Recent Prisoner Free Exercise Cases

In Blount v. Phipps, 2013 U.S. Dist. LEXIS 31760 (WD VA, March 6, 2013), a Virginia federal district court dismissed complaints by a Muslim inmate that correctional officers delayed in returning two confiscated religious books, and that officials forced him to violate his Ramadan fast by refusing to alter the pill pass schedule.

In Bayadi v. Mathena, 2013 U.S. Dist. LEXIS 31757 (WD VA, March 5, 2013), a Virginia federal district court permitted a Sunni Muslim inmate to proceed, at least for now, with his RLUIPA claim for injunctive relief in which he complains officers refused to accommodate his need to grow a beard for religious reasons. The court gave defendants 30 days to file a second motion for summary judgment dealing with compelling interests and least restrictive means.

In Scott v. Erdogan, 2013 U.S. Dist. LEXIS 31703 (MD PA, March 4, 2013), a Pennsylvania federal district court adopted only in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 30423, Jan. 30, 2013) and allowed a Muslim inmate to proceed with his complaint against two defendants. Plaintiff alleged that the prison system only provided services and instruction in Wahabi Islam, and that this infringed his right to practice orthodox Sunni Islam. Plaintiff also complained about certain practices during Ramadan.

In Alvarez v. Cate, 2013 U.S. Dist. LEXIS 32577 (ND CA, March 8, 2013), a California federal district court refused to grant summary judgment to defendants on RLUIPA and free exercise claims by an inmate whose drawings of various Aztec symbols were confiscated when he attempted to mail them to his family. Prison authorities claimed the drawings promote gang activity. The case was referred to the pro se prisoner mediation program.

In Cejas v. Myers, 2013 U.S. Dist. LEXIS 33393 (ED CA, March 11, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that Buddhist inmates are being denied access to the chapel for services without a chaplain or custody officer present.

In Davis v. Castelloe, 2013 U.S. Dist. LEXIS 32963 (ED NC, March 11, 2013), a North Carolina federal district court dismissed an inmate's complaint that the prison chaplain denied Catholic inmates time equal to that given other religious groups.

In Rahman v. Shearin, 2013 U.S. Dist. LEXIS 33853 (D MD, March 12, 2013), a Maryland federal district court dismissed an inmate's complaint that he was denied the right to participate in Sunni Muslim prayer services because prison officials wrongly had him listed as a member of Nation of Islam.

In Davis v. Flores, 2013 U.S. Dist. LEXIS 34215 (ED CA, March 11, 2013), a California federal district court dismissed a Muslim inmate's complaint that Friday Jumu'ah services for Level 4 inmates were suspended for several months after the prior Muslim chaplain was fired, instead of allowing unsupervised services.

In Wisniewski v. Mueller, 2013 U.S. Dist. LEXIS 22697 (D SC, Feb. 20, 2013), a South Carolina federal district court dismissed on ripeness grounds because plaintiff had been transferred to a different prison a complaint that prison policies barring magazines and paper materials in cells deprived him of the ability to receive Christian materials to study his faith. The magistrate's recommendation is at 2013 U.S. Dist. LEXIS 33484, Jan. 2, 2013.

In Haight v. Thompson, 2013 U.S. Dist. LEXIS 36062 (WD KY, March 15, 2013), a Kentucky federal district court on various grounds dismissed compaints by death row inmates that they were denied visits from clergy of their choice, were denied access to a sweat lodge to practice Native American religious ceremonies and were denied certain foods for use in a Native American powwow to be held at the prison.

Court Says Ban On Picketing Near Homes Survives Constitutional Challenge

In Bell v. City of Winter Park, (MD FL, March 6, 2013), a Florida federal district court upheld the constitutionality of an anti-picketing ordinance against free speech and free exercise claims. The law which bars picketing or protests within 50 feet of any dwelling was enacted after the president of Orlando's Planned Parenthood complained about shouting anti-abortion protesters carrying graphic signs in front of her house. The court held that this is a content-neutral time, place and manner regulation that does not violate free speech protections, and is a neutral generally-applicable law that survives a free exercise challenge.

Obama Names Delegation To Attend Pope's Inauguration Mass

Yesterday President Obama announced the designation of a Presidential Delegation to attend the Inauguration Mass of newly-elected Pope Francis in the Vatican on Tuesday. Vice-President Joe Biden will lead the delegation. The other members are New Mexico Governor Susana Martinez, House Democratic Leader Nancy Peolsi, and Georgetown University President Dr. John J. DeGioia.

Now Stymied Lawsuit In Russia Seeks To Invalidate Sale of Alaska To Protect Its Orthodox Christians From Same-Sex Marriage

RIA Novosti reports today on an attempt in Russia by an obscure ultraconservative Russian Orthodox religious group--  Pchyolki ("Bees)-- to sue the United States to invalidate Russia's sale of Alaska to the U.S. in 1867. Pchyolki says that the suit was motivated by President Barack Obama's support for legalizing same-sex marriage. Pchyolki says this threatens freedom of religion for Alaska’s Orthodox Christians, who "would never accept sin for normal behavior." The lawsuit cites technical violations of the terms of the 1867 treaty. Art. VI of the treaty called for the U.S. to pay Russia $7.2 million "in gold."  The complaint filed in a Moscow arbitrage court says payment was made instead by check.

The suit was originally filed in Moscow in January, and Pchyolki had until this week to file certain additional papers and notify the U.S. government of the lawsuit. It failed to do so, and the court has therefore not processed the lawsuit.

School District Moves Jesus Portrait To Another School, Presumably Strengthening Their Defense

As previously reported, last month parents and a student who attends Jackson, Ohio Middle School filed a federal court lawsuit against the school district seeking removal of a portrait of Jesus that has been displayed for 65 years on an entrance wall in the school. Shortly after the suit was filed, the school board voted unanimously to keep the portrait up, saying that it is protecting student free speech rights.  It claimed that the portrait belongs to, and was put up, but the Hi-Y club whose name is on the portrait frame. The board said the portrait is part of a "limited public forum" in which other student organizations can also hang portraits related to their purposes in the schools.(AP, 2/15/13).

The Columbus Dispatch reports today on a new development that presumably is intended to strengthen the school's case.  This week, at the request of the Hi-Y Club, the portrait was moved from the middle school building to a high school building.  The Hi-Y is a high school club, and when the portrait was put up in 1947, the middle-school building housed the high school. When the high school moved to a new building, the portrait was never moved. Now the Hi-Y students say they want the portrait in the building where the club currently meets and where its members are students. School Superintendent Phil Howard said: "We have to respect the rights of the club. Failure to do so might ... turn... the portrait into government speech."

In Syrian Rebel Areas, Islamists Are Setting Up Religious Courts

NPR reported yesterday that in Syria, as rebels have taken control of the northern part of the country, Islamists are setting up religious courts to dispense justice. However in cities like Mayadeen and Aleppo, moderate Muslims are objecting.

Court Refuses To Enforce Settlement In Good News Club Lawsuit

After the 8th Circuit last year held that a preliminary injunction should issue to permit Child Evangelism Fellowship's Good News Clubs to participate in a Minneapolis elementary school's after-school programming (see prior posting), the parties decided to settle the lawsuit. They filed a stipulation with the district court that provided for the school district to reinstate the Good News Clubs and pay plaintiffs' attorneys fees. It also sought the issuance of a permanent injunction and asked the court to retain jurisdiction for purposes of enforcing the injunction. In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (D MN, March 12, 2013), the district court, in an unusual move, held that

the parties have not demonstrated that permanent injunctive relief is necessary or warranted.... Instead, because the District has voluntarily agreed to cease the challenged conduct, the Court finds that there is no threat of future irreparable harm to CEF and therefore an injunction should not issue.... Because the Court will decline to enter a permanent injunction and exercise continuing jurisdiction over this matter, the Court’s approval of the parties’ Stipulation is no longer necessary, and the document is now simply a private settlement.

Utah High Court Rules That Reformed FLDS Trust Is Different Legal Client Than Original UEP Trust

In a 3-2 decision in Snow Christensen & Martineau v. Lindberg, (UT Sup. Ct., March 12, 2013), the Utah Supreme Court ruled this week on yet another of the complex legal issues flowing from Utah courts' attempt to reform the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. At issue was whether the law firm that once represented the original trust could now represent clients in challenges against the reformed trust, and whether the law firm had to turn privileged records over to the special fiduciary. The Supreme Court held that the reformation of the trust so changed it that it is no longer the same client as the original trust:

In reforming the UEP Trust, the district court stripped the Trust of its essential religious purpose and required that the Trust be administered according to secular principles.

Therefore, the Supreme Court majority held that the trial court erred in disqualifying the firm from representing FLDS members in their challenge to actions of the special fiduciary and in ordering the firm to disgorge privileged records to the special fiduciary. Deseret News reports on the decision.

Pizza Founder Wins Preliminary Injunction Against Contraceptive Coverage Mandate

A Michigan federal district court yesterday issued a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by Domino's Pizza founder Tom Monaghan and his property management company Domino farms Corp. In Monaghan v. Sebelius, (ED MI, March 14, 2013), the court held that plaintiffs are likely to succeed on their Religious Freedom Restoration Act challenge, writing:

the Court finds that DF is merely the instrument through and by which Monaghan expresses his religious beliefs. Accordingly, DF may assert an RFRA claim on Monaghan’s behalf. The Court takes no position as to whether DF has an independent right to freely exercise religion....

The Court’s task is not to question whether providing coverage is against Monaghan’s religious beliefs; that much is largely taken on Monaghan’s word.... Rather, the Court’s task is to determine whether this burden on Monaghan’s religious exercise is substantial. The Court finds that it is. Monaghan must violate his beliefs and modify his behavior or else pay substantial fines.

The court went on to hold that the government had not shown it has a compelling interest to enforce the mandate against these particular plaintiffs, given the numerous exemptions that lead to 190 million people being outside the mandate's coverage. Thomas More Law Center issued a press release on the decision.

Church's Zoning Challenge Dismissed On Ripeness Grounds

In St. Vincent De Paul Place v. City of Norwich, (D CT, March 13, 2013), a Connecticut federal district court dismissed on ripeness grounds a suit challenging the refusal of the city to issue a church a permit to operate a soup kitchen from a former religious school building. Plaintiffs should have applied for a variance before filing suit.

Suit Challenges "In God We Trust" On Coins and Currencuy

The Freedom From Religion Foundation, New York City Atheists, and 18 individual plaintiffs filed suit early last month in New York federal district court challenging on Establishment Clause, as well as other constitutional and statutory grounds, the use of the phrase "In God We Trust" on the nation's coins and currency.  The 78-page complaint (full text) in Newdow v. Congress of the United States, (SD NY, filed 2/1/2013), is described by an FFRF press release issued yesterday as "a tour de force of historical research, [which] unequivocally shows that there was a purely religious purpose and intent behind putting God on our coinage."  Honorary FFRF board member Mike Newdow is acting as legal counsel in the suit. First-named plaintiff, Rosalyn Newdow is apparently Michael Newdows mother. (Background). In 2006, Michael Newdow as plaintiff lost a similar challenge in a California federal district court suit. (See prior posting.)

Sikh Man Says California's Assault Weapons Ban Violates His Religious Beliefs

A lawsuit filed in a California federal district court this week by a Yuba City man alleges that California's ban on assault weapons, as well as its ban on carrying loaded firearms in one's vehicle and certain other places, violates the free exercise rights of plaintiff, a Sikh.  The complaint (full text) in Khalsa v. State of California, (ED CA, filed 3/12/2013) alleges:

Mainstream Sikh doctrine since the time of Guru Gobind Singh requires that Sikhs be at all times FULLY prepared to defend themselves and others against injustice. Some splinter groups attempt this by wearing symbolic miniature daggers in their turbans, to comply with this requirement. But mainstream Sikhs believe that the requirement is a literal and true moral duty.

Citing attacks and threats on Sikhs since 9/11, plaintiff also claims that the Second Amendment protects his right to be reasonably armed  in places and at times in which he and other Sikhs are likely to be attacked-- in his home, on the streets and in his temple. News10 reports on the lawsuit.

Another Small Business Owner Challenges Contraceptive Coverage Mandate, But With Special Symbolism

Thomas More Law Center yesterday announced that another lawsuit by a small business and its owner challenging the contraceptive coverage mandate of the Affordable Care Act was filed this week.  This time the challengers were Southern Baptist plaintiff Thomas Beckwith and the Florida-based Beckwith Electric Company, Inc. The individual plaintiff is a 93% stockholder and CEO of the company.  The complaint (full text) in Beckwith Electric Company, Inc. v. Sebelius, (MD FL, filed 3/12/2013), asserts legal challenges similar to many of the other suits that have been filed in recent months.  This suit however has two unique symbolic elements to it. First, according to Baptist Press, this is the 50th lawsuit filed challenging the mandate. Second, the suit alleges that Thomas Beckwith is "a descendant of the Beckwiths, who in 1626 endured the hardships of the lengthy and storm-ridden voyage to America on a 40-foot boat called the "Sparrow Hawk"; the Beckwiths landed on these shores to escape religious persecution in England."

ACLU Challenges Christian Prayers At County Commission Meetings

The ACLU of North Carolina announced yesterday that it has filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer. The federal court complaint (full text) in Lund v. Rowan County, North Carolina, (MD NC, filed 3/12/2013), alleges that 139 of the past 143 Board meetings were opened with prayers that concluded with references to Jesus or other Christian concepts. The suit argues that this violates the Establishment Clause as well as provisions of the North Carolina Constitution.  Plaintiffs also filed a motion for preliminary injunction and a memorandum in support of the motion.

Court Upholds Parent Church Body's Closing of Church and Takeover of Assets

In Metropolitan District of the Christian and Missionary Alliance v. Community Church of Paramus of the Christian and Missionary Alliance, Inc., (NJ App., March 8, 2013), a New Jersey appeals court rejected a challenge to the decision by the Christian and Missionary Alliance to close the Community Church and acquire title to its assets pursuant to a reversionary clause in the church's constitution. The decision to close the church came after its attendance dwindled and it was discovered that $68,000 in assets had been embezzled. Affirming the trial court's decision upholding the action of the parent body, the appeals court said:

We cannot parse the ecclesiastical constitution and rules of the CMA and the Metropolitan District and then apply neutral principles to determine whether the denomination's designated authority, the district executive committee, properly interpreted and applied such constitution and rules in this case. Matters of church governance, predicated upon its principles and hierarchical structure, should not be the subject of secular judicial resolution. "In disputes involving a church governed by a hierarchical structure, courts should defer to the result reached by the highest church authority to have considered the religious question at issue."

Argentine Cardinal Jorge Mario Bergoglio Named Pope Francis I

As reported by the Washington Post and AP, a new Pope has been elected today-- Argentine Cardinal Jorge Mario Bergoglio, who has chosen the name Pope Francis I. The Pope, a Jesuit, is the first Pope ever from the Americas.

UPDATE: President Obama on Wednesday afternoon issued a statement (full text) offering warmest wishes to the new Pope on behalf of the American people. The statement said in part:

Just as I appreciated our work with Pope Benedict XVI, I look forward to working with His Holiness to advance peace, security and dignity for our fellow human beings, regardless of their faith.  

Melissa Rogers To Be Appointed To Head President's Faith-Based Office

Melissa Rogers will be appointed to head the White House Office of Faith-Based and Neighborhood Partnerships, according to a press release today from the Baptist Joint Committee for Religious Liberty. Rogers is Director, of the Wake Forest University Center for Religion and Public Affairs and is a Nonresident Senior Fellow at the Brookings Institution.  She previously served as executive director of the Pew Forum on Religion and Public Life, and as general counsel of the Baptist Joint Committee for Religious Liberty.  Rogers served as chair of the President’s Advisory Council on Faith-based and Neighborhood Partnerships in 2009-10 and was part of a task force that that in March 2010 issued a report on Reform of the Office of Faith-Based and Neighborhood Partnerships that dealt with a number of the difficult church-state issues involved in government funding of faith-based social services. Rogers will succeed Joshua DuBois who resigned as director of the faith-based office last month. (See prior posting.)

3rd Circuit Upholds Elementary School Student's Right To Distribute Christmas Party Invitations

In K.A. v. Pocono Mountain School District, (3d Cir., March 12, 2013), the U.S. 3rd Circuit Court of Appeals upheld the right of a 5th grade student to hand out invitations to her classmates to a Christmas party at her church when classmates are allowed to hand out invitations to birthday parties, Halloween parties and the like during non-instructional time. Affirming the district court's grant of a preliminary injunction (see prior posting), the court held that the Supreme Court's Tinker decision should apply in the elementary school context as well as for older students.  It said:

the Tinker analysis has sufficient flexibility to accommodate the educational, developmental, and disciplinary interests at play in the elementary school environment.

The court concluded: "the School District‘s failure in this appeal to identify any disruption caused by K.A.‘s invitation, makes it reasonably likely that K.A. will prevail in this litigation." AP reports on the decision.

2nd Circuit: Mets Did Not Breach Vendor Contract In Barring Kosher Food Sales On Sabbath

In Kosher Sports, Inc. v. Queens Ballpark Company, LLC, (2d Cir., March 12, 2013), the U.S. 2nd Circuit Court of Appeals affirmed the district court's decision in a contract dispute over the sale of kosher hot dogs at New York Mets home games at Citi Field.  The appeals court agreed that the ballpark owner did not breach its agreement with a kosher food vendor by prohibiting the vendor from selling kosher food at Friday night and Saturday games.  In an article on the decision, The Forward reports that Kosher Sports Inc. had taken steps to allow for pre-cooking of food and operation of its carts by non-Jews so that there would be no violation of the Sabbath. The Mets organization however was concerned with appearances that could undermine fans' confidence that the food being sold was kosher. (See prior related posting.) [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Los Angeles Archdiocese Settles 4 Suits For Nearly $10 Million

AP reported yesterday that the Catholic Archdiocese of Los Angeles has agreed to settle four cases against it by abuse victims of now-defrocked priest Michael Baker for a total of nearly $10 million. The abuse allegations cover 26 years-- 1976 to 2000. Two of the cases named Cardinal Roger Mahony who failed for many years to remove Baker. Released documents show that Mahony helped shield abusive priests. (See prior posting.)  An attorney for the Archdiocese says that the Archdiocese is responsible for Baker's actions. Two of the cases were set to go to trial next month, and the judge had ruled that plaintiffs could seek punitive damages. In the settlement, two of the plaintiffs will receive $4 million each, and two other will each receive $1 million.

School Revises Student Demonstration Rules In Settlement of Case

Thomas More Society announced yesterday that a settlement has been reached with Sinclair Community College in Dayton, Ohio in Deddens v. Warren County Montgomery County Community College District, (SD OH, filed 7/6/2012), a lawsuit filed last year after college rules were invoked to bar signs at a student-organized Stand Up for Religious Freedom Rally. (See prior posting.) The college has revised its policies to allow broader exercise of 1st Amendment rights.

Colorado Legislature Approves Civil Unions; Governor Expected To Sign Bill

The Colorado legislature today gave final passage to SB 13-11, the Colorado Civil Union Act, authorizing both same-sex and opposite-sex civil unions and giving parties to a civil union the same rights and obligations as spouses. It provides that a civil union may be certified by a judge, a magistrate, the parties or "in accordance with any mode of recognition ... by any religious denomination."  AP reports that Governor John Hickenlooper has said he will sign the bill, Many Republicans have expressed concern about the absence in the bill of religious exemptions for those opposed to civil unions.  Supporters say this would invite discrimination.  In 2006, Colorado approved a state constitutional amendment barring gay marriage-- but not civil unions.

Hungarian Parliament Passes Constitutional Amendment Giving Parliament Power To Recognize Religious Communities

Deutsche Welle reports that yesterday the Hungarian parliament passed a package of Constitutional amendments. Among other things, they limit the power of the country's Constitutional Court. They also effectively overrule a Constitutional Court decision handed down last month (see prior posting). That decision invalidated Hungary's Law on Legal Status of Churches that required all but 14 traditional faiths to apply to Parliament for recognition. The new constitutional amendments specifically authorize parliament to decide on recognition of religious communities,

Judge Rejects Request To Exclude Jews From Jury In Accused Terrorist's Trial

A federal district court judge in New York City yesterday denied a motion by counsel for an accused terrorist who wanted to exclude Jews from the jury because there will be inflammatory testimony at trial about Jews and Zionism.  ABC News reports that Frederick Cohn, the lawyer representing Abdel Hameed Shehadeh who is accused of making false statements about plans to kill Americans in Afghanistan, initially made the request last month to Judge Eric Vitaliano.

Pennsylvania Seminary Seeks To Intervene In Texas Schools' Challenge To Contraceptive Coverage Mandate

In a press release yesterday, the Pennsylvania-based Westminster Theological Seminary announced that it has filed a Motion to Intervene (full text) as a plaintiff in a Texas federal district court lawsuit brought  by East Texas Baptist University and Houston Baptist University challenging the Affordable Care Act contraceptive coverage mandate. (See prior posting.)

Meanwhile according to the South Bend (IN) Tribune , in a separate case, Notre Dame University filed a notice of appeal to the 7th Circuit in its challenge to the contraceptive coverage mandate. The district court dismissed its lawsuit on standing and ripeness grounds. (See prior posting.)

Suit Challenges Catholic Cemetery's Headstone Rules

The Indianapolis (IN) Star reported yesterday on a lawsuit against an arm of the Indianapolis Archdiocese over rules of a North Vernon, Indiana cemetery. Shannon Carr spent $9600 on a  black granite headstone for her late husband that reflected his interests.  It is shaped like a couch and depicts images of a deer, a dog and color logos of NASCAR and the Indianapolis Colts. St. Joseph Catholic Church notified the monument maker that the marker did not meet cemetery requirements.  The priest at St. Joseph says that even though regulations were not formalized until after Carr purchased the monument, Carr was notified before she purchased the marker that the Parish Council had determined that it was too secular under informal rules that were understood at that time. The Archdiocese attorney says that the court lacks jurisdiction over the case because deciding it would involve civil authorities in church affairs. [Thanks to Amy Edmonds for the lead.]

Media Speculates On Leading Candidates For New Pope

With the Conclave to elect a new Pope scheduled to begin in the Vatican tomorrow, AP reports on the leading contenders as of yesterday. It says the Vatican Curia is backing Brazilian Odilo Scherer who would be expected to appoint an Italian insider as Secretary of State, the number 2 position that runs day-to-day affairs. American cardinals are leading a push for a reform-minded pope and are backing Milan archbishop Angelo Scola. Three American Cardinals are also being mentioned as candidates-- Cardinal Sean O'Malley of Boston,  Cardinal Timothy Dolan of New York, and Cardinal Donald Wuerl of Washington,  Italy has the largest group of Cardinal electors and Italians had been elected to the Papacy for 455 years prior to 1978 when splits in the Italian delegation ended the tradition with the election of Pope John Paul II.

Recent Articles of Interest

From SSRN:

• Mohammad Abdullah , Analysing the Role of Shariah Supervisory Boards in Islamic Financial Institutions, (February 1, 2012).
• Joanie Sompayrac and Victoria Rose Burge, Does the Defense of Marriage Act Prevent the Internal Revenue Service from Treating All 'Married' Couples Equally?, (Journal of Accounting, Ethics & Public Policy, Vol. 14, No. 1, 2013).
• Mohammad Fadel, Judicial Institutions, the Legitimacy of Islamic State Law and Democratic Transition in Egypt: Can a Shift toward Common Law Model of Adjudication Improve the Prospects of a Successful Democratic Transition?, (Forthcoming in International Journal of Constitutional Law).
• Mark Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, (March 7, 2013).
• Stephen M. Bainbridge, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, (The Green Bag, Vol. 16, No. 3, Spring 2013).
• Nan D. Hunter and Suzanne B. Goldberg, Brief of Amici Curiae Professors Nan D. Hunter, et al., Addressing the Merits in Support of Respondents, (Georgetown Public Law Research Paper No. 13-019., Feb. 27, 2013).

From SmartCILP and elsewhere:

• Kurt M. Denk, Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse, 88 Notre Dame Law Review 323-393 (2012).
• Jay Alan Sekulow and Erik M. Zimmerman. Reflections on Jews for Jesus: Twenty-five Years Later, 25 Regent University Law Review 1-23 (2012-2013).
• Michael J. Klarman, How Same-Sex Marriage Came to Be, Harvard Magazine, 30-35, March-April 2013.
• The March-April 2013 issue of Moment Magazine is devoted to Religious Freedom.

Pakistani Muslims Burn Christian Homes After Christian Is Charged With Blasphemy

CNN reports today:

Outraged Pakistani Christians took to the streets of Lahore on Sunday, protesting a rash of violence against their community over the weekend.  Demonstrators denounced the burning of more than 100 homes of Christians on Saturday -- a spree spurred by allegations that a Christian man made remarks against the Muslim prophet Mohammed.

The blasphemy charges were filed against Sawan Masih who denies the charges and says they were filed after he and two other men got into an argument while drinking.  Pakistan's Human Rights Commission said:

The attack is yet another shameful incident against a vulnerable community and further confirmation of the slide toward extremism in society on the one hand and, on the other hand, the apathy and inaction that has become the norm among the police. 

UPDATE: Pakistan's President Asif Zardari on Sunday instructed the Prime Minister to compensate each Christian family affected in the amount of 500,000 Rs (approximately $5000 US). He also pledged protection of non-Muslim citizens to the same extent as Muslims and said those involved in the vandalism should be brought to justice. He asked religious leaders for suggestions on how to prevent misuse of the blasphemy law. (Pakistan Today 3/11).

Puerto Rican Police Sued By Atheist Officer Over Workplace Prayer

The ACLU of Puerto Rico announced Friday that it has filed a lawsuit in federal court on behalf of a police officer who is an atheist who was harassed and demoted to handling menial tasks after he refused to participate in Christian prayer made a part of a workplace meeting by a police commander. Departmental meetings continue to include Christian prayers. The complaint (full text) in Marrero-Mendez v.Pesquera, (D PR, filed 3/8/2013), charges that the practice violates the Establishment Clause as well as various Puerto Rican statutory and constitutional provisions. According to an AP report: "It is one of the first cases of its kind filed in the deeply religious U.S. territory, where 85 percent of the people consider themselves Roman Catholic and a large minority is Protestant."

Recent Prisoner Free Exercise Cases

In White v. Lee, 2013 U.S. App. LEXIS 4470 (9th Cir., March 4, 2013), the 9th Circuit affirmed the dismissal of an inmate's RLUIPA and free exercise claims finding that plaintiff's religious beliefs in opposition to blood transfusions did not impact his prison physicians' chosen course of treatment for his knee pain.

In Muhammad v. Davis, 2013 U.S. Dist. LEXIS 27557 (MD FL, Feb. 28, 2013), a Florida federal district court permitted a Muslim inmate to move ahead with his claim for injunctive relief in a suit claiming that his rights under RLUIPA were violated when prison authorities refused to recognize his need to begin the Ramadan fast 90 minutes before sunrise (at Fajr).

In Buckley v. Scribner, 2013 U.S. Dist. LEXIS 27833 (ED CA, Feb 28, 2013), a California federal magistrate judge recommended allowing a Jewish inmate to move ahead with his claims that his kippahs and tallit were confiscated and destroyed and that he was denied chapel access on one day.

In Pittman-Bey v. Clay, 2013 U.S. Dist. LEXIS 29668 (SD TX, March 4, 2013), a Texas federal district court held that prison officials are entitled to qualified immunity in a damage action against them alleging free exercise violations because neither binding precedent nor a consensus of authority made it clear that an inmate had a free exercise right to receive the Ramadan meals when he refused to attend weekly Jumu'ah services based on his religious beliefs.

In Stanley v. Wenerowicz, 2013 U.S. Dist. LEXIS 30005 (MD PA, March 1, 2013), a Pennsylvania federal district court permitted a Muslim to proceed against certain defendants on his claim that  he was improperly transferred to a Virginia prison where he was required to shave in violation of his religious beliefs, even though he had been granted an exemption from frooming requirements by Pennsylvania correctional authorities.

In Jamison v. Bamberg, 2013 U.S. Dist. LEXIS 29347 (D SC, March 5, 2013), a South Carolina federal district court adopted a magistte's recommendation (2012 U.S. Dist. LEXIS 186577, Nov. 28, 2012) and dismissed an inmate's complaint that he was not provided a kosher diet and subsequently a House of Yahweh diet.

In McCoy v. Henderson, 2013 U.S. Dist. LEXIS 30881 (D KA, March 6, 2013), a Kansas federal district court dismissed an inmate's complaint that he was improperly denied kosher meals.

In Villanueva v. Rivera, 2013 U.S. Dist. LEXIS 29479 (D SC, March 4, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 29484, Jan. 7, 2013) and dismissed an inmate's complaint that the prison system refused to recognize Kingism as a religion.

Free Exercise and Establishment Clause Challenges To NC Marriage Laws Dismissed On Procedural Grounds

In Thigpen v. Cooper, (NC Ct. App., March 5, 2013), a North Carolina state appellate court, without reaching the merits of the claim, dismissed a suit seeking a declaratory judgment that three of the state's marriage statutes are unconstitutional.  Plaintiff claimed that the statutes violate the Establishment Clause by making clergy agents of the state to perform a marriage ceremony; that  they violate free exercise protections because the state requires individuals entering into marriage to participate in a state-prescribed ceremony; and that it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. (See prior posting.)  The only defendants named were the state of North Carolina and the state Attorney General in his official capacity. The court held that a state is not a "person" for purposes of 42 USC Sec. 1983, the federal statute giving plaintiffs a cause of action to challenge the state laws. It held further that the suit is not properly brought against the attorney general, because he plays no role in enforcing the marriage statutes being challenged.

Clergy-Communicant Privilege Does Not Extend To Lay Religious Counselors

In United States v. Dillard, (D KA, March 7, 2013), a Kansas federal magistrate judge [corrected] held that the clergy-communicant privilege extends only to members of the clergy and not to a lay counselor providing religious counseling or other support through a religious program. Defendant, Angel Dillard, visited inmates at the Sedgwick County jail through a non-profit religious ministries program.  In the case, the federal government is seeking information on Dillard's communications through the program with Scott Roeder, who is serving a life sentence for of murdering abortion provider Dr. George Tiller (see prior posting), and with another inmate who says that Dillard solicited his participation in unlawful activities against abortion providers. In rejecting Dillard's claim of privilege, the court said:

Extending the privilege to “counselors” and other lay members would require the Court to undertake the constitutionally-hazardous task of analyzing whether counseling was or was not “religious” – and possibly even balancing whether the religious component of a communication is substantial enough to require protection.

Latest Contraceptive Coverage Mandate Decision Includes Several New Twists

A Pennsylvania federal district court on Wednesday handed down a decision in a case challenging the contraceptive coverage mandate promulgated under the Affordable Care Act.  Unlike other cases decided so far, this one combined a challenge by a non-profit college and two for-profit businesses that do not appear to have any relation to the college.  The 69-page opinion reached different results as to the different challengers.  In Geneva College v. Sebelius, (WD PA, March 6, 2013), the court held that while the non-profit, Reformed Presbyterian Church-sponsored Geneva college had standing to challenge the mandate, its lawsuit should be dismissed for lack of ripeness. Under Feb. 13 proposed rules, Geneva may be exempted from compliance.

The court, however, handed down a more complex ruling as to the challenges by the for-profit businesses, refusing to dismiss their RFRA, free exercise and Administrative Procedure Act claims. It held that one of the companies, a closely-held corporation in the lumber business, has standing to assert its Catholic owners' free exercise rights under the 1st Amendment and RFRA. However the court held that the other business, a sole proprietorship, cannot assert a claim since it is not a separate entity. Instead its owner, who is also a plaintiff in the case, may assert the business' rights in his own name.

The court went on to apply the strict scrutiny standard, both under RFRA, and under the 1st Amendment as well finding that extensive exemptions prevent the mandate from being a "generally applicable" law. The court concluded that the owners had put forward a plausible claim that the mandate will impose a substantial burden on their religious beliefs, and that the government has failed to show a compelling interest in enforcing the mandate against these defendants. The court dismissed Establishment Clause, free speech and due process challenges.

Finally, in what may be a first in the many decisions handed down so far in challenges to the mandate, the court held that "plaintiffs set forth sufficient factual allegations to support a plausible claim that the notice and comment requirements of the APA were violated." ADF issued a press release on the decision.

UN Special Rapporteur Presents Findings On Rights of Religious Minorities

On March 5, Heiner Bielefeldt, United Nations Special Rapporteur on freedom of religion or belief, presented a report to the United Nations Human Rights Council on protecting religious minorities. (UN Press Release.) The Report (dated Dec. 24, 2012) (full text) concludes:

Human rights violations against persons belonging to religious minorities include disproportionate bureaucratic restrictions; denial of appropriate legal status positions needed to build up or uphold a religious infrastructure; systematic discrimination and partial exclusion from important sectors of society; discriminatory rules within family laws; indoctrination of children from minorities in public schools; publicly stoked prejudices and vilification sometimes connected with historic traumas and national mythologies; acts of vandalism and desecration; prohibition or disruption of religious ceremonies; threats and acts of violence; interference in the community’s internal affairs; confiscation of community property; criminal sanctions; denial of asylum, possibly resulting in extraditions and exposure to serious risks of persecution.

The report concludes with 30 recommendations, the most controversial of which is:

States should repeal any criminal law provisions that penalize apostasy, blasphemy and proselytism as they may prevent persons belonging to religious or belief minorities from fully enjoying their freedom of religion or belief.

Charisma News reports on these developments.

Suit Says Forest Service Did Not Adequately Protect Tribal Sacred Site In Permitting Uranium Mine

Yesterday, the Havasupai Tribe, along with three environmental groups, filed suit against the U.S. Forest Service challenging its decision to allow operation of a uranium mine near Grand Canyon National Park based only on a 1986 federal environmental review. (Press release).  The complaint (full text) in Grand Canyon Trust v. Williams, (D AZ, filed 3/7/2013) claims that the Forest Service failed to comply with environmental, mining, public land, and historic preservation laws. It alleges, among other things, that while the Forest Service has designated the area as Traditional Cultural Property and has recognized that it is a sacred site to the Havasupai Tribe and has begun consultations with the Tribe, it refuses to carry out a complete "Section 106 process" under the National Historic Preservation Act, which would include developing a memorandum of agreement with the tribe and state historic preservation office before restarting mining operations.

Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, March 7, 2013), a Pennsylvania federal district court refused to dismiss an Establishment Clause challenge to a 6-foot tall stone monument containing the Ten Commandments located near the auditorium entrance to a junior high school.  The monument was donated to the school by the Fraternal Order of Eagles in 1957.  In allowing plaintiffs to move ahead, the court said in part:

Establishment Clause challenges are all unique and driven by the particular facts of the case. Plaintiffs are entitled to a reasonable time in which they may conduct limited discovery in their attempt to garner support for the cause they pursue, such as developing evidence from sources other than the commentary posted by board members with regard to the School District’s purpose for accepting and maintaining the monument. Discovery will also afford Defendant the opportunity to inquire deeper into whether particular hypersensitivities exist such that the viewpoint of a reasonable observer would differ, uncover the historical background of the monolith, and confirm the claimed nature of the content on the display.

The Pittsburgh Tribune-Review reports on the decision.

9th Circuit: Religious Healing Center Must Produce Subpoenaed Documents

Optimum Health Institute (OHI) is a healing ministry of the Free Sacred Trinity Church that operates two holistic healing centers. In Cason v. Federated Life Insurance Co., (9th Cir., March 6, 2013), the U.S. 9th Circuit Court of Appeals upheld a district court's civil contempt order against OHI after it refused to produce documents sought by Federated Life Insurance Company relating to attendance at OHI by Cheryl Cason who was suing the insurance company. The court rejected OHI's argument that forcing it to produce the documents would violate its First Amendment rights. OHI's ability to practice its religion would, at most, have been only incidentally affected, and no associational privacy was infringed. Cason already admitted she attended OHI, and OHI was permitted to redact the names of others from the documents it produced.

California Trial Court Issues Tentative Ruling Against Episcopal Church In Property Dispute

A California state trial court has issued a tentative ruling (full text), subject to change if either party requests oral argument, in Diocese of San Joaquin v. Schofield, (Fresno Super. Ct., March 6, 2013). The case involves an attempt by The Episcopal Church to establish its title to property of the break-away San Joaquin Diocese.  As previously reported, a state appeals court held that the trial court should apply neutral principles of law to determine the validity of property transfers allegedly made by break-away Bishop John-David Schofield before he was replaced. The Episcopal Church moved for summary judgment, arguing that because all the property transfers occurred after Schofield was removed as Bishop, the transfers were invalid. The court, in its tentative ruling, however refused to grant the motion, saying:

It is not enough for plaintiffs to merely state that Schofield was not the Episcopal Bishop of the Diocese of San Joaquin when he effected the transfers at issue. Plaintiffs were also required to show that, under neutral principals of law, Schofield lacked the authority to effect such transfers.... An individual incorporated as a corporation sole "may at any time amend the articles of incorporation of the corporation...."   (Corp. Code, § 10010.)... Plaintiffs have utterly failed to present either facts or evidence from which this court could conclude that the December 8, 2007 amendments enacted to leave the Episcopal Church were invalid.... In short, there is nothing to for this court to review under neutral principals of law.

Anglican Curmudgeon blog comments on the tentative ruling.

South Carolina Episcopal Bishop Sues Break-Away Parishes Over Right To Be Identified As Protestant Episcopal Church

As reported by AP,  yesterday Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church filed a federal lawsuit against Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. The complaint (full text) in von Rosenberg v. Lawrence, (D SC, filed 3/6/2013), asserts trademark infringement and false advertising claims under the federal Lanham Act and seeks to enjoin the break-away congregations from using the name and symbols of the Protestant Episcopal Church in the Diocese of South Carolina. However, plaintiffs see the suit in broader terms. von Rosenberg said: "The intent of this suit is straightforward. We are asking the court to determine who is authorized to serve as bishop of the Episcopal Diocese of South Carolina."

The suit counters a state court lawsuit initially filed in January by the Diocese of South Carolina seeking to claim the right to diocese property and identity  (see prior posting). In that case the state court issued a temporary injunction to block the faction remaining with TEC from using the name "The Protestant Episcopal Church in the Diocese of South Carolina." (Background). Since then, the break-away group has used the name "Diocese of South Carolina." while the TEC congregations are using the name "The Episcopal Church in South Carolina." The Anglican Curmdgeon blog comments on the new lawsuit from the perspective of the break-away congregations.

Consent Decree Vindicates ACLU's Challenge of Library's Web Filtering Categories

In a consent order in Hunter v. Board of Trustees, Salem Public Library, (ED MO March 5, 2013), a Missouri federal district court ordered the Salem, Missouri public library to refrain from reactivating on its public computers filters that blocked websites relating to the categories "occult" or "criminal skills." (ACLU press release.) The suit was filed by the ACLU on behalf of a Salem resident who was blocked from accessing websites discussing Native American and Wiccan ideas about death or death rituals. The library had already changed its policy before this lawsuit was filed. (See prior related posting.) The St. Louis Post-Dispatch reports on the order.

Scottish Charity Regulator Holds Catholic Adoption Agency Does Not Qualify As A Charity

In a Report (full text) issued March 5, the Office of the Scottish Charity Regulator confirmed its Jan. 2013 decision that St. Margaret's Children and Family Care Society, a Catholic adoption agency based in Glasgow, fails to qualify as a "charity" under the Charities and Trustee Investment (Scotland) Act 2005.  The conclusion was based on the finding that St. Margaret's violates the Equality Act 2010 by discriminating against non-Catholics, and against same-sex couples, in placing children for adoption.(OSCR press release.) As summarized by the Report:

OSCR found that the charity does not provide public benefit because the way it provides benefit involves unlawful discrimination, which causes detriment to the public and to particular groups of people, the effect of which outweighs the other positive effects of the charity’s work. OSCR also found that access to the benefits the charity provides is unduly restricted. OSCR therefore found that the charity fails the charity test and confirmed the decision to direct the charity to meet the charity test.

The National Secular Society, which filed the original complaint against St. Margaret's, also issued a press release on OSCR's report.

Mississippi Legislature Adopts Student Religious Liberties Act

The Mississippi State Legislature has passed overwhelmingly and sent to Gov. Phil Bryant for his signature S.B. 2633, the Mississippi Student Religious Liberties Act of 2013.  The state Senate passed the bill by a vote of 50- 1 last month, and the House yesterday passed it by a vote of 109-6, with 5 not voting, absent or voting present. The bill prohibits public school from discriminating against students or parents on the basis of religious viewpoint or religious expression, including the expression of religious beliefs in homework or classroom assignments. It provides that students may pray, engage in religious activities and religious expression, and organize religious clubs and gatherings before, during and after the school day to the same extent that students may engage in nonreligious activities. It calls for schools to adopt a policy that creates a limited public forum at all events at which students speak publicly, and sets out a Model Policy that meets the statutory requirements. The Model Policy includes provisions that allow students, selected under neutral criteria, to introduce football games and speak at graduation ceremonies without discrimination against religious views they espouse. AP reports on the bill's passage.

UPDATE: AP reports that Mississippi Gov. Phil Bryant signed the bill on March 14.

Developments In Small Business Challenges To the Contraceptive Coverage Mandate

In Sioux Chief Mfg. Co., Inc. v. Sebelius, (WD MO, Feb. 28, 2013), a Missouri federal district court, with the consent of both parties, enjoined enforcement of the Affordable Care Act contraceptive coverage mandate against a small plumbing products company and its Catholic owners until the 8th Circuit rules on one of two cases before it raising similar issues. The court also stayed all proceedings in the case until the 8th Circuit rules. (See prior related posting.) LifeNews reports on the court's action.

Meanwhile, in Colorado another small business, along with its Evangelical Christian owners, filed a federal lawsuit challenging the contraceptive coverage mandate on 1st, 5th, 14th Amendment, RFRA and Administrative Procedure Act grounds.  The complaint (full text) in Armstrong v. Sebelius, (D CO, filed 3/5/2013), alleges that the shareholders of the Cherry Creek Mortgage Co. only realized last December that the company's health insurance policy covers contraceptive drugs that operate as abotrtifacients. Because there was not time to seek judicial relief before Jan. 1, the company (at least temporarily) kept the same coverage to comply with the mandate. An ADF press release reports on the filing of the lawsuit.

On a separate front, three members of the House of Representatives announced that they, with 50 co-sponsors, have introduced the Health Care Conscience Rights Act (full text). The proposed bill would provide that no individual, issuer or sponsor can be required to purchase or furnish health insurance coverage that includes coverage of an abortion or other service to which the individual, issuer or sponsor has a moral or religious objection. The bill would also strengthen conscience rights for health care providers who have objections to abortions. According to CNS, one of the bill's sponsors said it is possible that the bill could be attached to the House version of the continuing resolution that would keep the federal government operating after March 27.

Cert. Petition Filed Challenging Enjoining of Anti-Abortion Church Picketers

On Monday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Scott v. St. John's Church in the Wilderness. In the case, a Colorado appeals court (full text of opinion) enjoined anti-abortion protesters from engaging in certain kinds of protest activity aimed at a church they believed had gone astray.  The injunction applied during periods from shortly before to shortly after church services. The primary portion of the injunction challenged on appeal prohibits defendants from:

displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services and/or worship-related events at plaintiff church.

A Thomas More Society press release discusses further the certiorari petition. Eugene Volokh, one of the drafters of the cert. petition, discusses it further at Volokh Conspiracy.

 

Israel May Have Coalition Government That Dramatically Changes Current Religion-State Arrangements

A New York Jewish Week article today speculates that dramatic changes in the relationship of religion and government could be in the offing in Israel as Benjamin Netanyahu moves to form a coalition government that may exclude the haredi (strictly Orthodox) Shas and United Torah Judaism parties. In the coalition negotiations, Yair Lapid of Yesh Atid and Naftali Bennett of the Jewish Home Party, which together hold 31 seats in the Knesset, have pledged they will not join a government with the haredi parties.

Among the changes that could result are limiting or ending draft exemptions for yeshiva students, easier conversion to Judaism of immigrants from the former Soviet Union who have been unable to prove that they are Jewish under Jewish religious law, an end to the Orthodox monopoly over Jewish marriage and divorce, and proportionate government funding of the Reform and Masorti (Conservative) branches of Judaism along with Orthodox.

Czech Constitutional Court Refuses Injunction Pending Its Decision On Church Restitution Law

Last year the Czech Republic passed a law on return of church property confiscated during the country's Communist regime. Under the law, the government will return land worth 75 billion crowns and will pay additional compensation of 59 billion crowns over the next 30 years. (See prior posting.)  Challenges to the law have been filed in the country's Constitutional Court, and the court has agreed to decide one of those cases challenging its constitutionality. Nevertheless, the government moved ahead on Feb. 22 to sign contracts with 16 churches and religious societies on their financial compensation.  The opposition Social Democratic Party filed with the Constitutional Court asking it to enjoin the government moving ahead with the contracts pending the court's decision on the validity of the entire law. Prague Daily Monitor reported yesterday that the Constitutional Court dismissed the injunctive action ruling that it lacks jurisdiction since it may only decide constitutional challenges.

Attorneys For Abuse Victims Speculate That Benedict May Be More Vulnerable Legally After His Resignation

AP reports yesterday that attorneys for clergy sex abuse victims are exploring whether Pope Benedict XVI's resignation makes him more vulnerable to successful legal action challenging his failure to act more aggressively against priests involved. They speculate that the resignation may make prosecutors more likely to act, particularly as to his role before he became Pope when he was head the Congregation for the Doctrine of the Faith that was charged with dealing with the abuse claims. However a lawyer for the Vatican says that Benedict retains legal immunity as a former head of state. The Center for Constitutional Rights in New York is urging the International Criminal Court to investigate the Vatican's response to abuse as crimes against humanity.

Tithing Not A Necessary Expense In Computing Installment Payments To IRS

In Thompson v. Commissioner, (USTC, March 4, 2013), the U.S. Tax Court faced the question of the extent to which a taxpayer entering an installment agreement for the payment of back taxes should be allowed to continue to tithe to the Mormon Church.  George Thompson, who was a volunteer shift coordinator and a stake scouting coordinator for the Church, sought a partial payment installment agreement with the IRS for the over $880,000 in taxes and penalties he owed. The IRS offered an agreement under which he would pay $8389 per month, computed by deducting from Thompson's monthly income those items the IRS classified as "necessary expenses." Thompson claimed that his $2110 per month tithing expenses to his Church should also be a necessary expense.

The Internal Revenue Manual provides that "necessary expenses" include those that are a condition of employment. Thompson would be required to resign from his positions with the Church if he stopped tithing. The Tax Court concluded, however, that while required tithing by a minister who receives compensation would be a necessary expense, this does not apply to expenses connected with uncompensated activities. The Internal Revenue Manual also classifies payments for a taxpayer's health and welfare as necessary ones. However the court said it was not an abuse of discretion to exclude payments relating to "spiritual health." The Tax Court also rejected Thompson's arguments under the free exercise clause and RFRA. TaxProf Blog reports on the decision.

Malaysians Can Now Deduct Contributions To Places of Worship

Today's New Straits Times reports that this year for the first time Malaysians will be able to deduct from their income tax returns contributions made last year to approved places of worship. Under The Income Tax (Amendment) Act 2012, these type of donations were further encouraged by provisions allowing religious organizations to create a place-of-worship management fund to which tax deductible contributions can be made.

Philippine Ombudsman Dismisses Prosecution of Controversial Artist and Cultural Center Trustees

The Philippine Daily Inquirer yesterday reported that the Ombudsman of the Philippines has dismissed a criminal case that had been filed against controversial artist Mideo Cruz and ten members of the Board of Trustees of the Cultural Center of the Philippines. The prosecution had charged defendants with violating Article 201 of the Revised Penal Code, the law which penalizes offenses against decency and good customs, because of the display of Cruz's collage titled Poleteismo as part of the 2011 Kulo art exhibit organized by the Cultural Center. Some Catholics had objected to Cruz’s mixing of religious images with phallic symbols, a condom and Mickey mouse ears. The Ombudsman also held that that there is no substantial evidence to hold Cultural Center officials administratively liable either.

Pastor Who Aided International Parental Kidnapping Sentenced To Prison, But Stayed Pending Appeal

Christian News Network reports that a federal court judge in Burlington, Vermont yesterday sentenced Mennonite pastor Ken Miller of Stuarts Draft, Virginia to 27 months in prison plus one year of supervised probation after Miller was convicted last year of abetting an international parental kidnapping. (See prior posting). Miller's conviction grew out of the assistance he gave to Lisa Miller (no relation to the pastor), who-- before declaring herself a born-again Christian-- had been in a Vermont civil union with another woman. She now sought to avoid the court-ordered child visitation rights awarded to her former partner by fleeing with her daughter. The pastor helped her ultimately get to Nicaragua and obtain shelter from missionaries there. Edge quotes from a letter that Pastor Miller sent to the sentencing judge ahead of the sentencing decision in which Miller calls the decree awarding visitation rights "inhumane" and said the court is judging his faith, conscience and deeply held moral beliefs. Judge Sessions, after imposing the prison sentence, ruled that imposition of the sentence would be stayed pending an appeal on whether the case should have been tried in Virginia instead of Vermont.

Secularist Group Issues Report Critical of Religious Fundamentalism In U.S. Military

The Center for Inquiry last week released a 36-page position paper titled For God and Country: Religious Fundamentalism In the U.S. Military. The report was authored by retired Air Force Lieutenant Colonel James Parco, a former Air Force Academy faculty member and a leading critic of religious proselytizing at the Academy. The report summarizes its findings as follows:

Tension over what constitutes proper religious expression within the United States military has significantly intensified over the past decade. This paper examines and analyzes recent reports and several prominent cases, revealing how religiously motivated behavior has increased over the years and remains either tacitly or overtly endorsed by senior military leaders. In light of increasing religious fundamentalism within the ranks, coupled with a lack of social and political will to affect change, the cultural reticence to hold commanders accountable for inappropriate behavior remains an obstacle. The paper concludes with actionable recommendations.

[Thanks to Scott Mange for the lead.] 

Court Denies Injunction In Businesses' Challenge To Contraceptive Coverage Mandate

In Gilardi v. Sebelius. (D DC, March 3, 2013), the D.C. federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners.  Plaintiffs object on religious grounds to providing coverage for contraception, sterilization and contraceptive methods that act as abotifacients. The court concluded that plaintiffs failed to show a likelihood of success on the merits of their claim under the Religious Freedom Restoration Act.

The court refused to impute the owners' religious views onto their corporations, holding that it must evaluate the claims of the owners and the businesses separately.  Declining to decide whether a for-profit business could ever exercise religion, the court held that in this case the charitable activities and other actions pointed to by plaintiffs do not establish that these companies exercise religion, so the contraceptive coverage mandate cannot impose a substantial burden on them.  Moving to claims by the individual owners, the court held that a substantial burden is not shown merely by plaintiffs claiming that it is such. Here the owners have not shown a substantial burden because they are not required to personally support, endorse or engage in pro-abortion or pro-contraception activity; only the corporations are.

US and Russian Branches of Chabad At Odds Over Putin's Suggested Lawsuit Compromise

As previously reported, U.S. courts have ordered the Russian government to return two expropriated collections of valuable Jewish religious books and manuscripts (the Schneerson Library and the Archive) to the U.S. Chabad organization. Recently Russian President Vladimir Putin has suggested a possible compromise-- keeping the portion of the collection that was nationalized by the Bolsheviks in Moscow's Jewish Museum and Tolerance Center, a museum controlled by the Russian branch of Chabad.  According to yesterday's Forward, the proposal has placed the Russian and U.S. branches of Chabad at odds. Nathan Lewin, lawyer for the Brooklyn-based branch of Chabad has rejected Putin's suggestion.  However, Boruch Gorin, a spokesman for the Russian Chabad's Federation of Jewish Communities, said that Lewin's rejection of the proposed compromise could be "dangerous [for] the future of the Jewish community in Russia." Gorin says that the U.S.-based Chabad should focus on seeking return only of the Archive, which was seized by the Nazis, and only later by the Red Army. The Library, on the other hand, was nationalized by the Bolshevik government in 1917, and its return would create a more difficult precedent for Russia because of the large amount of property nationalized by the Bolsheviks.

Recent Articles of Interest

From SSRN:

• Vito Breda, Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation, (February 18, 2013).
• Megan Pearson, Proportionality: A Way Forward for Resolving Religious Claims?, (Nick Spencer (ed.) Religion and Law (London: Theos Think Tank, 2012).)
• Andrew M. Koppelman, And I Don't Care What It Is: Religious Neutrality in American Law, (Pepperdine Law Review, Vol. 39, 2013).
• Paul Horwitz, Defending (Religious) Institutionalism, (Virginia Law Review, Forthcoming).
• John Witte and Joel A. Nichols, Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions, (Faulkner Law Review (Forthcoming 2013)).
• Elizabeth L. Hillman, Outing the Costs of Civil Deference to the Military, (60 Journal of Homosexuality 312, 2013).

From SmartCILP:

• Symposium: The Competing Claims of Law and Religion. Introduction by Robert F. Cochran, Jr. and Michael A. Helfand; articles by James Davison Hunter, Andrew Koppelman, Michael Stokes Paulsen, Abdullahi A. An-Na'im, Mark Strasser, Susan J. Stabile, Barak D. Richman, Sherman J. Clark and John Lawrence Hill; responses by Zachary R. Calo, Patrick McKinley Brennan, Chad Flanders, Richard W. Garnett, Eugene Volokh and Mohammad H. Fadel. 39 Pepperdine Law Review 1051-1425 (2013).
  
• The Sixth Annual John F. Scarpa Conference on Law, Politics, and Culture. A Celebration of the Work of John Finnis. Introduction by Patrick McKinley Brennan; articles by George C. Christie, Michelle Madden Dempsey, Frederick G. Lawrence, Rev. Martin Rhonheimer, Candace Vogler and Michael J. White; responses by Patrick McKinley Brennan, Matthew Lister, Anna Bonta Moreland, Michael P. Moreland and Rev. Richard A. Munkelt; keynote response by John Finnis. 57 Villanova Law Review 809-955 (2012).

Legal Documents To Assist In Following the Upcoming Papal Election

With the proceedings leading to the election of a new Pope scheduled to begin tomorrow, here are formal legal documents and other useful resources for following the process.

The formal rules for electing a pontiff are found in the Apostolic Constitution, On the Vacancy of the Apostolic See and the Election of the Roman Pontiff, promulgated by Pope John Paul II in 1996, as modified by the Apostolic Letter, On Certain Modifications to the Norms Governing the Election of the Roman Pontiff, promulgated by Pope Benedict XVI on Feb. 22, 2013. (An intermediate amendment to the rules promulgated by Pope Benedict XVI in 2007 (full text in French) has been superseded by his 2013 amendments.)

On March 1, Angelo Cardinal Sodano, Dean of the College of Cardinals, issued a formal letter (full text) notifying the Cardinals of the vacancy in the Apostolic See and convoking "the first of the General Congregations of the College of Cardinals, to be held Monday, March 4 at 9:30 am in Paul VI Hall, in the room of the Synod of Bishops."

The OUP Blog has posted a useful guide titled An Oxford Companion to the 2013 Papal Elections.

Recent Prisoner Free Exercise Cases

In Williams v. Fisher, 2013 U.S. Dist. LEXIS 23275 (ND NY, Feb. 20. 2013), a New York federal district court adopted a magistrate’s recommendation (2013 U.S. Dist. LEXIS 24560, Jan. 29, 2013) and refused to dismiss a complaint by a Nazarite Jewish inmate that his religious dietary needs were not being met.

In Elder v. Scolapia, (WV Sup. Ct., Feb. 22, 2013), the West Virginia Supreme Court of Appeals rejected claims by petitioner who was sentenced to home incarceration after pleading guilty to sexual abuse and assault charges that his rights were infringed when the trial court denied his request to attend religious services at a specific church.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 22722 (MD GA, Feb. 20, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 25428, Jan. 15, 2013) and permitted a Muslim inmate to proceed with his claim for injunctive relief under RLUIPA.  Plaintiff claims that the Georgia prison grooming policy violates his rights by not permitting him to grow a beard for religious purposes. Other claims by plaintiff were dismissed.

In Rogers v. Giurbino, 2013 U.S. Dist. LEXIS 26293 (SD CA, Feb. 26, 2013), a California federal district court dismissed an inmate's claim that suspension of Protestant group prayer services, fellowship and ministry classes during the prison lock downs violated his rights under RLUIPA.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 26198 (SD GA, Feb. 26, 2013), a Georgia federal magistrate judge permitted an inmate to proceed with his claim that he did not receive the restricted vegan diet demanded by his religious beliefs.

In Mills v. McGarry, 2013 U.S. Dist. LEXIS 26953 (SD WV, Feb. 26, 2013), a West Virginia federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 186457, Dec. 11, 2012), permitted a Hare Krishna inmate to proceed with his motion for an emergency preliminary injunction under RLUIPA challenging a policy that required him to waive his medical diet in order to receive a diet that comported with his religious beliefs. Agreeing with the magistrate's other recommendations, the court dismissed plaintiff's 1st and 8th amendment and state constitutional claims, saying in part that: "giving a prisoner daily sustenance whose quality comports with the overwhelming majority of society's standards, but of a nature that does not fully comport with a prisoner's religious beliefs" does not amount to cruel and unusual punishment.

In Rutherford v. Hines, 2013 U.S. Dist. LEXIS 24255 (D SC, Feb. 22, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 26312, Jan. 31, 2013) and dismissed an inmate's free exercise claims regarding not receiving a pork-free diet while a pre-trial detainee.

In Duwenhoegger v. King, 2013 U.S. Dist. LEXIS 23498 (D MN, Feb. 21, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 25255, Jan. 28, 2013), and dismissed an inmate's complaint that he was not permitted to send or receive mail using the honorific title "Pastor," and was denied participation in a correspondence Bible studies course while he was in segregation. The court also rejected a large number of complaints about other aspects of plaintiff's confinement.

In Bramlett v. Ligget, 2013 U.S. Dist. LEXIS 27374 (SD IL, Feb. 28, 2013), an Illinois federal district court permitted an inmate to proceed with claims that the correctional center mail room supervisor interfered with his receiving gospel tracts and a religious enrollment form that had been sent to him.

In Cooke v. United States Bureau of Prisons, 2013 U.S. Dist. LEXIS 26947 (D NC, Feb. 27, 2013), a North Carolina federal district court allowed inmates, who were confined to wheel chairs, to proceed with complaints under RFRA and the 1st Amendment that unlike detainees without disabilities they cannot access the religious library or outdoor pagan worship area at their correctional facility.

In Hughes v. Heimgartner, 2013 U.S. Dist. LEXIS 26727 (D KA, Feb. 27, 2013), a Kansas federal district court, while dismissing a number of claims, permitted a Muslim inmate to move ahead with claims for declaratory and injunctive relief under RLUIPA and the 1st Amendment in a suit alleging that while in segregation he had been denied the Halal meal for Eid  ul Fitr that was available to other Muslim inmates.

In Maldonado v. Yates, 2013 U.S. Dist. LEXIS 27163 (ED CA, Feb. 26, 2013), a California federal magistrate judge recommended dismissal of an inmate's complaint that under prison rules he is not allowed to attend religious services of more than one religious group, and that he was denied a kosher diet that he says is better for his health and mental disability. The court said in part: "Plaintiff appears to seek the option to sample whatever religion suits his interest, which is not the purpose of the rights protected by the Free Exercise Clause."

Constitutional Issue Avoided In Preacher's Guilty Plea For Possessing Poisonous Snakes

In a Tennessee trial court last Monday, James Coots, pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, pleaded guilty to illegally possessing poisonous snakes. According to UPI, Coots, whose church engages in the practice of snake handling, legally acquired the snakes in Alabama and was driving through Tennessee taking the snakes to Kentucky where they are also legal to possess. Tennessee police discovered the snakes when they pulled Coots over for having too darkly tinted windows in his car.  Coots lawyer says he believes seizing the snakes was unconstitutional. However, apparently in a plea deal, Coots received only one-year probation in exchange for his guilty plea.

Clergy Have Mixed Views of Arkansas Lifting of Gun Ban In Churches

As previously reported, last month Arkansas adopted the Church Protection Act that removes the absolute ban on carrying handguns in houses of worship and leaves the decision on who may carry a concealed weapon into a church up to each congregation. The Arkansas Times reports this week that the change has been greeted with mixed feelings.

Faith Assembly of God minister Nic Horton says that the new law will allow smaller, rural churches to provide security by arming a few specific trusted parishioners. He says that allowing churches to make that kind of decision is "the real meaning of the separation of church and state."  However Presbyterian minister Marie O'Connell has a different perspective. She complains:

I have to take time out from pastoring and teaching and preaching to work on an issue that was a non-issue before the government decided they wanted it to be an issue. It's a perfect example of society imposing on religion, and religion having to consider: What does this mean? What does this mean for what I believe?"

Court Denies Preliminary Injunction To Non-Liturgical Protestant Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Feb. 28, 2013), the D.C. federal district court refused to issue a preliminary injunction in a suit claiming that the U.S. Navy's chaplain selection process results in denominational favoritism that prefers Catholic and liturgical Protestant chaplains, to the disadvantage of non-liturgical Protestant chaplains. The suit brought by former chaplains, chaplain endorsing agencies and a group of churches claimed, primarily on the basis of statistical evidence, that the Navy discriminates against non-liturgical chaplains in violation of the Establishment Clause and the equal protection component of the 5th Amendment. Plaintiffs point to the unique voting procedures used by chaplains on selection boards. The court held that plaintiffs must prove discriminatory intent to show a constitutional violation, and have failed to do so. The mere disparate impact shown here was not enough to require an inference of purposeful intent. The court's decision came after the case was remanded to it from the D.D. Circuit Court of Appeals. (See prior posting.)

Spanish Supreme Court Invalidates City's Burqa Ban

ANSAMED reports that on Thursday the Supreme Court of Spain overturned a local ban on clothing that covers the face, such as the burqa.  The Catalonian city of Lierda enacted the ban in 2010.  In a challenge to it by the Catalan Muslim Association, the Supreme Court ruled that banning the Islmic veil infringes religious freedom. The full Supreme Court opinion in Spanish is available from this link.

Colorado Appeals Court Rejects Challenge To School Voucher Program

In Taxpayers for Public Education v. Douglas County School District, (CO App., Feb. 28, 2013), a Colorado state appeals court in a 2-1 decision upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students could obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. The appeals court majority held that plaintiffs lack standing to claim that the scholarship program violates the Colorado Public School Finance Act.  The majority also concluded that the voucher program does not violate provisions of the Colorado Constitution that prohibit funding or support of sectarian institutions. Judge Bernard dissented, arguing that the program violates Colorado Constitution Art. IX, Sec. 7 that prohibits state support for any school controlled by any church or sectarian denomination. The ACLU issued a press release, saying it would appeal the decision to the Colorado Supreme Court.

Justice Department Briefs Its Position On Merits In Both SCOTUS Same-Sex Marriage Cases

The U.S. Department of Justice has now filed briefs setting forth its arguments on the merits in the two same-sex marriage cases that will be argued before the Supreme Court later this month.  On Feb. 22, the Justice Department filed a merits brief (full text) in United States v. Windsor, the challenge to the constitutionality of the Defense of Marriage Act.  Yesterday the Justice Department filed an amicus brief (full text) with the U.S. Supreme Court in Hollingsworth v. Perry, the federal equal protection challenge to California's Proposition 8. In both cases, the Justice Department argued that classifications based on sexual orientation should, when challenged under the Equal Protection Clause, be subject to heightened scrutiny. In its Hollingsworth brief, DOJ stated directly that: "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes."

In its Windsor brief, DOJ argued rather straight forwardly that Section 3 of DOMA fails heightened scrutiny. In its Hollingsworth brief, however, the Department of Justice took a more complicated position.  As discussed by Lyle Denniston at SCOTUS Blog, DOJ took the position that California's Proposition 8 fails the heightened scrutiny test, but in an argument that stops short of contending that the U.S. Constitution requires all states to recognize same-sex marriage.  DOJ reasoned that California does not substantially further any important governmental interest by barring same-sex marriage since it already gives same-sex couples the right to enter domestic partnerships that confer all the same rights as marriage.  This argument would apply only to the 8 states that have granted domestic partners or those who have entered civil unions rights equal to those of married couples.