Religious Groups Say Military's New Religious Accommodation Policy Falls Short

As previously reported, in January the Department of Defense adopted a revised policy on religious accommodation in the military, including on matters of appearance and grooming.  However, as explained by the ADL in a blog posting yesterday, many still feel that the new policy does not go far enough. In an April 2 letter to the Pentagon (full text) 21 major religious and civil rights organizations summarized their objections, stating in part:

As currently drafted, ... [the policy] would require religiously observant service members ... to remove their head coverings, cut their hair, or shave their beards ... while their request to accommodate these same religious practices is pending.... We urge you to reconsider this provision, which has the effect of forcing some religiously observant service members to make an impossible choice between their faith and their chosen profession.

Further, under ... [the policy] even if an original accommodation request is approved, religiously observant service members would be required to submit a new request for the same accommodation every time they receive a new assignment, “transfer of duty station, or other significant change in circumstances.” The uncertainty associated with this requirement to repeatedly request an accommodation for the very same religious practices is stifling, and may needlessly limit career opportunities – or, in some cases, end careers.

[Thanks to Michael Lieberman for the lead.]

11 French Towns Will Ban Schools From Serving Alternatives When Pork Is On The Menu

In local elections in France last week, the right-wing Front National party, led by  Marine Le Pen, won control of eleven local town councils.  According to RFI  and The Local, Le Pen told RTL Radio yesterday that those eleven towns will now ban their school cafeterias from providing Muslim and Jewish students menu alternatives when the school serves pork meals. She said: "We will not accept any religious requirements on school menus.  There is no reason for religion to enter into the public sphere, that's the law."

Federal Judge Announces He Will Strike Down Ohio's Refusal To Recognize Same-Sex Marriages From Elsewhere

The Cleveland Plain Dealer reports that at a Friday hearing in a Cincinnati, Ohio federal district court in Henry v. Wymyslo, Judge Timothy Black announced:

I intend to issue a written decision and order by April 14 striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states.

The advance announcement gives the state time to prepare an appeal that can be filed immediately after the ruling.  A spokesman for Ohio Attorney General Mike DeWine says that an appeal is planned. The lawsuit was filed by four same-sex married couples and originally sought narrower relief-- an order requiring the  names both same-sex spouses to be entered on the birth certificates of their children. (full text of complaint in Henry v. Wymyslo, (SD OH, filed 2/10/2014).

UN Rapporteur On Religious Freedom Issues Preliminary Findings On Kazakhstan

Yesterday, Heiner Bielefeld, United Nations Special Rapporteur on Freedom of Religion or Belief issued his Preliminary Findings as he ended his eleven day visit to the Republic of Kazakhstan. (Press release).  His report emphasized the religious pluralism in Kazakhstan, and recommended an end to mandatory registration of religious communities.  He said in part:

Non-registered communities must be able to operate free from discrimination and free from fear of intimidation. Thresholds for registration at different levels (local, regional and national) should be defined in such a way that minorities can fully operate throughout the country. The requirement of registering missionary activities as well as the practice of licensing the import and distribution of religious literature should also be generally overhauled.

8th Circuit Sends Suit Against Hebrew National Back To State Court

In Wallace v. ConAgra Foods, Inc., (8th Cir., April 4, 2014), the U.S. 8th Circuit Court of Appeals took an unexpected route in deciding the appeal in a lawsuit against the manufacturer of Hebrew National hot dogs.  A Minnesota federal district court had dismissed the suit by consumers who claimed that ConAgra misrepresented that Hebrew National products are made of "100% kosher beef" because ConAgra's standards for kosher slaughter were inadequate. The district court held that this posed a religious question that could not be decided by the civil courts. (See prior posting.)

The 8th Circuit, however, examined more closely the nature of plaintiffs' objections to ConAgra's kosher standards.  One part of the kosher certification process is the examination of the slaughtered cow's lungs. Certain defects in the lungs would render the entire carcass non-kosher. The allegations in the ConAgra lawsuit were that production pressures led to some carcasses that should have been rejected instead being marked as kosher.  The 8th Circuit concluded that even if this were true, no consumer would be able to identify whether the particular hot dogs he or she purchased were improperly certified. It went on:

Without any particularized reason to think the consumers’ own packages of Hebrew National beef actually exhibited the alleged non-kosher defect, the consumers lack Article III standing to sue ConAgra. Accepting the consumers’ various allegations, it remains entirely possible, maybe probable, that the packages of beef they personally purchased and consumed met the “strict” standards advertised by ConAgra..... [I]t is pure speculation to say the particular packages sold to the consumers were tainted by non-kosher beef, while it is quite plausible ConAgra sold the consumers exactly what was promised: a higher quality, kosher meat product. Time and again the Supreme Court has reminded lower courts that speculation and conjecture are not injuries cognizable under Article III.

However, instead of dismissing the case for lack of standing, the 8th Circuit ordered that the district court return it to the Minnesota state court where it originated before it was removed to federal court under the Class Action Fairness Act. Chicago Tribune reports on the decision.

Discrimination Against Gay Employee By Religious Supervisor States Title VII Religious Discrimination Claim

In Terveer v. Billington, (D DC, March 31, 2014), Peter Terveer, a former management analyst with the Library of Congress alleged religious discrimination, sex discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act. Terveer claimed, among other things, that he was denied a within-grade salary increase after his supervisor, a conservative Catholic, learned that Terveer was homosexual. The court said, in part, that Terveer claims:

he alleged facts showing that he was discriminated against because he failed to live up to his supervisor’s religious expectations. The Court agrees with Plaintiff. Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs."

Advocate reports on the decision.

Lawsuit Challenges Georgia's Scholarship Tax Credit Program

The Atlanta Journal Constitution reports that a lawsuit was filed yesterday by a group of parents challenging Georgia's student scholarship organization tax credit program.  The program allows individuals and corporations tax credits for contributions to organizations that in turn fund scholarships for private school students.  Among other things, the lawsuit-- backed by the Southern Education Foundation-- alleges that the program gives indirect funding to religious schools in violation of Georgia' constitution. The program has become so popular that this year the $58 million overall cap on tax credits allowed for the year was met in the first few weeks of the year.

Discriminatory Firing Claim Dismissed Under Ministerial Exception Doctrine

In Conlon v. Intervarsity Christian Fellowship/ USA, (WD MI, April 3, 2014), a Michigan federal district court applied the ministerial exception doctrine to dismiss a discrimination suit brought by a former spiritual director to Intervarsity Christian Fellowship staff members. Plaintiff Alyce Conlon, who was considering divorcing her husband, was placed on leave and ultimately fired under IVCF’s Separating and Divorcing Staff Policy. She claims that she was treated differently than male staff members who divorced their spouses. The court said in part:

Plaintiff’s suggestion that the ministerial exception applies only to those cases in which a court would be required to evaluate religious doctrine “misses the point of the ministerial exception,” which is not to “safeguard a church’s decision to fire a minister only when it is made for a religious reason.” Hosana-Tabor, 132 S. Ct. at 709. Rather, the exception “ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” Id. Thus, the ministerial exception prevents a court from evaluating the employment decisions of a religious organization regardless of whether the court would be required to delve into religious doctrine.

5th Circuit: Principal Enjoys Qualified Immunity In Adult Speech "Candy Cane" Case

In Morgan v. Swanson, (5th Cir., April 2, 2014), the U.S. 5th Circuit Court of Appeals upheld the district court's conclusion that a Plano, Texas elementary school principal enjoyed qualified immunity in a suit for damages.  In this aspect of the 9-year old litigation, a student's father complained that the principal did not permit him to distribute candy canes with a religious message attached to other adults at his son's in-class winter party.  In a per curiam opinion, plus two concurrences, the court held that the right asserted by the father was not "clearly established". The court said:

A plaintiff does not overcome the qualified immunity defense by alleging the violation of a right that is only defined “at a high level of generality.”... Instead, there must exist a clearly established “particular right” such that the official had “fair notice” of that right and its concomitant legal obligations

In a prior elaborate decision (see prior posting), the 5th Circuit en banc held that even though the principal's actions were unconstitutional, she enjoyed qualified immunity as to claims that the student should have been permitted to hand out the candy canes to his classmates.

UPDATE: On June 3, 2014, the 5th Circuit filed a substituted opinion (full text) in the case modifying some of its language describing the test for qualified immunity. The quote in this posting was unchanged in the substituted opinion.

2nd Circuit: No Free Exercise Problem In Denying School Space For Church Worship Services

In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., April 3, 2014), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, reversed the district court and held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. Board policy permits outside groups to use school space for other purposes during non-school hours merely for the cost of custodial services. The majority held that strict scrutiny is not required when the Board acts in order to avoid the risk of violating the Establishment Clause. It concluded that:

the better rule allows the Board, if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of  the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.

The majority also concluded that the Board's policy does not require it to become unconstitutionally entangled with religion in deciding what constitutes religious worship.

Judge Walker dissented, arguing that strict scrutiny should apply because the Board regulation "is neither neutral nor generally applicable in its treatment of religion." He concludes that the Board does not have a compelling interest in avoiding an Establishment Clause violation because it is clear that allowing churches to use facilities on the same neutral basis as others does not violate the Establishment Clause.

The decision is the latest in the long-running battle over church use of school space on Sundays. The 2nd Circuit in a previous decision upheld the Board's rule change against a free expression challenge. (See prior posting.) The Wall Street Journal reports that lawyers for Bronx Household of Faith plan an appeal, but that remarks by Mayor Bill DeBlasio suggest that he might be willing to change the Board policy adopted under the predecessor administration.

House Committee Holds Hearing On Persecution of Religious Communities In Vietnam

A video is now available online of the March 26 hearing by the U.S. House Foreign Affairs Committee's Tom Lantos Human Rights Commission on  Persecution of Religious and Indigenous Communities in Vietnam. The hearing Witness List included USCIRF Commissioner Eric P. Schwartz (written testimony), Father Phan Van Loi (Co-Founder of the Association of Former Vietnamese Prisoners of Conscience), Sub-dignitary Nguyen Bach Phung (Clergy member of an independent Cao Dai Sect); Yunie Hong (Director of Policy Advocacy, Hmong National Development), and Rong Nay (Executive Director, Montagnard Human Rights Organization).

ADL Releases 2013 Annual Audit of Anti-Semitic Incidents

In a press release this week, the ADL announced the release of its Annual Audit of Anti-Semitic Incidents. The audit found 751 incidents across the U.S. during 2013. (State-by-state totals.) This is a 19% decrease from the prior year. Of the 751 incidents, 405 involved harassment, 315 involved vandalism and 31 involved assaults.

Mississippi Legislature Passes Religious Freedom Restoration Act

On Tuesday, the Mississippi legislature gave final passage to SB 2681, the  Mississippi Religious Freedom Restoration Act after a Conference Committee took out some of the language that civil rights groups found objectionable. The final version of the bill passed the Senate by a vote of 37-14, and the House by a vote of 79-43. The bill now goes to Gov. Phil Bryant who, Reuters reports, will sign the bill. As passed, the bill requires state and local governments to demonstrate that they are using the least restrictive means to further a compelling governmental interest before they may substantially burden religious exercise. Opponents of the bill argued that it could permit discrimination against gays and lesbian on religious grounds. Another portion of the bill adds the phrase "In God We Trust" to the Mississippi seal.

Negligence In Identifying Son's Body Did Not Deprive Mother of Free Exercise Rights

In Simkova v. City of Newark, (D NJ, March 31, 2014), a New Jersey federal district court dismissed free exercise and due process claims against the city, police officials, the state medical examiner and others. The court described the facts as follows:

In January 2012, plaintiff Zdenka Simkova ... learned that her son, Michael ... who went missing in 2007 over the Thanksgiving holidays and had never been located—had died years earlier and was buried in a mass grave in Hackensack. She filed a federal lawsuit detailing both the resistance she faced after she reported him missing within days after he failed to show up at her house and the misinformation she received from official sources..... Simkova alleged that the defendants failed to follow proper procedures for the identification and investigation of missing persons—a result, in part, of the municipal defendants’ policies and their failure to train their employees—thereby depriving her of her right to possess her son’s body and to bury him in accordance with her religion.

In rejecting plaintiff's free exercise claim, the court emphasized that plaintiff had not alleged defendants were aware of her religious concerns, or had any idea that their actions might affect her religious practice.

Contempt Motion Filed Against County Commission For Christian Prayers

The American Humanist Association announced that yesterday it filed a contempt of court motion (full text) against members of the Carroll County, Maryland Board of Commissioners for violating a court order (see prior posting) barring them from using specific Christian references in Council invocations.  One day after the entry of the injunction, Council member Robin Frazier delivered an explicitly Christian invocation and expressed objections to the court order. Then on Tuesday, the Board invited Bruce Holstein (reportedly the campaign manager of one of the Commissioners) to speak. He read a statement and offered a prayer harshly critical of the judge's decision, saying in part:

The judge may have prevented you commissioners from praying to Jesus Christ, but I want you to know that we, the citizens of Carroll County, are not gonna stand for it.

We are overruling Judge Quarles’ objection by offering this prayer on your behalf: Heavenly father, I stand here this morning and ask your blessing on our five county commissioners.... They have received a court Order from a misguided judge who forbids them from praying in the name of your son, Jesus Christ. This Order discriminates against Christians and is a gross violation of our commissioners’ First Amendment Constitutional rights. Therefore I ask you to bless their proceedings today and bless the case about Christian prayer before the Supreme Court and I ask for these blessings in Jesus’ name. Amen.

While the court's injunction ran against the Board members, plaintiff in its Memorandum of Law (full text) argues that it also bars the prayer delivered by Holstein:

There is no question the Defendants had the authority to stop this person from delivering a prayer at their Board meeting. They also had the ability clarify to the public, after the prayer was delivered, that it was not endorsed or supported by the Board.

The full text of the statements and prayers by both Commr. Frazier and Mr. Holstein are included in the Memorandum of Law.

Israel's Supreme Court Rules That Original Austrian Jewish Historical Documents Should Stay In Israel

Haaretz reports that a 3-judge panel of Israel's Supreme Court yesterday handed down a decision in a suit by the Jewish community in Vienna, Austria seeking return from Israel's  Central Archives for the History of the Jewish People of thousands of historical documents deposited there after World War II to keep them safe.  The Austrians claim that the documents, which trace the community's history, were only on loan and should be returned now that a Jewish museum is being built in Vienna. The Jerusalem archives claims that the materials were given to them in perpetuity.  The Supreme Court urged the two sides to come to an agreement that would result in the original documents remaining in Israel, with a digital copy going back to Vienna and some of the original documents being sent on loan to the Museum of the Jewish Community in Vienna once it is completed.

Canadian Court Certifies Class Action Against Anglican Boarding School For Abuse of Students

In Cavanaugh v. Grenville Christian College, (ON Super Ct, Feb. 24, 2014), a Superior Court in the Canadian province of Ontario certified for class action status a lawsuit by former students of an Anglican boarding school, Grenville Christian College, located in Brockville, Ontario. The suit alleges breach of fiduciary duty, negligence, assault, battery and intentional infliction of mental suffering. According  to the court:

The appellants allege that they were subjected to various forms of physical and psychological abuse at the hands of Grenville staff.... They allege that the abuse was systemic and pervasive. In particular, they plead that “the conduct of the defendants … was part of a systemic campaign by the defendants, Fathers Haig and Farnsworth and the school to promote and indoctrinate students in the teachings and practices of the Community of Jesus.” The Community of Jesus is a Christian organization based in Orleans, Massachusetts, which the appellants characterize as a religious cult whose teachings and practices were intolerant and fanatical.

Mondaq reports on the decision.

Investigative Report Criticizes IRS Classifying Televangelists as Churches

NPR yesterday published a lengthy investigative report on the lack of financial transparency of television evangelists because the Internal Revenue Service is willing to categorize many of them as churches rather than non-profit religious organizations.  Churches are not required to file Form 990 that provides annual disclosure of finances. The report focuses particularly on Daystar Television, one of the three largest religious television networks. Illustrating financial concerns that might be revealed if televangelists had to file Form 990, the report said in part:

Daystar's primary revenue comes from selling airtime to other religious programmers. Its secondary income is donations.... [B]etween 2005 and 2011, Daystar took in $208 million in tax-deductable contributions from viewers through on-air pitches. Daystar has built a public image as a generous giver to charitable causes. Indeed, the network has contributed millions of dollars to a trauma center and a home for Holocaust survivors in Israel, a hospital in Calcutta, and to ministries that support women in Moldova and children in Uganda....

NPR analyzed six years of Daystar balance sheets. They show the network gave away $9.7 million dollars in direct grants to outside recipients. Not $30 million [which its founder has claimed]. That works out to charitable giving of about 5 percent of donor revenue.

NY Jewish Group Can Proceed With Challenge To Validity of Mortgage Because Court Approval Was Required

Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., (SD NY, March 30, 2014) is a 61-page opinion growing out of a suit by an Orthodox Jewish religious group that encountered hurdles in its attempt to build an adult religious studies Kollel building along with family housing for Kollel students on a parcel of land in Ramapo, New York.  The events are part of the tension in recent years over the movement of increasing numbers of Orthodox and Hasidic Jewish families to Ramapo and areas around it in Rockland County. (See prior posting.)

Originally the Kollel project was financed by RBS Citizens, but it sold the note and mortgage to Avon which eventually foreclosed on the mortgage.  Among the 17 causes of action against three groups of defendants is a claim that the foreclosure was commenced because a principal of Avon, Abraham Grunwald, disapproved of the religious lifestyle and education of the Mosdos Kollel students and wanted to close down the Kollel and replace it with an institution consistent with Grunwald’s own religious values. The complaint also alleges that an agent of Avon and Grunwald  engaged in a campaign to injure Mosdos by calling its students to tell them that the school would be shut down, and urging donors not to donate because the school is not viable.

The court dismissed abuse of process and slander claims against the Avon defendants.  But it did allow Mosdos to move forward with its claim that the mortgage agreement that was foreclosed upon is invalid because under Sec. 12(1)  of New York's Religious Corporation Law the mortgage requires prior court approval. (See prior related posting.)

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]