Marriage Proponents Win 4 Out of 4 Yesterday

In four states yesterday, voters approved of same-sex marriage.  In Washington state (official results), voters passed Referendum Measure 74 by a vote of 51.79% for approval, and 41.21% for rejection. The referendum approved the same-sex marriage law that the legislature passed earlier this year. Seattle Times reports on the measure.

In a Maryland referendum, voters approved (official results) the Civil Marriage Protection Act that had been enacted earlier this year by the state legislature. The vote on the referendum, Question 06, was 51.9% for the law, and 48.1% against the law. Washington Post reports on the vote.

In Maine, with 75% of the precincts reporting, it appears that voters have approved Question 1, authorizing the issuance of marriage licenses to same-sex couples. The vote so far is 53% in favor and 47% opposed. (Results). Boston Globe reports on the vote.

In Minnesota (official results), voters defeated a state constitutional amendment that would have provided that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota. With almost 99% of the precincts reporting, only 47.65% voted in favor of the amendment. Duluth News Tribune reports on the vote.

Florida Voters Defeat Religious Freedom Amendment; Anti-Abortion Amendment

Florida voters yesterday (official results) defeated Amendment 8, the proposed Religious Freedom Amendment, that would have repealed the state's Blaine Amendment-- the state constitution's ban on public funds going to religious institutions. It would have cleared the way for religious institutions to participate on an equal footing with secular ones in government programs and funding, to the extent permitted by federal law. The vote on Amendment 8 was 44.47% for approval; 55.53% for rejection. A 60% affirmative vote was needed for passage.

Voters also defeated Amendment 6 which, with some exceptions, would have barred the use of public funds to pay for abortions or for insurance coverage for abortions. The vote was 44.95% for approval; 55.05% for rejection. A 60% affirmative vote was required for passage.  The Tampa Bay Times reports on the results.

10th Circuit Vacates Injunction Against Utah's Reformation of FLDS Trust

In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Horne, (10th Cir., Nov. 5, 2012), the 10th Circuit Court of Appeals rejected on procedural grounds a constitutional challenge by the polygamous FLDS Church to Utah's reformation of the FLDS United Effort Plan Trust. Last year, a federal district court issued a preliminary injunction, finding that the state had impermissibly entangled itself with religion in reforming and managing a religious trust.  The 10th Circuit, ordering the injunction vacated, concluded that FLDS should be precluded from bringing the constitutional challenge. Federal courts should give full faith and credit to the Utah Supreme Court's decision that under the doctrine of laches the FLDS waited too long to challenge the state court proceedings. Reporting on the decision, KSL-TV says: "The ruling breaks a legal logjam surrounding $100 million worth of property Warren Jeffs, former leader of The Fundamentalist Church of Jesus Christ of Latter-Day Saints, once controlled."

Group Charges Catholic Bishops Conference Engaged In Prohibited Political Activity

Last week, Citizens for Responsibility and Ethics in Washington announced that it has filed a complaint asking the Internal Revenue Service to investigate whether the U.S. Conference of Catholic Bishops and its members have engaged in partisan political activity in violation of the Internal Revenue Code provisions regulating activities of non-profit organizations.  Their letter to the IRS (full text) says that:

According to press reports, a number of Catholic Bishops "are making forceful last-minute appeals to vote on election day" and at the same time, assailing the policies of the Obama administration as anti-Catholic.

Bankruptcy Court Settlement of Dispute Over Sikh Assets Approved

A federal bankruptcy court in Oregon yesterday approved a settlement agreement in a dispute over assets of a Sikh religious community.  According to the Eugene (OR) Register-Guard:

The feuding religious leaders and business leaders of the Sikh community founded by the late Yogi Bhajan agreed to drop their legal claims against each other. They will move on with an orderly give-and-take of payments and a transition to new leadership for the community’s for-profit companies, including East West Tea Company LLC.... Under the settlement agreement, former Eugene resident and prominent local businessman Kartar Singh Khalsa, will resign from the Unto Infinity management board that controlled the Sikh community’s for-profit companies and religious and educational charities.

Churches' Challenge To Hawaii Civil Union Law Dismissed

In Emmanuel Temple, The House of Praise v. Abercrombie, 2012 U.S. Dist. LEXIS 157950 (D HI, Oct. 2, 2012), a Hawaii federal district court dismissed a constitutional challenge to Hawaii's Civil Unions Law. Plaintiffs complained that the Act chills their free exercise of religion because it does not exempt churches from Hawaii's anti-discrimination laws. However the suit was filed before a 2012 amendment to the law that provides no religious organization shall be required to make their religious facility available for solemnizing civil unions if the facilities are currently limited to use for marriages only by members. The court held that the complaint as filed is moot because of the amendment to the law.  It also held that plaintiffs should not be allowed to amend their complaint to challenge the conditions on the exemption imposed by the 2012 amendment. According to the court, plaintiffs have not shown that they have standing or that the action is ripe for adjudication:

any threat of enforcement and imposition of fines by government officials ... for violating the Civil Unions Law is highly speculative. No one has asked Plaintiffs to use their facilities for a civil union. No one has inquired about such use in the days following Act 1's effective date. And, the record contains no indication that, in the nine months since its implementation, any couple has sought to use Plaintiffs' facilities in relation to solemnizing a civil union. Plaintiffs cannot say when and under what circumstances such a request might be made, if ever.

More Catholic Businessmen Sue Challenging ACA Contraceptive Coverage Mandate

Last week, one more lawsuit challenging the contraceptive coverage mandate under the Affordable Care Act was filed-- this time in federal district court in Minnesota.  The complaint (full text) in Annex Medical, Inc. v. Sebelius, (D MN, filed 11/2/2012), alleges that the individual plaintiffs are two devout Catholic businessmen, one of whom owns co-plaintiff Annex Medical, and the other of whom plans to buy a business in 2013. The plaintiffs:

believe that paying for a group health insurance plan that complies with Defendants’ Mandate is sinful and immoral because it requires them and/or the businesses they control to pay for contraception, sterilization, abortifacient drugs and related education and counseling in violation of their sincere and deeply-held religious beliefs and the teachings of the Catholic Church.

The complaint lists a number of business decisions made by plaintiffs in the past based on their religious values, including a decision by one of the plaintiffs last June to accept a below-market value offer for his former business, in part to avoid having to conform its group health plan to the mandate. The law firm representing plaintiffs issued a press release announcing the filing of the lawsuit.

NY Governor Criticizes Rabbi's Comments Blaming Sandy On Same-Sex Marriage

Yesterday, New York Gov. Andrew Cuomo issued a press release strongly criticizing comments made by Rabbi Noson Leiter, Executive Director of Torah Jews for Decency. Leiter in an appearance on VC America's Crosstalk (audio recording of program) blamed the flooding from Hurricane Sandy in New York on the state's legalization of same-sex marriage. Cuomo said in part:

The comments made by Rabbi Noson Leiter that sought to link the devastation caused by Hurricane Sandy to our state's embrace of marriage equality are as offensive as they are ignorant.... This kind of hateful rhetoric has no place in our public discourse, and is particularly distasteful in times of tragedy.... I call on Rabbi Leiter to apologize immediately for his hurtful comments.

Vos Iz Neias? also reports on these developments.

Virginia County Allows Wiccan Priestess To Officiate At Weddings

Americans United reports that last month Arlington County, Virginia officials relented on an earlier refusal and have issued an order permitting a Wiccan high priestess to officiate at wedding ceremonies. Literata Hurley appeared to meet the requirements of Va. Code Sec. 20-23 for approval. She was ordained by the Order of the White Moon, a non-profit organization. Initially the clerk of court refused to approve her because her congregation has no permanent location, but meets in members' homes or outdoors.

Down-Ballot Votes To Watch Tomorrow

While the Presidential contest obviously looms largest at the polls tomorrow, those interested in church-state and religious liberty issues are watching a number of down-ballot issues and contests.

• Florida's Amendment 8 would remove the state constitution's ban on public funds going to religious institutions and instead would ban, to the extent consistent with the federal Constitution, the government from denying participation in funding or programs on the basis of religious identity or belief. (Background from Naples Daily News).
  
• Four states have same-sex marriage issues on the ballot: Maine (Question 1); Maryland (Question 6); Minnesota (Proposed Amendment 1); and Washington (Referendum Measure 74).
  
• Two states have ballot issues relating to abortion. Florida: Amendment 6 which, with limited exceptions, would prohibit the use of public funds for abortion. Montana: Legislative Referendum 120 would, with some exceptions, require physicians to notify parents 48 hours before performing an abortion on a minor under 16.

Also two votes on state supreme court justices are of particular interest:

• In Alabama, former state Supreme Court Chief Justice Roy Moore (known for his defense of a 10 Commandments monument in Alabama's Judicial Building) is again running for that office against Democrat Robert Vance (whose father, a federal appeals court judge, was assassinated by a mail bomb in 1989). (Background on the contest from AP).
• In Iowa, state Supreme Court Justice David Wiggins faces significant opposition from same-sex marriage opponents in his retention election.  Wiggins was one of the 7 justices who in a 2009 case voted to invalidate the state's law that had barred recognition of same-sex marriages. (See prior posting.)

Supreme Court In Summary Opinion Says Pro-Life Demonstrator Was Prevailing Party For Attorney Fee Award

Today, in a per curiam opinion issued without calling for briefing or oral arguments, the U.S. Supreme Court in  Lefemine v. Wideman, (Docket No. 12-168, decided 11/5/2012)  (full text, scroll to end of Order List) held that a member of Columbia Christians for Life who obtained a permanent injunction, but no monetary damages was a "prevailing party" and entitled to an award of attorneys' fees, unless on remand the lower courts find special circumstances that should preclude an award. In a 2005 anti-abortion demonstration at a busy intersection in Greenwood County, South Carolina, police officers threatened to charge picketers with breach of the peace if they did not get rid of signs picturing aborted fetuses. The lower courts permanently enjoined officials from engaging in such content-based restrictions. However, finding qualified immunity, the courts denied the request for nominal damages as well as for attorneys fees. The Supreme Court said:

Because the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff, we vacate the Fourth Circuit’s decision and remand for further proceedings.

(See prior posting.) SCOTUSblog reports on today's decision.

Law On Damage To Church Property Survives Establishment Clause Challenge

In People v. Chambliss, 2012 Ill. App. Unpub. LEXIS 2653 (IL App., Nov. 1, 2012), an Illinois appellate court upheld against an Establishment Clause challenge an Illinois law (720 ILCS 5/21-1(d)(1)(C)) that makes damage to property of a place of worship, a school or agricultural equipment or property a greater offense than damage to other property. The court held that the legislature had a secular purpose in focusing on property in need of enhanced protection.

Shariah Courts Role Expands In Egypt's Sinai Peninsula

According to the Wall Street Journal last Friday, in Egypt's Sinai Peninsula Shariah courts are proliferating to fill the void in governmental services. Islamic courts have long operated in the Sinai to adjudicate minor disputes among individuals, but since the revolution they are expanding their role. According to Sheikh Asaad al Beek who oversees the Shariah judges, the caseload has risen from 50 cases two years ago to an expected 900 before this year is out. This is 75% of the caseload formerly handled by Egypt's civil courts in the Sinai. The Shariah courts presently operate like arbitration panels, with the parties agreeing in advance to follow its rulings.  The sheikhs often attempt to mediate cases presented to them, and many cases are resolved by the court merely ordering one of the parties to apologize. Apparently there have been some discussions with police about getting officers to enforce Shariah court rulings.

Recent Articles of Interest

From SSRN:

• Jennifer L. Wright, Religious Law Schools and Democratic Society, (Howard Law Journal, 2013, Forthcoming).
• Marc O. DeGirolami, The Punishment Jurist, (Foundational Texts in Modern Criminal Law, Markus Dubber, ed., Oxford University Press, Forthcoming).
• Mark Strasser, Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution, (Virginia Journal of Social Policy and the Law, Vol. 109, pp. 400-49, 2012).
• Richard J. Ross, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses, (Past and Present 217, November 2012: 79-115).
• Mirjana Stankovic, The Earth Revolves Around the Sun? How Science, Religion and Law Come Together, (November 1, 2012).
• Paul Finkelman, Toleration and Diversity in New Netherland and the Duke's Colony: The Roots of America's First Disestablishment, (T. Jeremy Gunn and John Witte, Jr. eds., No Establishment of Religion: America's Original Contribution to Religious Liberty 125-157, Oxford University Press, 2012).
• Wassim S. Daher, The Origin of Law in Shi’ite Islam, (September 25, 2012).
• Menachem Mautner, A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study, (Religious Revival in a Post-Multicultural Age, S. Lavi & R. Provost, eds., 2013 Forthcoming).
• Steven Ferrey, Earth, Air, Water and Fire: The Classical Elements Confront Land and Energy, (Journal of Land Use & Environmental Law, Vol. 27, p. 259, 2012).
• James G. Dwyer, The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law, (Cardozo Law Review, Vol. 32, No. 5, p.178, 2011).

From SmartCILP and elsewhere:

• Symposium: Patriarchal Religion, Sexuality, and Gender. Introduction by Shannon Gilreath; articles by Nicholas Bamforth, David A.J. Richards and Jane Caputi, 1 Wake Forest Journal of Law & Policy 197-324 (2011).
• The Nov. 2012 Issue of Church & State has recently appeared.

Recent Prisoner Free Exercise Cases

In Muhammad v. Sapp, (11th Cir., Nov. 1, 2012), the 11th Circuit affirmed the dismissal of an inmate's claim that the Department of Corrections shaving and forced shaving policies violated his free exercise and RLUIPA rights, and also rejected his 8th Amendment claim growing out of his forced shaving with chemical agents.

In Ouahman v. Barnes, 2012 U.S. Dist. LEXIS 153493 (D NH, Oct. 25, 2012), a New Hampshire federal district court approved a magistrate's recommendation (2012 U.S. Dist. LEXIS 153508, Oct. 1, 2012) and dismissed an inmate's claim that he was denied a Qur'an, a prayer rug and the ability to observe Ramadan.

In Emmett v. Affey, 2012 U.S. Dist. LEXIS 154535 (SD TX, Oct. 26, 2012), a Texas federal district court dismissed claims by an inmate who had changed his religious preference to Native American that he had been unable to transfer to a Native-American designated prison unit, that he was initially given an obsolete version of the Native American religious test, and that his second test was not submitted to the chaplaincy department. The court also dismissed his claim that Native American religious practitioners are discriminated against.

In Walker v. Iske, 2012 U.S. Dist. LEXIS 154780  (MD FL, Oct. 29, 2012), a Florida federal district court dismissed, with leave to amend, a Muslim inmate's complaint that he was not furnished with a diet that met the requirements of the Qur'an, even though Jewish prisoners could receive a kosher diet.

In Barstad v. Washington State Department of Corrections, 2012 U.S. Dist. LEXIS 155456 (WD WA, Oct. 30, 2012), an inmate sued claiming that the prison system's policy of consolidating all forms of vegetarian religious diets into one mainline alternative vegan diet violates his rights by requiring him to have a diet more restrictive than the ovo-lacto requirements of his religion. The court rejected the recommendation of the federal magistrate judge (2012 U.S. Dist. LEXIS 155503, Aug. 31, 2012) to dismiss the Department of Corrections and 30 defendants who were served by mail at inaccurate addresses.

In Fuller v. Prelesnik, 2012 U.S. Dist. LEXIS 155765 (WD MI, Oct. 31, 2012), a Michigan federal district court permitted an inmate to proceed against certain defendants on his claim that he was wrongly removed from the kosher food program and that the prison's program did not meet Michigan Department of Corrections kosher meal standards.

In Sledge v. Lundy, 2012 U.S. Dist. LEXIS 156346 (ED CA, Oct. 31, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that he received cold Halal meals while regulations called for hot meals.

In Keystone v. Hinkle, 2012 U.S. Dist. LEXIS 157042 (WD VA, Oct. 31, 2012), a Virginia federal district court dismissed an inmate's complaint that prison officials refused to use his now-legal name "Keystone" instead of the name under which he was committed, "Keyes." The court held in part that plaintiff had not sufficiently plead that the name change stemmed from religious motivations, and that at any rate the prison regulations have a legitimate penological purpose.

In Watkins v. Rogers, 2012 U.S. Dist. LEXIS 155879 (WD OK, Oct. 31, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 156956, Sept. 28, 2012) and dismissed without prejudice a former inmate's claim that he was denied a total of four religious meals over a two day period at a transfer center, and defendant in this case was involved in only one of those meals.

Court Questions Utah AG On Payment of Trustee Fees In FLDS Case

Attempts by the state of Utah to reform the polygamous FLDS Church's United Effort Plan Trust have been winding their way through state and federal courts for several years. As previously reported, last year State 3rd District Court Judge Denise Lindberg ordered the Utah Attorney General's Office to advance to court-appointed special fiduciary Bruce Wisan the several million dollars in unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. The order contemplated that the Trust would eventually reimburse the state for the fees. The costs were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property. However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. AP reports that on Friday, Utah attorney general Mark Shurtleff was put under oath by the court and questioned as to why the state has refused to pay the $5.6 million in fees that have now accumulated.

Shurtleff said his agency does not have the  money unless the legislature appropriates it. The state is concerned that it will never recover the funds if the U.S. 10th Circuit Court of Appeals upholds a federal district court ruling that the state's reformation efforts were unconstitutional. Judge Lindburgh urged the attorney general to use his best efforts to persuade the legislature to appropriate funds. She also said she will order the Utah and Arizona attorneys general to take over some of the legal work for the trust from court-appointed lawyers who are threatening to resign because they have not been paid.

Israeli Water Company Freezes Bank Account of Church of Holy Sepulchre

AP and AFP both report that in Israel, the bank account of the Church of the Holy Sepulchre in Jerusalem has been frozen in a dispute with the Hagihon water company over payment of some $2.1 million in water bills dating back decades.  The Greek Orthodox Church claims that the Church of the Holy Sepulchre-- believed to be by the site of Jesus' crucifixion-- has always been given special treatment and exempted from water fees. It objects to this change in the status quo, and threatens to shut down the church for a day in protest. It says that an agreement had been reached to cancel the past charges and have the various denominations in the church pay their current water charges in the future. But then unexpectedly the bank account was blocked two weeks ago, interfering with the church's paying priests, monks and teachers. [Thanks to Joel Katz (Religion & State In Israel) for the lead.]

In Tentative Decision, California Court Rejects Rocket Lab Employee's Claim He Was Fired Because of Intelligent Design Views

In California, a Los Angeles Superior Court judge has issued a tentative decision in favor of the Jet Propulsion Laboratory in the widely-followed suit against it by former employee David Coppedge. Plaintiff, who was a lead systems administrator in the Jet Propulsion Lab's Saturn project was demoted and eventually laid off.  He claims the actions were taken because he expressed opinions favoring intelligent design and opposing gay marriage.  The NASA rocket lab says he was demoted and fired because he was a problem employee for reasons that had nothing to do with his religious views. According to the Pasadena Sun, the court on Thursday indicated that it has tentatively decided to rule in favor of JPL on all aspects of the case.

No Florida Schools Have Used New Authority For Student-Led Inspirational Messages

As previously reported, last March Florida's legislature, at the urging of school prayer proponents, passed a new law authorizing school districts to adopt policies permitting inspirational messages to be composed and delivered by students at student assemblies. The Fort Lauderdale Sun Sentinel today reports that so far no school board in the state has implemented the new authority.  Immediately after the governor signed the bill, the ACLU and ADL wrote every school board in the state promising to sue if they adopted rules permitting student prayer.  The Florida Association of School Boards advised districts not to move ahead with implementation, since doing so would open them to litigation.

DC Circuit: Non-Liturgical Protestant Chaplains Have Standing To Pursue Discrimination Claim

In In re Navy Chaplaincy, (DC Cir., Nov. 2, 2012), the U.S. Court of Appeals for the D.C. Circuit reversed a district court's dismissal of a lawsuit by several former and current military chaplains who claimed that non-liturgical Protestant chaplains are discriminated against in the promotion recommendations of Chaplain Corps selection boards. Plaintiffs argued that the small size of selection boards, their secret voting on recommendations, and the appointment of the Chief of Chaplains as president of selection boards allow decisions to be made on the basis of religious bias. Reversing the district court, the Court of Appeals held that at least some of the plaintiffs-- those whose promotions will likely be considered in the future under the challenged policies-- have standing to pursue their claim for injunctive relief. The Court went on to reverse and remand the district court's denial of a preliminary injunction, saying that the trial court had not made factual findings to resolve the disputed claims of the parties as to whether past discrimination has been shown.

Lawsuit Challenges Christian Flag In City Veterans' Memorial Park

A federal lawsuit was filed yesterday against King, North Carolina alleging that flying a Christian flag  over a veterans' memorial in a city park violates the Establishment Clause as well as provisions of the North Carolina constitution. Plaintiff, Steven Hewett, is a decorated Army veteran who served in Afghanistan. The complaint (full text) in Hewett v. City of King, (MD NC, filed 11/2/2012), alleges :

2.... the City has exploited the memory of American soldiers for the purpose of promoting Christianity. When the City built a Veterans’ Memorial in the City’s Central Park, it included a Christian flag; no other religions were represented in the Memorial. When Mr. Hewett objected, the City Manager warned that Mr. Hewett would “answer to God and Jesus Christ”; the Mayor stated—at a City Council meeting, no less—that Mr. Hewett “needs us to pray for him.”

3. After its lawyer warned that its conduct was unconstitutional, the City purported to remove the flag; but it immediately established a sham “limited public forum” as a “plan for returning the Christian flag to the Veteran’s Memorial.” True to plan, under the so-called public forum, the very same Christian flag has flown at the Veterans’ Memorial all but a few weeks of every year. 

4. Flying the Christian flag is not the only way that the City promotes Christianity at the Veterans Memorial. Next to the Christian flag, the City built a statue of a soldier kneeling before a cross.... Official, City-sponsored events to commemorate Veterans’ Day, Memorial Day, and September 11 have consistently featured multiple Christian prayers delivered by City officials and invited clergy.

WMFY News reported on the filing of the lawsuit.

Christian College Sues Challenging Contraceptive Coverage Mandate

Add one more lawsuit to the dozens already filed challenging the contraceptive coverage mandate under the Affordable Care Act.  Yesterday, Criswell College in Dallas, Texas filed suit. The complaint (full text) in Crisell College v. Sebelius, (ND TX, filed Nov. 1, 2012), describes Criswell as "a Christ-centered institution of higher learning."  It alleges:

Criswell believes that the procurement, participation in, facilitation of, or payment for abortion (including abortion-causing drugs like Plan B and Ella) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His image as stated in his Word.

The suit alleges RFRA, 1st and 14th Amendment, and Administrative Procedure Act violations. Liberty Institute issued a press release announcing the filing of the lawsuit.

Church Gets Preliminary Injunction Under RLUIPA Against Zoning Ban

In Opulent Life Church v. City of Holly Springs, Mississippi, (ND MS, Nov. 1, 2012), in a case on remand from the 5th Circuit (see prior posting) a Mississippi federal district court granted a TRO and a preliminary injunction against enforcement of a total zoning ban on religious congregations in the area where plaintiff church's property is located. Invoking the "equal terms" provision of RLUIPA, the court, echoing the 5th Circuit, held that the city's justification of the ban as creating a commercial district fails because it permits other non-commercial, non-tax generating uses in the area. The court also concluded that the threatened injury to the church outweighs any harm the city will suffer from the temporary injunction. Liberty Institute issued a press release announcing the decision.

Bishop Issues Pre-Election Letter To Be Read At All Masses In Peoria Diocese

Bishop Daniel R. Jenky, head of the Catholic Diocese of Peoria, Illinois, has issued a letter on religious liberty and the election (full text) which is to be read at all masses on Nov. 3-4, the weekend before election day. The letter reads in part:

Since the foundation of the American Republic and the adoption of the Bill of Rights, I do not think there has ever been a time more threatening to our religious liberty than the present. Neither the president of the United States nor the current majority of the Federal Senate have been willing to even consider the Catholic community’s grave objections to those HHS mandates that would require all Catholic institutions, exempting only our church buildings, to fund abortion, sterilization, and artificial contraception....

Today, Catholic politicians, bureaucrats, and their electoral supporters who callously enable the destruction of innocent human life in the womb also thereby reject Jesus as their Lord. They are objectively guilty of grave sin. For those who hope for salvation, no political loyalty can ever take precedence over loyalty to the Lord Jesus Christ and to his Gospel of Life....

I therefore call upon every practicing Catholic in this Diocese to vote. Be faithful to Christ and to your Catholic Faith. 

The Chicago Tribune yesterday reported on the Bishop's letter.

Preliminary Injunction Granted In Catholic Business Owner's Challenge To Contraceptive Coverage Mandate

In Legatus v. Sebelius, (ED MI, Oct. 31, 2012), a Michigan federal district court issued a preliminary injunction under RFRA barring the government, at least for the time being, from enforcing the contraceptive coverage mandate under the Affordable Care Act against Weingartz Supply Co., a family-owned business, and Daniel Weingartz who serves as the company's president. Weingartz, as a Catholic, has religious objections to his company participating in or providing health insurance that includes contraceptive coverage. (See prior related posting.) Another plaintiff in the lawsuit was Legatus, a non-profit organization devoted to reinforcing the Catholic faith in its members' business, personal and professional lives.  The court concluded that Legatus lacks standing to challenge the mandate because it is covered by the government's temporary non-enforcement safe harbor. However, that safe harbor is unavailable to for-profit businesses, and the court held that the remaining plaintiffs thus had standing:

Weingartz Supply Co. was founded as a family business and remains a closely held family corporation.  Accordingly, the court need not, and does not, decide whether Weingartz Supply Co., as a for-profit business, has an independant [sic.] First Amendment right to free exercise of religion.  For the purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as “his company.”

Moving to whether on the merits a preliminary injunction under the Religious Freedom Restoration Act should be granted, the court said:

Plaintiffs have made some showing, but not strongly so, of a likelihood of success on the merits, and the Government has made some showing, but not strongly so, of advancing a “compelling” interest by the “least restrictive means.” ... The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.  The balance of harms tips strongly in Plaintiffs’ favor.  A preliminary injunction is warranted.

Thomas More Law Center issued a press release announcing the court's decision. Reuters reports on  the decision. [Thanks to Rabbi Michael Simon for the lead.]

UN Special Rapporteur Focuses On Right To Religious Conversion and Freedom From Forced Conversion

According to a UNHR press release, last week United Nations Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, presented to the General Assembly a report prepared in August (full text) that focuses on the right of religious conversion, as well as the right not to be forced to convert. The report says in part:

Countless reports of grave violations  of the right to freedom of religion or belief relate to converts and those who try to convert others by means of non-coercive persuasion. This has become a human rights problem of great concern which occurs in various parts of the world and seems to stem from different motives. For instance, abuses are perpetrated in the name of religious or ideological truth claims, in the interest of promoting national identity or protecting societal homogeneity, or under other pretexts such as maintaining political and national security. While some undue restrictions on the rights of converts or those trying non-coercively to convert others are undertaken by State agencies, other abuses, including acts of violence, stem from widespread societal prejudices. Violations in this sensitive area also include forced conversions  or reconversions, again perpetrated either by the State or by non-State actors....

Is "Vote the Bible" T-Shirt Electioneering By Voter?

Texas Election Code Sec. 85.036 prohibits electioneering within 100 feet of an early polling location.  Apparently based on this section, a poll worker in Williamson County, Texas last week required a voter to put on a jacket to cover the words "Vote the Bible" on her T-shirt before the worker would allow the voter to cast a ballot.  According to a press release and complaint letter yesterday by Texas Values, the poll worker told voter Kay Hill that her shirt might be offensive to some people. The Williamson County Election Administrator later told Hill that the worker probably felt that the phrase meant "vote Republican." Texas Values says it will file a formal complaint with the Texas Secretary of State's Office if county election officials do not issue an apology and inform the public and election workers that "Vote the Bible" T-shirts are permissible. Texas Election Code Sec. 61.003 imposes the same ban on electioneering at polls on election day.

Poland's Supreme Court Rules "Offending Believers" Prosecution Does Not Require Specific Intent

The Guardian reports on an Oct. 29, 2012 decision (full text in Polish) by Poland's Supreme Court which held that a member of the heavy metal band Behemoth can be prosecuted under Polish Criminal Code Sec. 196 for offending religious sensibilities even if he did not have the "direct intention" of offending believers. The court held that:

The crime of offending religious sensibilities is committed not only by he who intends to carry it out, but also by he who is aware that his actions may lead to offence being taken.

The prosecution grew out of a 2007 concert in which band member Adam Darski (also known as "Nergal"), appearing in full costume, tore up a Bible and said the Catholic church is "the most murderous cult on the planet." Apparently the defendant argued both that this is protected artistic expression, and second, that because this was a well-known part of their act, fans came expecting it and would not be offended. (See prior related posting.)

Massachusetts High Court Grants Direct Review In Pledge Case

The Massachusetts Supreme Judicial Court last week granted an application for direct appellate review of a trial court's decision in Doe v. Acton-Boxborough Regional School District, a case brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was a reference to the historical and religious traditions of the United States and did not turn the Pledge into a religious exercise nor violate anti-discrimination requirements. No student is required to take part in the recitation, but plaintiffs argued that the recitation marginalizes them and classifies them as unpatriotic. (See prior posting). The American Humanists Association issued a press release announcing the Supreme Judicial Court's grant of review, as did the Becket Fund on the other side of the case. [Thanks to Bob Ritter for the lead.]