Unusual Fall-Out and Comments Follow Food Company's Challenge To ACA Mandate

As previously reported, last month Eden Foods, a natural and organic food company, filed what seemed to be a clone of the numerous lawsuits by Christian-owned companies challenging the Affordable Care Act contraceptive coverage mandate. However, yesterday Salon reported on the far-from-typical subsequent developments. First, Salon reports a "massive backlash among [Eden's] liberal customer base."  Much of the opposition appeared as comments on Eden's Facebook page.  Second, in an earlier Salon interview Eden CEO Michael Potter cast substantial doubt on whether his objections were really religion-based.  Potter said:

I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.

Interfaith Service In Boston Marks Marathon Bombing

Yesterday, in the aftermath of the Boston Marathon bombings, Boston's Cathedral of the Holy Cross hosted a Healing Our City Interfaith Service. The schedule of speakers included the mayor of Boston, the governor of Massachusetts, President Barack Obama, and religious leaders representing the Catholic, Greek Orthodox, Protestant, Jewish and Muslim faiths. The Catholic Sun reports on the service.  In his remarks (full text) President Obama said in part:

Scripture tells us to “run with endurance the race that is set before us.”  As we do, may God hold close those who’ve been taken from us too soon.  May He comfort their families.

The White House reports:

After the service, President and Mrs. Obama stopped by Boston's Cathedral High School to thank some of Boston's first responders and volunteers for their tireless efforts over the past few days, and then the President visited patients, their families and hospital staff at Massachusetts General Hospital, while the First Lady stopped by Boston Children’s Hospital and Brigham and Women’s Hospital.

The full text of remarks by Governor Deval Pattick and Cardinal Sean O'Malley are also available. C-Span has a video of the entire service.

Christian Club's Suit Against Snow College Settled

The Salt Lake Tribune reported yesterday that a Utah federal district court has approved a settlement in Solid Rock Christian Club v. Wyatt.  The suit, against Ephraim, Utah's public 2-year Snow College, claimed that the school's policy unconstitutionally treated student groups affiliated with religious institutions differently than other student groups. The school relegated to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, and also placed limits on plaintiffs' participation in the "Paint the Town" Homecoming activity. (See prior posting.) Under the settlement, the school distributed a new handbook that eliminates the tiered classification of student groups and changes the method by which funds are distributed to student organizations. The school also affirmed that while it currently does not plan to sponsor the "Paint the Town" event, if it does so in the future it will not restrict religious themes or imagery. The school also paid $12,000, of which all but $800 went for attorney's fees to Alliance Defending Freedom.

5th Circuit: Factual Issues Require Trial In Bus Driver's Religious Accommodation Claim

In Antoine v. First Student Inc., (5th Cir., April 10, 2013), the U,S, 5th Circuit Court of Appeals held that disputed issues of fact require that a Title VII religious accommodation claim brought by a Seventh Day Adventist be remanded for trial to the Louisiana federal district court.  At issue is the attempt by plaintiff, a school bus driver, to adjust his work shift to avoid working after sunset on Friday afternoons when his Sabbath began. The court held that factual issues remain as to whether the bus company, First Student, Inc., reasonably accommodated driver Robert Antoine's religious needs:

First Student asserts that it was solely Antoine’s responsibility to find a replacement driver, while Antoine asserts that First Student offered to find a substitute driver and then failed to follow through on this offer. As to the second issue, First Student contends that the CBA [collective bargaining agreement] generally prohibits voluntary shift swaps, but that it intended to circumvent this general prohibition if Antoine first found someone to take his shift. On the other hand, Antoine asserts that First Student never pursued a preliminary agreement from the union to consider any alterations to the CBA in order to accommodate him. 

Adventist News Network reports on the decision.

9th Circuit Oral Arguments Available In Challenge To California Teen Reparative Therapy Ban

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging California's ban on mental health care professionals providing so-called reparative therapy to teens.  California last year enacted the Sexual Orientation Change Efforts provision (full text) that bars mental health care providers from engaging in efforts to change the sexual orientation of anyone under 18 years of age. Separate federal district court judges took opposing positions on whether the law violates free expression protections. (See prior posting.) Appeals in both cases were heard yesterday. The audio of the arguments in Pickup v. Brown and in Welch v Brown is available from the 9th Circuit's website. AP reports on the oral arguments.

McDonald's Settles Class Action Over Misrepresenting Chicken As Halal

According to the Detroit Free Press, a Michigan trial court on Wednesday approved a settlement in a class action lawsuit brought against McDonald's for sometimes selling non-Halal chicken products to customers as Halal meat. Two McDonald's restaurants in Dearborn, Michigan are the only two U,S. outlets of the restaurant chain that serve Halal chicken. Under the settlement, McDonald's will pay $700,000. Of that only $25,000 goes to the lead plaintiff in the case. $275,000 goes to a Muslim health center in Detroit; $150,000 goes to the Arab American National Museum in Dearborn; and $250,000 goes for attorneys' fees. Critics of the settlement argue that more of it should have gone to individual Muslims impacted by the restaurants' actions.  For two months, an injunction had effectively shut down a Facebook page critical of the settlement.

Supreme Court Says Alien Tort Statute Does Not Apply Extraterritorially

The U.S. Supreme Court today substantially narrowed the ability of foreigners to use U.S. courts to sue over human rights abuses-- presumably including religious persecution-- that occurred abroad.  In Kiobel v. Royal Dutch Petroleum Co., (Sup. Ct., April 17, 2013), Justice Roberts, speaking for a majority of the Court, held that the Alien Tort Statute, 28 USC 1350, does not apply extraterritorially. The statute gives federal district courts jurisdiction over suits by aliens committed in violation of the law of nations.  However, Justice Roberts held that this does not generally apply to conduct that took place outside the United States:

even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.

In the case before the Court, plaintiffs alleged that various multi-national corporations aided the Nigerian government in its human rights abuses in Nigeria in the early 1990's. The case also produced three concurring opinions, each taking a somewhat different approach to the scope of the Alien Tort Statute, but all agreeing it does not apply in the case before the Court. The Los Angeles Times reports on the decision.

Renowned Turkish Pianist Given Suspended Sentence For Blasphemous Tweets

Bloomberg News and Reuters report that on Monday a criminal court in Istanbul, Turkey convicted classical pianist and composer Fazil Say-- Turkey's most internationally renowned artist-- of insulting religious values through Twitter postings. Among the six or so Tweets mentioned in the indictment is one, for example,  that makes fun of a muezzin for taking merely 22 seconds to chant the call to prayer, asking if he has a mistress or some raki waiting for him. Another is a retweet of a verse by Persian poet Omar Khayyam: "You say rivers of wine flow in heaven, is heaven a tavern to you? You say two houris await each believer there, is heaven a brothel to you?"

The court imposed a 10 month suspended sentence on Say, indicating that he would be imprisoned only if he commits a similar crime again within the next 5 years. There were also suggestions from a plaintiff in the case that the sentence might be dropped if it is shown, as has been suggested, that Say suffers from autism. The European Commission issued a statement criticizing the blasphemy conviction, emphasizing the importance for Turkey to fully respect freedom of expression as protected in the European Convention on Human Rights. Turkey's application to join the European Union has been delayed, in part because of its civil liberties record.

South Dakota City Opts For No Formal Prayer Policy In Face Of Challenge

The Rapid City (SD) Journal reports on the response of Rapid City Council to objections that have been raised to its invocation policy. In January, the Freedom From Religion Foundation wrote to Council asking it to end its tradition of opening Council meetings with an invocation. Council responded at its Feb. 4 meeting by voting to continue to have an invocation and asking the city attorney to draft a formal written policy on the issue. On Feb. 15, FFRF wrote another letter (full text) setting out its legal position. In a Memo to the Mayor and Council dated April 3 (full text), city attorney Joel Landeen suggested elements of a policy that would strengthen the city's legal position: Move the invocation before the meeting formally starts and limit the time of those delivering it; formalize an inclusive process for selecting those who will deliver the invocation; state that the invocation should be non-sectarian and that it should not be used to proselytize or disparage other religions. By a unanimous vote, however, City Council last Monday chose instead to adopt no policy and remain in the position of defending its traditional informal invocation policy. It also agreed in an 8-2 vote that in June it will consider offers by outside organizations that have volunteered to help it with its legal defense if FFRF files suit.

Religion Clause Blog Is 8 Years old Today!

Religion Clause is 8 years old today! To long-time readers, as well as to those who have discovered the blog more recently, thank you for your interest and loyalty.  My Site Meter has recorded over 1.4 million visits since the blog began in 2005-- long ago in the world of social media.

Religion Clause is intentionally a niche blog-- with special appeal to those teaching Religion and Law or 1st Amendment courses, to those working professionally for advocacy organizations, to those litigating in the area or advising organizational clients, to journalists and other bloggers reporting on church-state and religious liberty developments, and to the intelligent citizen who is curious about law and policy in these areas. Religion Clause has often been ahead of many mainstream media in covering important and interesting stories.

In today's highly-politicized world of information, Religion Clause is committed to religiously and ideologically neutral reporting, with extensive links particularly to primary source material. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause and readers' input is invaluable. You can reach me at religionclause@gmail.com. I also welcome Comments to this post with any suggestions for changes or improvements for the coming year. I hope you will all remain loyal readers and will continue to recommend Religion Clause to your colleagues and friends.

Another Contraceptive Coverage Mandate Challenge Dismissed On Ripeness Grounds

In Priests for Life v. Sebelius, (ED NY, April 12, 2013), a New York federal district court dismissed on ripeness grounds a challenge by a non-profit Catholic organization to the contraceptive coverage mandate under the Affordable Care Act. The court concluded: "The current regulations, which are not being enforced against Priests for Life and are being altered, are not truly final." LifeNews reports on the decision.  Numerous other courts have reached a similar conclusion. (See prior related posting.)

Leading Rabbi-Law Prof's False Online Persona Revealed In Investigative Report

The Jewish Channel, in a lengthy investigative report published last week, reveals that Emory Law Professor and leading Orthodox rabbi Michael Broyde has for 20 years used the pseudonym Rabbi  Hershel Goldwasser to publish in numerous scholarly journals, take part in online dialogues and even join a rival rabbinical organization:

The Goldwasser character became a member of an upstart Orthodox rabbinical group, the International Rabbinical Fellowship, or IRF, which was founded in 2008 as a more-liberal rival to the group of which Broyde is a member, the 90-year-old Rabbinical Council of America, or RCA. With that membership, the Goldwasser character gained access to a members-only e-mail listserv with which he could remain apprised of members’ plans and ideological arguments...

The Goldwasser character would also engage in ideological arguments on the e-mail listserv — often using the seemingly fake identity to cite or tout Broyde’s own work.

As the investigative report appeared, Broyde issued an apology, saying that he and a colleague began using the pseudonym 20 years ago for joint writings. He added: "Recently, someone else who I don’t know has started posting using this pen name which has encouraged a journalist to investigate my pseudonymous activity." Tablet Magazine reports that in response to all of this, the Rabbinical Council of America has granted Broyde an indefinite leave of absence as a judge on its rabbinical court, the Bet Din of America. In a statement issued yesterday, Rabbinical Council of America called Broyde's behvior "deeply troubling," and said that Broyde has also requested a leave of absence from his membership in the RCA. It added: "We will continue to investigate this matter in order to determine further appropriate action."

Does White House Fitness Council's Encouragement of Yoga Violate Establishment Clause?

The President's Council on Sports, Fitness and Nutrition promotes the White House's efforts to get American's to adopt healthy lifestyles. One of the Council's efforts is PALA+, part of the President's Challenge, which includes the Yoga PALA Challenge. Encouraging participation, the Yoga PALA Challenge website says:

Yoga has become a universal language of spiritual exercise in the United States, crossing many lines of religion and cultures. Everyday millions of people practice yoga to improve their health and overall well-being. That’s why we’re encouraging everyone to take part in PALA+, so show your support for yoga and answer the challenge!

However, according to an article from the Wall Street Journal yesterday, some argue that this promotion of yoga crosses the line of permissible church-state relationships. An attorney representing families who are challenging the teaching of yoga in the Encintas California Union School District (see prior posting) says that use of government funds to promote yoga violates the Establishment Clause.  He argues that yoga poses are worshipful acknowledgements of Hindu deities. He adds: "because yoga is based in Eastern mysticism, which is not well understood, many tend to try to disingenuously downplay its religious aspects."

Hawaii Court Says Conscience Refusal of B&B To Rent To Lesbian Couple Violates State Civil Rights Law

A Hawaii Circuit Court judge yesterday held that a bed-and-breakfast violated Hawaii's public accommodation civil rights law when its owner, apparently for reasons of religious belief, refused to provide lodging to a lesbian couple. Lambda Legal reports on the court's decision in Cervelli & Bufford v. Aloha Bed & Breakfast. During a Hawaii Civil Rights Commission investigation, the bed-and-breakfast owner said she turned the lesbian couple away because she believes that same-sex relationships are "detestable" and that they "defile our land." AP reports on the decision.

Satmar Hasidic Town Constructs First Ever Sex-Segregated Playground In U.S. To Meet Religious Standards

The Forward reported last week that in the largely Satmar Hasidic village of Kiryas Joel, New York, the first-ever sex-segregated public playground in the United States has been constructed. The 283-acre playground has widely separated areas: one for fathers with their sons; one for mothers with their daughters; one for boys, and one for girls. There are also separate walking trails for males and females. Apparently non-Jews, and non-Haredi (non-strictly Orthodox) Jews will not be permitted to enter the playground at all.  The playground design is seen by community residents as meeting the strict legal requirements of "Torah-true Jews." According to YourJewishNews.com, the playground received special financing from Kiryas Joel mayor Rabbi Abraham Wieder, though the exact source of the funds he made available is unclear. According to Gestetner Updates yesterday, the town previously refused a grant from New York state for the project. The playground is strictly supervised by the Kiryas Joel Committee of Modesty. Behadrey Haredim has photos of the playground.

4th Circuit Dismisses Free Exercise and Other Challenges To Offender Registry Law

In Doe v. Virginia Department of State Police, (4th Cir., April 12, 2013), the U.S. 4th Circuit Court of Appeals dismissed, largely on standing and ripeness grounds, a woman's challenge to changes in Virginia statutes that resulted in her being classified as a sexually violent offender and precluded her from entering the grounds of a school or daycare without first gaining permission from a Virginia court and the school board or the owner of the daycare. One of plaintiff's claims was that her free exercise rights were violated because all the churches of her faith in the area have Sunday Schools. Thus she is precluded from worshiping there without going through a procedure for permission that will disclose her status as a sexual offender to the school community and have dire social consequences for her children.

Recent Prisoner Free Exercise Cases-- Installment #2 For The Week

In Garner v. Kennedy, (5th Cir., April 2, 2013), the 5th Circuit Court of Appeals concluded that the state of Texas had failed to adequately justify under RLUIPA its policy of prohibiting prisoners from wearing beards for religious reasons.

In United States v. Lepp, 2013 U.S. Dist. LEXIS 51262 (ND CA, April 9, 2013), a California federal district court rejected a post-conviction attack on the sentence for possession and manufacture of marijuana imposed on defendant who had claimed that he was a practicing Rastafarian and that marijuana use was a necessary component of his religious practices.

In Neal v. McKune, 2013 U.S. Dist. LEXIS 50769 (D KA, April 9, 2013), a Kansas federal district court dismissed a Muslim inmate's complaint that on several occasions during two Ramadan periods prison officials failed to serve him breakfast early enough, so that he either missed breakfast or was very hurried in being able to eat before dawn.

In Gillis v. Skinner, 2013 U.S. Dist. LEXIS 51112 (WD LA, April 7, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 51131, Feb. 24, 2913) and dismissed an inmate's claim that a corrections officer asked him to leave church services because of his sexual orientation. The court found he was asked to leave because of disruptive behavior.

In Barstad v. Washington State Department of Corrections, 2013 U.S. Dist. LEXIS 51805 (WD WA, April 10, 2013), a Washington federal district court adopted almost all of a magistrate's recommendations (2013 U.S. Dist. LEXIS 51808, March 5, 2013) and dismissed complaints of an inmate, a follower of the Rosicrucian Fellowship, that prison officials violated his rights by eliminating the ovo-lacto vegetarian diet and replacing it with a strict vegan diet. The court also dismissed an added complaints that scanning his identification card in order to get his meal amounted to imposing "the Mark of the Beast," and that eggs and milk were expensive at the prison commissary.

In Sims v. Cabrera, 2013 U.S. Dist. LEXIS 51849 (ED CA, April 9, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that prison officials' refusal to remove his former gang affiliation from his bed card and central file prevents him from freely practicing his religion.

In two related cases, Maynard v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52317 (D ID, April 8, 2013) and Austin v. Wamble-Fisher, 2013 U.S. Dist. LEXIS 52318 (D ID, Apri 8, 2013), an Idaho federal district court permitted two inmates to proceed with their claims that terminating them from their volunteer positions aiding seriously ill inmates and otherwise reducing Christian religious activities violated their free exercise, RLUIPA and equal protection rights.

In Jabbar v. Contingency Work Force Solutions, Inc., 2013 U.S. Dist. LEXIS 46661 (D MN, April 1, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 51299, March 4, 2013) and dismissed for failure to exhaust administrative remedies a Muslim inmate's claims that the contract food-service provider failed to provide food that complied with Muslim dietary restrictions by using itemswith alcohol and pork ingredients.

In Smith v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 52547 (WD WA, April 11, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 52625, March 6, 2013) and dismissed a Muslim inmate's objections to the food provided during Ramadan in 2010.

Free Exercise and Other Claims Over Arrest Made In Church Will Proceed To Trial

Family Worship Center Pentecostal Church of Holiness, Inc. v. See, (ED WI, April 12, 2013), is an unusual case in which a church and two of its members filed suit against the city of Milwaukee and two police officers challenging the action of the police in pursuing a mentally disturbed man into the church and arresting him in the pulpit area.  The court dismissed plaintiffs' equal protection claim, holding:

That someone believes that the officers "probably" would have treated a white congregation differently does not constitute direct proof of purposeful discrimination by the officers present on the evening of December 10, 2006.

The court also dismissed various state tort law claims. However, the court concluded that there are 1st, 4th, and 14th Amendment, as well as other state law, claims that must go to trial. The court summarized plaintiffs' 1st Amendment free exercise allegations:

Here, plaintiffs have produced evidence that [Officers] See and Humitz stayed for some time after Jones's arrest ignoring church members' requests to leave so that they could continue their worship. In addition, See ordered the music to stop and ordered a child—speaking in tongues—to "shut up."

Anti-Abortion Protester Denied Attorneys' Fees Award Despite Successful Lawsuit

As previously reported, the U.S. Supreme Court last November in  Lefemine v. Wideman 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. The suit grew out of a 2005 anti-abortion demonstration at which police officers threatened to charge picketers with breach of the peace if they did not get rid of signs picturing aborted fetuses. Now in Lefemine v. Wideman, 2013 U.S. Dist. LEXIS 51407 (D SC, April 9, 2013), a South Carolina federal district court held that "the special circumstances in this case render an award of attorney's fees to the Plaintiff unjust."  In reaching its conclusion, the court pointed to: "(1) the Defendants' qualified immunity, (2) the absence of a policy or custom of discrimination against abortion protesters by the Greenwood County Sheriff's Office, and (3) the limited nature of the injunctive relief."

Recent Articles and Books of Interest

From SSRN:

• Roger Cotterrell, Jack Balkin’s Constitutional Faith, (Public Law [2013] pp. 443-9).
• Brian Michael McCall, Decorating the Structure: the Art of Making Human Law, (Catholic Lawyer, Forthcoming).
• Jeremy Grunert, How Do You Solve a Problem Like Sharia? Awad v. Ziriax and the Question of Sharia Law in America, (Pepperdine Law Review, Vol. 40, No. 3, 2013).
• Roger Colinvaux, Rationale and Changing the Charitable Deduction, (Tax Notes, Vol. 138, No. 1453, 2013).
• Michael A. Helfand, What is a 'Church'?: Implied Consent and the Contraception Mandate, (Journal of Contemporary Legal Issues, 2013).

From SmartCILP:

• Kinch Hoekstra, Early Modern Absolutism and Constitutionalism, (34 Cardozo Law Review 1079-1098 (2013)).
• Arthur J. Jacobson, Job's Justice, (34 Cardozo Law Review 983-997 (2013)).
• David N. Wagner, The Obligation of Government Toward Humanity: The Role of the State In the Common Good, (35 Campbell Law Review 1-58 (2012)).
• Alex E. Wallin, John Finnis's Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods, (35 Campbell Law Review 59-81 (2012)).
• Poverty, Islamist Extremism, and the Debacle of Doha Round Counter-Terrorism: Part One of a Trilogy--Agricultural Tariffs and Subsidies. Foreword by Joel A. Nichols; article by Raj Bhala; reply by Robert J. Delahunty; response by Frank J. Garcia. 9 University of St. Thomas Law Journal 1-213 (2011).

New Books:

• Tahir Mahmood, Religion Law & Society - Across the Globe, (Universal Law Publishing Co., April 2013), reviewed by News4Education.
• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).

Court Upholds Unemployment Benefit Denial To Employee Who Refused To Wear Company's Religious Mission Statement

In Mathis v. Unemployment Compensation Board of Review, (PA Commonwth. Ct., April 9, 2013), the Pennsylvania Commonwealth Court held that a former employee who left because he objected to wearing the religious message on his employer's identification badge voluntarily resigned without a compelling reason and so is ineligible for unemployment compensation benefits. The claimant, Paul Mathis, who was a sheet metal installer, objected to this mission statement of Christian Heating & Air Conditioning Co. on the reverse side of the badge:

This company is not only a business, it is a ministry. It is set on standards that are higher than man's own. Our goal is to run this company in a way most pleasing to the Lord. Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court concluded that Mathis had not offered evidence of any contrary sincerely held religious beliefs, nor did he attempt  to describe any actual conflict between a religious belief and the badge requirement.

Recent Prisoner Free Exercise Cases

In Sanders v. Cain, 2013 U.S. Dist. LEXIS 47634 (MD LA, March 29, 2013), a Louisiana federal district court permitted an inmate to proceed with his complaint that Mormon inmates were not allowed to hold worship services on Sundays at the main prison complex interfaith chapel. However the court dismissed various other claims, including complaints of lack of office space and fund-raisers to purchase religious material for the Mormon community, as well as retaliation and defamation claims.

In Catanzaro v. Harry, 2013 U.S. Dist. LEXIS 46671 (WD MI, Feb. 19, 2013), a Michigan federal magistrate judge recommended dismissal of an inmate's claim that he was not allowed to attend church services while he was on parole to a Residential Sex Offender Program.

In Johnson v. Bailey, 2013 U.S. Dist. LEXIS 46473 (SD IL, March 30, 2013), an Illinois federal magistrate judge found no free exercise or RLUIPA violations at present in the time given a Buddhist inmate to eat his meals. The court said however that if, as was the case two yeas ago, the inmate had only 2 to 5 minutes to eat his religious diet, this would be a substantial burden on his religious practice.

In Rippy v. North Carolina, 2013 U.S. Dist. LEXIS 45666 (WD NC, March 29, 2013), an inmate claimed his free exercise rights were infringed when he was denied access to a yoga class and a 12-step program and was told to behave during an Islamic service. A North Carolina federal district court dismissed the in forma pauperis action pursuant to the Prisoner Litigation Reform Act because the inmate had previously filed 3 other suits dismissed as frivolous.

In Dickerson v. Gusman, 2013 U.S. Dist. LEXIS 47592 (ED LA, April 2, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 47595, March 7, 2013) and dismissed for lack of prosecution an inmate's complaint that he is not allowed to attend Jumah and other Islamic services.

In Taylor v. Godinez, 2013 U.S. Dist. LEXIS 48596 (SD IL, April 3, 2013), an Illinois federal district court rejected the free exercise and RLUIPA claims by an inmate who was an ordained Baptist minister who attempted to satisfy his tithing obligations by giving away 10% of his commissary purchases to other inmates. He was disciplined for violating prison rules against trading and trafficking.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) and dismissed on qualified immunity grounds a claim by a Rastafarian inmate for a non-flesh food diet cooked and served with separate vessels and utensils from meat items.

In Prall v. Supreme Court, 2013 U.S. Dist. LEXIS 48788 (D NJ, April 4, 2013), a New Jersey federal district court dismissed complaints about disapproval and rejection in earlier state court proceedings of an inmate's conscientious objection (based on his Nation of Gods and Earth's beliefs) to participation in the criminal justice system.

In Gowers v. Haleen, 2013 U.S. Dist. LEXIS 49709 (D UT, April 4, 2013), a Utah federal district court rejected a Mormon inmate's complaints that his free exercise rights were infringed when he was denied participation in auxiliary religious activities such as choir, piano or organ practice; he was randomly excluded from worship services; and he was suspended from all activities including worship services for disciplinary reasons.

In Heim v. York County Prison, 2013 U.S. Dist. LEXIS 50074 (MD PA, April 8, 2013), a Jewish inmate complained about delays in responding to his kosher diet request and retaliation, including anti-Semitic caricatures, because of his insistence on a kosher diet. A Pennsylvania federal district court dismissed his suit against institutional and supervisory defendants, but permitted him to proceed against the chaplain, the complaint supervisor and the correctional officers that allegedly harassed him.

In People v. Osman, 2013 Cal. App. Unpub. LEXIS 2487 (CA App., April 8, 2013), a California state appellate court rejected free exercise and equal protection challenges to a risk factor analysis for sex offenders used by the probation department which treated as added risk the fact that an individual had not lived with a lover for at least 2 years. Defendant argued that his Muslim religion bars cohabitation before marriage.

In Abpikar v. Martin, 2013 U.S. Dist. LEXIS 50433 (ED CA, April 6, 2013), a California federal magistrate judge permitted a federal inmate to proceed on his complaint that he was not permitted to participate in group worship with other Muslim inmates.

Court Approves Recovery For Chicago's Meritless Lawsuit Against Religious Group

In World Outreach Conference Center v. City of Chicago, 2013 U.S. Dist. LEXIS 46943 (ND IL, April 1, 2013), on remand from the 7th Circuit (see prior posting), an Illinois federal district court resolved the remaining issues in a challenge to the City of Chicago's rezoning of a former YMCA building.  World Outreach Center, a religious organization, was delayed for two years while it obtained required licenses and permits from housing Hurricane Katrina evacuees there and from operating it as a community center.  The court rejected most of World Outreach's equal protection and religious discrimination claims. However the court held that the City had imposed a substantial burden on World Outreach by filing and maintaining a meritless lawsuit against it, and that World Outreach is entitled to recover the attorneys' fees it incurred in defending the lawsuit. It concluded that an inference of hostility to religion could be drawn from the filing of the suit.

UPDATE: An Amended Opinion was issued on June 10, 2013.

2nd Circuit: Establishment Clause Claim that "Feminism Is Religion" Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, (2d Cir., April 10, 2013), the 2nd Circuit dismissed on collateral estoppel grounds an action claiming that the state and federal governments have violated the Establishment Clause by providing funding to Columbia University which maintains an Institute for Research on Women’s and Gender Studies and a Women’s Studies program. Plaintiff argues that feminism is a "modern-day religion." The courts had dismissed a similar suit in 2010 on standing grounds, and so the issue cannot now be relitigated. The court added: "Hollander is an attorney. Before again invoking his feminism-as-religion thesis in support of an Establishment Clause claim, we expect him to consider carefully whether his conduct passes muster under Rule 11," the procedural rule that imposes sanctions on attorneys for filing frivolous lawsuits. (See prior related posting.)

EEOC Raises Triable Questions of Fact On Abercrombie's Failure To Hire Muslim Teenager

Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc., (ND CA, April 9, 2013), involves the question of whether Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act when it failed to hire a Muslim teenager, Halla Banafa, as a part-time stock-room employee. Banafa wore a hijab to her job interview. Abercrombie has a "Look Policy" that governs the dress of employees, and it precludes any kind of head wear (though the company has made exceptions). A California federal district court rejected several of Abercrombie's defenses and held that triable issues of fact exist as to whether Banafa's religion was the motivating factor in her failure to be hired.

One of Abercrombie's more interesting defenses was a 1st Amendment argument that "forcing Abercrombie to grant a Look Policy accommodation to a Muslim in-store employee who wears a hijab for religious reasons would... amount to the government's compelling it to advertise a fashion inconsistent with its “East Coast” and “preppy” style...."  The court said, however, that "Abercrombie cannot achieve an end-run around Title VII by elevating the appearance of its stock room employees to protected commercial speech." However it left open "the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech." [Thanks to Jeffrey Pasek for the lead.]

6th Circuit: Church Has Standing To Sue Over Police Investigations of Loud Music

In Faith Baptist Church v. Waterford Township, (6th Cir., April 11, 2013), the U.S. 6th Circuit Court of Appeals held that a Michigan federal district court was wrong in denying a  church standing to complain about police investigations of complaints about loud music coming from the church during rehearsals, services and concerts. (See prior posting.)  The 6th Circuit said:

Plaintiffs have shown they have a reasonable fear that their speech, free exercise of religion, and freedom of association will be chilled.... Although Defendants did not actually enforce the ordinance, they credibly threatened to do so. As a result, Plaintiffs sustained a concrete and particularized injury.

The court also held that  claims against the prosecuting attorney in his individual capacity for injunctive and declaratory relief were improperly dismissed by the district court on qualified immunity grounds.  However the appeals court affirmed the district court's dismissal of civil conspiracy, equal protection and 4th Amendment claims, as well as all claims against the prosecuting attorney in his official capacity and for monetary damages in his individual capacity. [Thanks to Brian D. Wassom for the lead.]

Appeals Court: Wrong Standard Used In Denying YMCA's Property Tax Exemption

In Larimer County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., April 11, 2013), a Colorado state appeals court held that the Board of Assessment Appeals applied the wrong legal test in denying the YMCA (except for its chapels and religious activity center) a religious purposes exemptions from property taxes for its two extensive recreational sites. The court concluded that the appeals Board had not applied the statutory presumption in favor of an exemption where an applicant has filed a declaration that sets forth its religious mission and purposes. Instead the Board's engaged in a detailed examination of a number of factors in determining that the YMCA's uses were not solely and exclusively religious.  The court said that this approach fosters an excessive government entanglement with religion. Also the Board erred in not considering whether the YMCA qualified for a partial charitable use exemption.

Azerbaijan's President Approves Restrictive Law On Distribution of Religious Books and Materials

News.Az today reports that Azerbaijan's president Ilham Aliyev has signed an order approving amendments to the Law on Freedom of Religion. Under the amendments, individuals and religious organizations can only acquire and use religious books, e-books, videos and other religious products and materials that are labeled with a special control stamp by government authorities. Government approval is required for the production, import or export of religious materials which must also be marked with a special control stamp before distribution.  Sale of religious materials can take place only at specialized locations established with government approval.

2 Studies Released: Religious Courts In US and State Bans on Applying Foreign Or Religious Law

Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.  It surveys developments in 32 states in which legislation has been proposed, including 6 in which legislation has been enacted, to ban state courts from considering foreign or religious law in their decision making.

President Awards Medal of Honor Posthumously To Korean War Army Chaplain

Yesterday, President Obama awarded the Medal of Honor posthumously to Army Chaplain Emil Kapaun for his bravery during the Korean War. (White House Blog report.)  The President recounted at length Chaplain Kapaun's bravery in comforting the dying in a battle with Chinese troops early in the Korean War at Unson, and his subsequent service to his fellow prisoners of war in their prison camp where Kapun eventually died from disease and mistreatment. (Full text of President's remarks.)

In 2-1 Decision, State Appeals Court Says Judge's Reference To Biblical Passage Was Not A Problem

In In re Marriage of Sarah Peterson v. Adam Peterson,(MN Ct. App., March 25, 2013), the Minnesota Court of Appeals, in a 2-1 decision, upheld a trial court's award of sole physical custody of 3 minor children to the wife in a divorce action. One issue in the case was whether the trial judge improperly interjected her personal beliefs about a Biblical passage regarding a husband's authority to make decisions in the home.  The majority concluded that the judge's "brief, personal comments" were not an abuse of discretion, particularly since husband's lawyer did not object to them.

Judge Ross, dissenting in part, however took a very different view of the trial judge's comments that in her own marriage she dismissed the Biblical injunction that wives should obey their husbands. The dissent said in part:

I think a district court acts beyond its broad discretion in deciding child custody if the judge personally suggests her approval or disapproval of a religious doctrine that only one of the parties holds.... [K]nowing that the doctrine had taken a lead role in the custody trial, the judge revealed her bias by volunteering that in her own marriage she had “dismissed” the doctrine.

Judge Ross also expressed another concern:

Despite overwhelming evidence and findings recognizing that the children have always attended and continue to be actively involved in the marital church where they grew up, the district court never assesses how the children’s need for stability is impacted by the disruption in their church-related activities if Sarah has sole physical custody.

The Minneapolis Star Tribune reports on the decision.

Israeli Court Orders Release of Women Arrested For Praying With Prayer Shawls At Western Wall

In Israel, a Jerusalem Magistrate's Court yesterday ordered the release of 5 women who had been arrested after participating with Women of the Wall in their monthly women's prayer service near the Western Wall. According to Times of Israel, the women were arrested for wearing prayer shawls (traditionally worn only by men) during their Rosh Hodesh (new month) service. Women of the Wall have engaged in increasingly large prayer services since 1988 in their efforts to obtain legal recognition of egalitarian Jewish prayer at the Wall. The arrests came just as the Israeli government is moving toward a possible compromise between the more liberal branches of Judaism and the Orthodox rabbis who currently control the customs observed at the Western Wall plaza.  Judge Sharon Lary-Bavly, in ordering the women's release from custody, said that there were no grounds for their arrest and likened actions by the police to blaming a rape victim for the clothes she wears.

UPDATE: A transcript of the Court hearing and judge's ruling is available online via Failed Messiah blog.

President's Faith-Based Advisory Council Issues Report On Combating Human Trafficking

Yesterday the President's Advisory Council on Faith-based and Neighborhood Partnerships presented its recommendations on combating human trafficking in a 35-page report titled Building Partnerships to Eradicate Modern-Day Slavery. Advisory Council chair Susie Stern presented the report, and Melissa Rogers, director of the White House Faith-Based Office thanked the Advisory Council for its recommendations.

7th Circuit: Civil Courts Are Bound By Church Ruling That Defendant Is Not A Member Of A Religious Order

McCarthy v. Fuller, (7th Cir., April  10, 2013), is a complicated dispute over who is entitled to the possession of documents and artifacts of Sister Mary Ephrem who claimed to have experienced a series of apparitions of the Virgin Mary in which Mary told Sister Ephrem, "I am Our Lady of America." Sister Ephrem willed all her property to Sister Mary Joseph Therese, referred to in the litigation by her birth name, Patricia Fuller.  However, a lawyer, Kevin McCarthy and a Catholic layman, Albert H. Langsenkamp, who claims to be a Papal Knight of the Holy Sepulcher, contend they are entitled to the property and artifacts after they had a falling out with Fuller.  In this decision, an interlocutory appeal of an Indiana federal district court's order, the U.S. 7th Circuit Court of Appeals held that civil courts must recognize a ruling by the Holy See that "Patricia Ann Fuller is not a member of any religious Institute, formally recognized by the Catholic Church." That status is relevant to several issues in the litigation brought by McCarthy against Fuller-- allegations by Fuller that McCarthy defamed her by calling her a "fake nun," and allegations by McCarthy that Fuller defrauded him by misrepresenting herself as being a nun and living in a convent. Writing for a unanimous 7th Circuit panel, Judge Posner said:

In [its amicus brief] the Holy See has spoken, laying to rest any previous doubts: Fuller has not been a member of any Catholic religious order for more than 30 years. Period. The district judge has no authority to question that ruling. A jury has no authority to question it. We have no authority to question it.

AP reports on the decision.

Kansas Governor Signs Preservation of Religious Freedom Act

Yesterday, Kansas governor Sam Brownback signed HB 2203, the Preservation of Religious Freedom Act (full text). The new law provides in part:

Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest....

Section 4 of the new law, however, limits its application in a number of ways.  Among other things, it does not apply to suits challenging prison or jail rules or conditions. It also does not authorize the application or enforcement in Kansas courts "of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States." AP has further background on the law.

Singapore Court Refuses To Strike Down Ban On Male Homosexual Conduct

In Lim Meng Suang v. Attorney General, (Singapore High Ct., April 9, 2013), a Republic of Singapore trial court refused to declare Singapore's ban on male homosexual conduct to  be unconstitutional. Holding that the  ban is "an issue of morality and social values," the court in a lengthy opinion concluded that it cannot substitute its own views for that of Parliament where Parliament's decision is not "undeniably wrong." The National Law Journal, reporting on the decision, quotes the reaction of the gay couple who unsuccessfully challenged the law: "it is disheartening that we are criminals in the eyes of the law because of a segment of society ... insist on pushing their version of religion and morality on us."

President Renews Faith-Based Advisory Council

Last Friday, President Obama issued an Executive Order (full text) extending the life of the President's Advisory Council on Faith-Based and Neighborhood Partnerships for another two years. [Thanks to Blog From the Capital for the lead.]

Washington State AG Sues Florist Who Refused To Sell Flowers For Gay Wedding

Washington state attorney general Bob Ferguson announced yesterday that his office has filed a consumer protection lawsuit against a retail florist for refusing to sell flowers to a customer who wanted to purchase them for his wedding.  The complaint (full text) in  State of Washington v. Arlene's Flowers, Inc.,(Super Ct., filed 4/9/2013), alleges that the flower shop owner, Barronelle Stutzman, told customer Robert Ingersoll that she could not provide the flowers for his same-sex wedding "because of [her] relationship with Jesus Christ." The complaint alleges further that the sexual orientation discrimination involved here is a violation of the public accommodate provisions of Washington's Law Against Discrimination and thus a per se violation of the state's Consumer Protection Act. AP reports on the lawsuit.

South African Human Rights Commission Says Christian Center Violates LGBTI Rights

The South African Human Rights Commission yesterday issued a statement finding the Christian-affiliated Creare Training Centre has violated Lesbian, Gay, Bisexual, and Transgender (LGBTIs) rights to equality, dignity, religion, freedom of association, freedom and security of the person and education. The Centre was created by Our Father's Home Church and specializes in Christian studies and Christian Arts and Mission, It does not permit anyone in a same-sex "lifestyle" who "is not willing to be disciplined in this regard" to continue to study or lecture at the Centre. The Centre adds: "We offer ministry to help people that want to change their sexual orientation...." Gay Star News reports on the statement.

Catholic Diocese Sues Metals Dealer For Buying Stolen Church Vessels

According to the Toledo Blade, on Monday the Catholic Diocese of Toledo filed suit in an Ohio state trial court against a precious metals dealer that bought a solid silver gold-plated chalice and a gold ciborium. Both items were stolen from local Catholic churches. The complaint alleges that Toledo Coin Exchange "knew or should have known that the person from whom he purchased the stolen items was either a thief or a receiver of stolen property."

White House Issues Yom Hashoah Statement

Yesterday was Yom Hashoah, Holocaust Remembrance Day, on the Jewish calendar. The White House released a statement from President Obama (full text) marking the commemoration. The statement said in part:

Today, we honor the memories of the six million Jewish victims and millions of others who perished in the darkness of the Shoah.  As we reflect on the beautiful lives lost, and their great potential that would never be fulfilled, we also pay tribute to all those who resisted the Nazis’ heinous acts and all those who survived.

JTA reports on this, as well as a separate statement by Rep. Nancy Peolsi.

Romanian High Court Rejects Strange Religious Malpractice Lawsuit

The London Daily Mail reported last Saturday that Romania's High Court of Cassation has affirmed a lower court's decision rejecting a bizarre "religious malpractice" suit brought by lawyer Madalin Ciculescu against Orthodox bishop Constantin Argatu and four priests.  The lawsuit claims that the clergy failed to properly exorcise demons that were responsible for the bad smells that were ruining Cirlescu's business. Plaintiff says that the demons are now haunting him at home as well. The court agreed with the Church that the continued bad smells are imagined, and ordered Ciculescu to pay defendants' legal costs. Ciculescu says he plans to appeal to the European Court of Human Rights.

10th Circuit: School Did Not Violate Constitution In Preventing Religious Group From Distributing Fetus Dolls

In Taylor v. Roswell Independent School District, (10th Cir., April 8, 2013), the U.S. 10th Circuit Court of Appeals rejected 1st and 14th Amendment challenges by student members of a religious group, Relentless, to decisions by Roswell, New Mexico school officials that prevented them from distributing 2500 rubber fetus dolls to other high school students. The schools took the action after disruptions, described by the court as follows, caused by an initial distribution of the dolls:

Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

The court also reject plaintiffs' challenge to a district policy requiring pre-approval for distribution of all non-school sponsored material on school grounds. Summarizing its 55-page opinion, the court said:

Plaintiffs’ free speech challenges fail because school officials reasonably forecasted that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students. Plaintiffs’ facial challenge to the school policy also fails. The policy is not unconstitutional under the prior restraint doctrine because it constrains official discretion and contains adequate procedural safeguards—and because it applies to the school environment where greater deference is given to school officials. It is not void for vagueness because students of ordinary intelligence can understand its meaning and it neither authorizes nor encourages arbitrary or discriminatory enforcement.

Education Week reports on the decision.

Yeshiva's Zoning Challenge Dismissed On Ripeness Grounds

In Sheri Torah v. South Blooming Grove & Planning Board of the Village of South Blooming Grove, 2013 U.S. Dist. LEXIS 49797 (SD NY, March 28, 2013), a New York federal district court dismissed a suit by a Hasidic Jewish organization claiming that the village's failure to act on an application for a special permit to operate a yeshiva on plaintiff's leased property violates RLUIPA as well as various federal and state constitutional protections. The court concluded that the dispute is not ripe for review because "plaintiff has not plead that it has obtained a final decision from the Village on its application, and it has not shown that the narrow futility exception to this rule applies."

Philadelphia Archdiocese Finds 3 Accused Priests Unsuitable For Ministry

Yesterday the Catholic Archdiocese of Philadelphia announced that Father Joseph J. Gallagher and Father Mark S. Gaspar have been found unsuitable for ministry. The two were among the 21 priests placed on administrative leave after the release of a grand jury report in February 2011 on the handling of sex abuse complaints. The Archdiocese also ruled that a third priest, retired Monsignor Richard T. Powers, who was not listed in the 2011 grand jury report is unsuitable for ministry. The action was based on a substantiated allegation of sexual abuse of a minor that occurred 40 years ago outside the Archdiocese of Philadelphia. All the priests may appeal their removal to the Vatican. ABC News reports on the decisions which were made by Archbishop Charles Chaput.

Recent Articles of Interest

From SSRN:

• Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, (Yale Law Journal, Forthcoming).
• Jay Wexler, Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, with Reference to Patton Oswalt's Character 'Paul from Staten Island' in the Film Big Fan, (Boston University Law Review, 2013).
• Andrew J. Hull, Complete or Partial Accommodation: An Analysis of the Federal Circuit Split Over the Duty of the Employer to Reasonably Accommodate the Religious Beliefs of the Employee, (Regent University Law Review, Vol. 25, No. 1, 2012).
• Anthony C. Infanti, LGBT Families, Tax Nothings, (Journal of Gender, Race and Justice, Forthcoming).
• Geetanjali Srikantan, The Difficulties of Religious Pluralism in India: Analysing the Place of Worship as a Legal Category in the Ayodhya and Bababudangiri Disputes, (July 1, 2012).
• Ihsan Yilmaz, Towards a Muslim Secularism? An Islamic ‘Twin Tolerations’ Understanding of Religion in the Public Sphere, (Turkish Journal of Politics, Vol. 3, No. 2, Winter 2012).

From SmartCILP:

• Vincent J. Samar, Religion / State: Where the Separation Lies, 33 Northern Illinois University Law Review 1-64 (2012).
• Special Issue: The Authoriality of Religious Law. Guest Editor Massimo Leone; preface by Massimo Leone; articles by Julia J.A. Shaw, Michael Salter, David S. Caudill, Paolo Heritier, Ugo Volli, Shulamit Almog, Lotem Perry-Hazan and Massimo Leone. 26 International Journal for the Semiotics of Law 91-239 (2013).

Roundup of Recent Employment Discrimination Cases

Here is a roundup of recent developments in cases involving religious discrimination in employment:

The EEOC announced on April 4 that it has sued Bo-Cherry, Inc., a North Carolina corporation that operates several Bojangles' restaurants, charging failure to accommodate a Muslim job applicant's religious exercise, by requiring him to shave his beard rather than using a beard net.

In New York last week, a Muslim employee of the New York City Transit Authority who had worked for over ten years as a car cleaner filed a federal court lawsuit claiming that when he transferred to a different depot, he faced a campaign of hostility toward his religion and failure to accommodate his religious observances. Gothamist reports on the lawsuit. The complaint (full text) in Ahmed v. New York City Transit Authority, (ED NY, filed 4/3/2013) details interference with plaintiff's ability to attend Friday Jummah services, as well as other observances.

In Price v. Warrensville Heights City Schools, 2013 U.S. Dist. LEXIS 45552 (ND OH, March 29, 2013), an Ohio federal district court rejected a claim by a para-professional that the Warrensville Heights schools used insubordination charges as a pretext for terminating her, when their real reason was her refusal to join the principal's church and defendants belief that plaintiff's lesbian sexual orientation equated with her Pentecostal religious beliefs. The magistrate's decision in the case is at 2012 U.S. Dist. LEXIS 187333 (ND OH, May 3, 2012).

Recent Prisoner Free Exercise Cases

In Lewis v. Sternes, (7th Cir., March 28. 2013), the 7th Circuit affirmed an Illinois federal district court's rejection of a complaint by an inmate who was a member of the African Hebrew Israelites of Jerusalem. Plaintiff claimed that his free exercise rights were violated by authorities' insistence that he cut his dreadlocks because they pose a security risk.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court adopted only in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) in a claim by  a Rastafarian inmate that he was denied a religious diet. The court rejected a statute of limitations defense but dismissed the suit on qualified immunity grounds.

In Guillory v. Fischer, 2013 U.S. Dist. LEXIS 43986 (ND NY, March 28, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 43981, March 7, 2013) and permitted a Jewish inmate to move ahead with complaints that he was prevented from observing the Fast of Tammu and the festival of Sukkot.

In Crump v. Prelesnik, 2013 U.S. Dist. LEXIS 45126 (WD MI, March 29, 2013), a Michigan federal district court, agreeing with the conclusions of a federal magistrate judge (2013 U.S. Dist. LEXIS 46666, Feb. 13, 2013), and dismissed a Muslim inmate's complaint that he was not permitted to participate in Friday group prayer without signing the prison's form declaring he is a Muslim.

In Handy v. Diggins, 2013 U.S. Dist. LEXIS 45561 (D CO, March 29, 2013), a Colorado federal district court rejected in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 45542, Feb. 26, 2013) and permitted a Muslim inmate to proceed with his claim that his free exercise rights were infringed when prison authorities denied him a kosher diet.

In Thomas v. Lawler, 2013 U.S. Dist. LEXIS 44281 (MD PA, March 28, 2013), a Pennsylvania federal district court granted certain discovery requests by a physically disabled Muslim inmate who was suing claiming he is forced to climb five flights of stairs for Muslim worship in a chapel with insufficient space and without a restroom. The discovery requests granted were ones relating to past 1st Amendment violations by defendant prison authorities.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 41421 (WD VA, March 25, 2013), a Salafi Muslim inmate alleged dozens of infringement of his religious rights. A Virginia federal district court dismissed all of the claims except "his RLUIPA claims for injunctive and declaratory relief regarding the compact-disc policy, the prayer-oil policy (only as it relates to purchasing the oil from Keefe Commissary), the halal-diet policy, and the Salafism policy." The federal magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 187385, Dec. 26, 2012.

In Gambino v. Payne, 2013 U.S. Dist. LEXIS 46576 (WD NY, March 28, 2013), a New York federal district court dismissed, with leave to amend, a complaint by a Jewish inmate that, as a pre-trial detainee, his kosher meals were mutilated, smashed, shaken and contaminated with pubic hair on a daily basis.

In Jones v. Conrad, 2013 U.S. Dist. LEXIS 44534 (ED AR, March 28, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 44535, Feb. 15, 2013) and dismissed a complaint by an inmate that his rights were violated when he was denied swastika mail sent to him, and when he was denied a receipt of "Islam in History" because it was shipped in the same package as a prohibited book titled "Pornoland."

Court Denies TRO Against Contraceptive Coverage Mandate To Manufacturing Company

In MK Chambers Co. v. Department of Health and Human Services, (ED MI, April 3, 2013), a Michigan federal district court refused to issue an ex parte temporary restraining order to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a closely-held machinery components company and its two Catholic owners.  The court held that plaintiffs had not shown that they are likely to succeed either on their 1st Amendment or RFRA challenges.  As to RFRA, the court said:

Courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA.... At this stage of the proceedings, without benefit of Defendants' response, Plaintiffs have not shown that Plaintiffs will prevail under the RFRA.

Attorneys Raise Interesting Arguments Seeking Release of Amish Convicted of Hate Crimes

AP and the Cleveland Plain Dealer report on interesting attempts by lawyers to obtain release while their appeals are pending for Samuel Mullet and several of his Bergholz Amish followers who were convicted last year on hate crime charges for hair and beard cutting attacks on a rival group of Amish. (See prior posting.)  Attorneys claim that assigning the convicted Amish to prisons around the country, some 1,000 miles away from home, is cruel and unusual punishment.  Relatives of the convicted Amish, because of religious restrictions on means of travel, cannot fly to see them, and must hire drivers to visit them by automobile. The motions also argue that language in last year's Supreme court decision upholding Obamacare as a tax, but not as a regulation of commerce, casts doubt on the constitutionality of the hate crimes law as applied to this case where the interstate commerce nexus was that the clippers and scissors used in the attacks came from out of state. The motions also argue that the hate crime law was not intended to apply to disputes among a religious group's own members.

UPDATE: On April 9, Federal Judge Dan Polster denied Samuel Mullet's motion for release, ruling that he still poses a threat to his Amish community and that his appeal does not raise substantial questions of law. (AP).

Biden and Obama Speak At White House Easter Prayer Breakfast

Yesterday, President Obama and Vice President Biden marked the end of the Easter season with a White House Prayer Breakfast.  The White House has released the full text of their remarks. In introductory remarks, Vice President Biden said in part:

For me, the essence of my faith is tolerance:  not being judgmental about people of different faiths.  When I was in Rome a few weeks ago, Pope Francis spoke movingly in his homily about our commitments to each other, not just as people of faith, but, he went on to say, but as human beings.

President Obama then spoke, saying in part:

To all the pastors in the house, I hope you’ve enjoyed some well-deserved rest after a very busy Holy Week.  I see some chuckles, so maybe not.  (Laughter.)  Here at the White House, I’m pleased to say that we survived yet another Easter Egg Roll.  (Laughter.)

Now, if you’ve been to this breakfast before, you know that I always try to avoid preaching in front of people who do it for a living.  That's sound advice.  So this morning, I'm just going to leave the sermon to others and offer maybe a few remarks as we mark this -- the end of this Easter season.

In these sacred days, those of us as Christians remember the tremendous sacrifice Jesus made for each of us –- how, in all His humility and His grace, He took on the sins of the world and extended the gift of salvation.  And we recommit ourselves to following His example –- to loving the Lord our God with all our hearts and all our souls and with all our minds, and to loving our neighbors as ourselves. 

That’s the eternal spirit of Easter.  And this year, I had -- I think was particularly special for me because right before Easter I had a chance to feel that spirit during my trip to the Holy Land.  And I think so many of you here know there are few experiences more powerful or more humbling than visiting that sacred earth. 

NYC Reports 2 Infant Post-Circumcision Herpes Infections Despite New Regulations

Last September, New York City's Board of Health adopted a controversial rule that requires informed consent from a parent or guardian in a Jewish ritual circumcision where a mohel will use the controversial procedure known as metzitzah b’peh.  The procedure, whose use is limited to certain Orthodox Jewish ritual circumcisions, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. (See prior posting.) Nevertheless, according to ABC News yesterday, in the last 3 month, two infants in New York City's ultra-Orthodox community have been infected with herpes following their circumcision

Hundreds of Thousands of Bangladeshis Demonstrate For Blasphemy Law

In Bangladesh today, hundreds of thousands of protesters supporting the Islamist group Hefazat-e-Islam descended on the capital Dhaka in support of 13 demands by the group, including a call for enactment of a blasphemy law with a death penalty aimed at those the protesters call "atheist bloggers." As reported by Al Jazeera the protests are a reaction to trials and sentences imposed on leaders of the Jamaat-e-Islami party for crimes committed during the country's bloody 1971 Liberation War. Secularists staged a rival protest. The bloggers who are the targets of the call for a blasphemy law have pressed for imposition of the death sentence on those found guilty of war crimes during the country's war of liberation.

Milwaukee Archdiocese To Release Records On Handling Priest Sex Abuse

According to yesterday's Pierce County Herald, the Milwaukee Catholic Archdiocese has agreed, as part of its bankruptcy plan, to release records showing how it dealt over the last 40 years with priests accused of child sexual abuse. Some 3000 pages of documents will be released on July 1 on the Archdiocese website. In a Chapter 11 Update posted on the Archdiocese website,  Archbishop Listecki describes at length the documents that will be released and a summary of what they will reveal. The documents will include depositions of Archbishop Weakland, Bishop Sklba and Cardinal Dolan taken in the Chapter 11 bankruptcy proceeding. Archbishop Listecki said:

I believe sharing these documents publicly will finally bring to a close a criticism that the Church continues to hide or conceal information, or that there are “secret files” tucked away in our archives.  I can assure you, there are not.

The documents apparently do not deal with priests in religious orders or non-clergy church personnel accused of abusing children.

Juvenile Court May Order Immunization of Children In State Custody Over Religious Objections of Parents

In In re M.M., (OR App., April 3, 2013), the Oregon Court of Appeals upheld the authority of a juvenile court to order immunization of children who are wards of the court, even though the children's mother and father have religious objections to immunization.  At issue is a court order involving eight children (between 1 and 8 years old) taken from their parents and placed in custody of the Department of Human Services after the court found their conditions endangered their welfare. The court held that "nothing in the juvenile code provisions that authorize the juvenile court or a child's legal custodian or guardian to make health-care decisions for a child limits that authority by providing or recognizing a right of parents to exempt their children from immunization."  The court also concluded that "the order did not unlawfully infringe on parents' constitutional rights to direct the upbringing of their children." The Oregonian reports on the decision.

Pakistan Tests Islamic Knowledge of Legislative Candidates

Pakistan's Constitution, Art. 62, provides, among other things, that a person shall not be qualified to be a member of Parliament (Majlis-e-Shoora) unless "he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins." Yesterday's Wall Street Journal reports that for the first time election officials are enforcing this provision for candidates in the May 11 elections for the lower house of parliament and for four provincial legislatures. Individuals filing to be candidates are being asked to recite verses of the Qur'an or prayers. Their responses are being shown on television. In the country, 17,186 candidates are running for 849 contested legislative seats. Candidate screening is being carried out by judges temporarily working for the independent Election Commission. Candidates are being screened to see if they meet other constitutional requirements as well, such as being "of good character and ... not commonly known as one who violates Islamic Injunctions," and being "sagacious, righteous and non-profligate and honest and ameen."

UPDATE: On Friday evening, a Lahore High Court justice issued an order instructing election officials to "immediately refrain from asking random intrusive and inquisitive questions that have no nexus with information given in the nomination papers or do not arise from the objections raised by the other side."  (Zee News).

New Egyptian Law Will Permit Religious Slogans In Election Campaigns

Bloomberg News reports that on Wednesday, the upper house of Egypt's parliament-- the Islamist led Shura Council-- approved a new political rights law that drops the ban on religious slogans in election campaigns.  It instead replaces the ban with a prohibition of slogans involving "gender and religious discrimination." (The Shura council is the only branch of parliament functioning, since the courts shut down the lower chamber.)  Secularists and human rights groups are critical of the new law, saying it is an attempt by the Muslim Brotherhood to take the political battle in a religious direction. According to Xinhua, some analysts believe the Supreme Constitutional Court will strike down the law on the basis that Chap. I, Art. 6 of Egypt's Constitution prohibits political parties based on religion.

Classroom Exercise Using "Jesus" To Illustrate Cultural Symbols Leads To Threats Against Instructor and University

According to the Palm Beach Post, last week Florida Atlantic University placed a non-tenured Communications instructor on paid administrative leave for his own safety and to prevent further disruptions to the University's operations, after he and the Communication and Multimedia Studies Department received numerous threats over a textbook exercise that the instructor used in a Feb. 25 class. The instructor, Deandre Poole, who is also vice chairman of the Palm Beach County Democratic Party, was teaching a course in intercultural communications using a standard textbook, "Intercultural Communication: A Contextual Approach."  He took an exercise from the instructor's manual that accompanies the book. As described by the Palm Beach Post:

The manual, which warns that the exercise is “a bit sensitive,” says the teacher should have students write “Jesus” on a piece of paper, then put the paper on the floor and “think about it for a moment. After a brief period of silence, instruct them to step on the paper. Most will hesitate. Ask why they can’t step on the paper. Discuss the importance of symbols in culture.”

One student, Ryan Rotela, objected to the exercise, and after class shouted at Poole and threatened to go to the media.  Poole filed an incident report with campus security and the student was ordered not to attend class further until the issue was resolved.  Rotela then went to a local television station with the story, which quickly gained national attention. Poole, the University and the county Democratic Party have received threatening calls and hate mail, some of them racist. Subsequently disciplinary charges against the student were dropped and the University announced the exercise would not be used again. Nevertheless, a local pastor plans to lead a "Take A Stand For Jesus" march to the University.

Poole, who does not want his teaching career defined by this incident, describes himself as a very religious Christian.

Hopi Tribe Seeks To Stop Auction of Sacred Artifacts In France

The Hopi Indian Tribe of Arizona is enlisting the help of the U.S. government to try to stop an auction in Paris next week of $1 million worth of sacred Hopi artifacts.  According to the New York Times yesterday, the Hopi spiritual items are being sold by a collector who purchased them over a 30-year period in the United States. The Hopis have sent a letter of objection to the Néret-Minet auction house, citing a clause in the tribe's 1936 Constitution that they say demonstrates the items are "held under religious custody by the Hopi people." Even though international agreements allow foreign nations to enlist U.S. aid in retrieving their antiquities from the United States, the U.S. does not have reciprocal agreements covering U.S. artifacts abroad.

IRS Revokes Closed Hospital's "Church Plan" Ruling To Get Insurance For Retirees

The New York Times reported earlier this week on the unusual recent decision by the Internal Revenue Service to revoke its 2003 "church plan" designation for the employee retirement plan of Hospital Center of Orange. This allows the Pension Benefit Guaranty Corporation to pick up payments to retirees of the financially-troubled Catholic-affiliated New Jersey hospital that closed 8 years ago. The Times says that the hospital's problems:

underscores a wrinkle in the federal pension law, which some faith-based employers have used to save money, despite the risks. Churches and workplaces with religious affiliations have been able to avoid the complex and costly requirements of the federal pension law, known as Erisa, by obtaining an I.R.S. ruling that their pension plans were church plans.

The designation not only freed them from having to fund their workers’ benefits, it also meant they could stop paying insurance premiums to the government and receive refunds on their last six years’ worth of premiums.

Tough economic times, and pitches from benefits consultants, have prompted more than 100 faith-based employers to seek church plan status....

[Thanks to Ken Myers for the lead.] 

13 State AG's Urge Broader Conscience Exemptions From Contraceptive Coverage Mandate

The Attorneys General of 13 states last week submitted to the Department of Health and Human Services a joint letter (full text) commenting on the Department's proposed rules that attempt to accommodate objections raised by non-profit religious organizations to the scope of the Affordable Care Act contraceptive coverage mandate. The letter urges the federal government to extend to all religious-affiliated nonprofits the exception that is available to houses of worship. It also calls for creation of a meaningful exception to the mandate for for-profit business owners who object on conscience grounds. Christian Post reports on the letter.

North Carolina Legislators Propose Nullification Resolution In Response To County Prayer Policy Challenge

As previously reported, last month the ACLU of North Carolina filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer.  In response, on April 1 two members of the state House of Representatives from Rowan County (with 12 co-sponsors) introduced what amounts to a nullification resolution. HJR 494 (full text) provides (after a series of whereas clauses asserting states' rights theories):

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

AP and Huffington Post yesterday reported on the bill.

UPDATE: According to an April 4 report by WRAL, House Speaker Thom Tillis' office says the resolution is dead and will not be voted on.