Zoning Denial For Catholic School Athletic Field Lighting Violates RLUIPA

In Corporation of the Catholic Archbishop of Seattle v. City of Seattle, WD WA, June 20, 2014), a Washington federal district court held that requiring a Catholic High School to obtain a zoning variance in order to install 70-foot tall light poles in its athletic field violates the "equal terms" provision of RLUIPA. The variance, which was denied, is required because of the 30-foot height requirement for structures in residential zones. The city exempts public school athletic fields from the height requirement. [Thanks to Eric Treene for the lead.]

Congress Passes World War II Memorial Prayer Act

Congress this week gave final approval and sent to the President for his signature S. 1044, the World War II Memorial Prayer Act. The Act calls for an addition to the World War II Memorial in Washington, D.C.  A plaque or inscription containing the words of the prayer that President Franklin Roosevelt delivered on D-Day is to be  installed-- using only private contributions to pay for it. According to the Columbus Dispatch last week, the ACLU calls the law needlessly divisive.

Court Decides Dispute Over Proceeds From Sale of Church Property

In Pacific Southwest District of the Church of the Brethren v. Church of the Brethren, Inc., (CA App., June 23, 2014), a California appeals court dealt with a dispute over sharing of the proceeds from the sale of church property.  The court summarized its holding:

Pacific Southwest District of the Church of the Brethren (PSWD) ... appeal from a judgment in favor of respondents Central Korean Evangelical Church (CKEC) and its pastor Jang Kyun Park. The judgment gave CKEC an 86-percent share and gave PSWD a 14-percent share in the proceeds from any sale of CKEC’s real property, which consists of three lots in the Koreatown neighborhood of Los Angeles. Appellants argue CKEC holds the property in trust for the Church of the Brethren. We conclude that PSWD is estopped from asserting a trust over the entire property because CKEC joined the denomination on assurances by church representatives that a trust would not apply to property it owned at the time of affiliation, and at that time it already owned two of the three lots. We also conclude that PSWD may assert a trust over the after-acquired third lot. We affirm the judgment to the extent it ordered partition of the property by sale, but reverse and remand for a redetermination of each party’s share in the proceeds from any sale.

Jury Service Does Not Violate Free Exercise Rights

In Bey v. City of Philadelphia, (ED PA, June 17, 2014), plaintiff sued unsuccessfully for $2 million in damages after the city's Jury Selection Commission denied him an exemption from jury duty which he sought because of his religious beliefs and political views. The court concluded that his free exercise claim is legally frivolous because the state's jury service laws are neutral and generally applicable, and are clearly related to the legitimate objective of maintaining a jury system.

Recent Prisoner Free Exercise Cases

In Powers v. Coleman, 2014 U.S. App. LEXIS 11667 (7th Cir., June 20, 2014), the 7th Circuit refused to overturn a jury's verdict that a Messianic Jewish inmate did not have a sincere religious belief that he needed a kosher diet.

In Sharrieff v. Moore, 2014 U.S. Dist. LEXIS 82460 (MD PA, June 16, 2014), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies a complaint seeking separate religious services and a separate fast during December for Nation of Islam inmates.

In Oliver v. Adams, 2014 U.S. Dist. LEXIS 80519 (ED CA, June 10, 2014), a California federal magistrate judge dismissed, with leave to amend, a complaint by an inmate who is an adherent of Shetaut Neter who claims he is being denied a prayer rug, a religious diet, worship services, and religious programming on in-house television while he is in the special housing unit.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 81780 (D HI, June 13, 2014), a Hawaii federal district court in a very long opinion dealt with claims by Native Hawaiian inmates housed at private prisons in Arizona that their free exercise, RLUIPA and equal protection rights are being infringed as to their daily worship practices, the observance of Makahiki, and access to sacred items, sacred space and a spiritual advisor. The court held that there are genuine issues of fact remaining as to various of the claims.

In Adkins v. Shinn, 2014 U.S. Dist. LEXIS 81953 (D HI, June 16, 2014), a Hawaii federal district court dismissed a Muslim inmate's complaints about lack of visits from an Imam an difficulty in obtaining a Qur'an, other books and a kufi. However the court permitted him to proceed on his complaint that a kosher diet was substituted for his halal diet.

Pregnancy Service Center Signage Requirement Held Void-For-Vagueness

In Austin LifeCare, Inc. v. City of Austin, (WD TX, June 23, 2014), a Texas federal district court struck down as void for vagueness an Austin, Texas ordinance that requires unlicensed pregnancy service centers that do not have full-time licensed health care providers on site to post signs to indicate whether the center provides medical services and if the services are provided under supervision of a licensed health care provider. The ordinance covers centers that offer pregnancy testing or perform sonograms and then offer options counseling. The court concluded that neither "full time" nor "medical services" is adequately defined in the ordinance. Austin American-Statesman reports on the decision.

Sudanese Appeals Court Overturns Apostasy Death Sentence of Christian Woman

In a case that has attracted widespread international attention, an appeals court in Sudan has ordered the release of Meriam Ibrahim who had been sentenced to death for apostasy. Mail Online reports that a Khartoun appeals court overturned the death sentence of the 27-year old woman who was charged with converting from Islam to Christianity.  Ibrahim's father was Muslim, but her mother was Christian and she was raised as a Christian. It is unclear whether Ibrahim's sentence of 100 lashes for adultery-- because of her marriage to her Christian husband-- also was reversed.  (See prior posting.) Ibrahim's lawyers will meet with U.S. Embassy officials today to discuss possible asylum for her in the United States. Her Christian husband is an American citizen.

3rd Circuit: No Statute of Limitations For Establishment Clause Challenge To Still-Existing Display

In Tearpock-Martini v. Borough of Shickshinny, (3d Cir., June 23, 2014), the U.S. 3rd Circuit Court of Appeals held that Establishment Clause claims challenging still-existing religious displays are not subject to a statute of limitations defense. At issue was a directional sign on municipal property in a Pennsylvania town pointing the way to a local Baptist church. The sign included a depiction of a cross and a Bible. The court concluded that while the "continuing violation" doctrine does not apply to the display, nevertheless "strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display."

Inter-School Athletic Eligibility Rules Do Not Violate Free Exercise Rights of Home-School Family

In Chapman v. Pennsylvania Interscholastic Athletic Association, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected a claim by the parent of a home-schooled student that rules on eligibility to participate in inter-school athletics violate her free exercise rights, as well as her equal protection rights and the right to direct the education of her son.  At issue is a rule that allows home-schooled students to participate only on teams of their local public school, and not on a parochial school team.  Plaintiff claimed that the rule prevented "the home-schooler who is committed to play in a God-centered environment" from doing so. The court found that the rule is neutral and generally applicable so that it need only satisfy the "rational basis" test, and that any burden on religious exercise is minimal.

Another Diocese's Charities Get Preliminary Injunction Against Contraceptive Mandate Compromise

In Brandt v. Burwell, (WD PA, June 20, 2014), a Pennsylvania federal district court granted a preliminary injunction against applying the Affordable Care Act contraceptive coverage accommodation to charitable and educational affiliates of the Greensburg, Pennsylvania diocese.  The court found that the accommodation imposes a substantial burden on free exercise in violation of the Religious Freedom Restoration Act.  In doing so, the court relied on its earlier decisions on the same issue in Persico v. Sebelius (see prior posting) and Zubik v. Sebelius (see prior posting). The Legal Intelligencer reports on the decision.

SCOTUS Securities Law Decision Involves Charitable Fund That Supports Milwaukee Archdiocese

Today the U.S. Supreme Court decided Halliburton Co. v. Erica P. John Fund, Inc., (S. Ct., June 23, 2014) largely rejecting attempts by a corporate defendant to make securities fraud class actions by investors more difficult to pursue. The corporation was unsuccessful in urging the court to overturn the so-called "fraud on the market" theory that creates a rebuttable presumption that investors relied on public misstatements. The 6-3 decision did give a small concession to defendants, allowing them to present certain rebuttal evidence as the class certification stage. The victory for plaintiffs has implications for the Catholic Archdiocese of Milwaukee. Lead plaintiff in the case is a charitable fund that has been an important source of funds-- some $600,000 per year-- for the Archdiocese.  Prior to 2009, the Fund was known as the Archdiocese of Milwaukee Supporting Fund. (See prior posting.) The Milwaukee Archdiocese is in the midst of a bankruptcy reorganization. (See prior posting.)

Malaysia's Top Court Denies Leave To Appeal Ban On Catholic Paper's Use of "Allah"

AstroAwani , MSN News  and AlJazeera all report on today's decision by Malaysia's highest court to refuse leave to appeal in a widely followed religious freedom case.  By a vote of 4-3, Malaysia's Federal Court denied an application by the Catholic Church for leave to appeal a Court of Appeals decision that barred the Catholic newspaper, The Herald, from using the term "Allah" in its Malay language edition to refer to God. (See prior posting.)  "Allah" has been widely used by Christians in Sabah and Sarawak to refer to God. However the government argues that its use in non-Muslim literature may confuse Muslims and lead them to convert.

Recent Articles of Interest

From  SSRN:

• Howard Kislowicz, Faithful Translations? Cross-Cultural Communications in Canadian Religious Freedom Litigation, (Osgoode Hall Law Journal, 52(1), 2014 Forthcoming).
• Sylvie Langlaude, Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR., ((2014) 9(1) Religion and Human Rights: An International Journal 1-30).
• Aaron R. Petty, 'Faith, However Defined': Reassessing JFS and the Judicial Conception of 'Religion', (6 Elon Law Review 117 (2014)).
• Ilan Fuchs & Aviad Yehiel Hollander, National Movements and International Law: Rabbi Shlomo Goren's Understanding of International Law, (Journal of Law and Religion, Forthcoming).
• Faisal Kutty, Islamic Law and Adoptions, (Forthcoming in Robert L. Ballard et al., The Intercountry Adoption Debate: Dialogues Across Disciplines (Newcastle upon Tyne, UK: Cambridge Scholars Publishing, 2014)).

From SmartCILP and elsewhere:

• K. Benson, The Chaplaincy Exception In International Humanitarian Law: "American-Born Cleric" Anwar al-Awlaki and the Global War on Terror, 20 Buffalo Human Rights Law Review 1-36 (2013-2014).
• Charles J. Russo, Religious Freedom in the United States: "When You Come To a Fork In the Road, Take It", 38 University of Dayton Law Review 363-400 (2013).
• Jennifer B. Scheu, A First Amendment Objection To the Affordable Care Act's Individual Mandate, 79 Brooklyn Law Review 953-984 (2014).
• Mark Strasser, Conscience Clauses and the Placement of Children, 15 Journal of Law & Family Studies 1-18 (2013).
• Lisa A. Runquist & David T. Ball, Whither the Parsonage Allowance?  Will It Survive the Most Recent Attack?, Business Law Today (June 2014).

Australia's Top Court Invalidates Federal Spending For School Chaplaincy Programs

In Williams v. Commonwealth of Australia, (High Ct. of Australia, June 19, 2014), Australia's highest court held that Australia's Parliament exceeded the powers given to the national government when it provided funds for chaplaincy services in public schools run by the states. The suit was brought by an atheist parent who objected to his son learning gospel songs in school.  AP reports on the decision, suggesting that the chaplaincy program could be constitutionally funded by providing grants to the states for the program. It quotes Sydney University constitutional lawyer Anne Twomey:

They could have always done this stuff through the states under grants; they chose to do these things by direct methods and one of the reasons they did that in the past was to get directly the political kudos that come from it.... The chaplaincy program was all about getting direct political support from religious lobby groups....

A Court press release also summarizes the decision. [Thanks to Scott Mange for the lead.]

Mormon Church Sues Canadian Sect Leader Over Name Misappropriation

The Vancouver Sun and Reuters reported last week that the Church of Jesus Christ of Latter Day Saints (the mainline Mormon Church) has filed suit against Winston Blackmore, leader of a polygamous Mormon sect headquartered in Bountiful, British Columbia for misappropriation of the trademarked name, identity and reputation of the mainline Church.  Blackmore, who headed the Canadian branch of the FLDS until he was excommunicated by leader Warren Jeffs, founded his own sect with followers comprised mostly of his extended family in British Columbia, Idaho, Utah and Arizona, and initially incorporated it as the Fundamentalist Church of Jesus Christ of Latter Day Saints. However he changed it in 2010 to eliminate the word "Fundamentalist."  The mainline church discovered this in January when, after changing the form of its Canadian branch from an Alberta trust to a corporation, it tried to register its name in British Columbia and had its application rejected.  Its filings in the B.C. Supreme Court indicate that the confusion has led to diversion of contributions intended for the mainline Church.

Recent Prisoner Free Exercise Cases

In Abdul-Aziz v. Ricci, (3d Cir, June 16, 2014), the 3rd Circuit affirmed the dismissal of a Muslim inmate's complaint that Muslim inmates were served vegetarian meals while donated meals with Halal meat were refused, and that he was not permitted to have prayer oil in his cell. Dismissal of his complaints of retaliation were also affirmed.

In Cotton v. Cate, (9th Cir., June 16, 2014), the 9th Circuit reversed the dismissal of a Shetaut Neter inmate's RLUIPA claim for a Kemetic diet, holding that the government had not adequately shown there was not a less restrictive alternative to denying plaintiff's food request.

In Ali v. Wingert, (10th Cir., June 19, 2014), the 10th Circuit affirmed the dismissal of a Muslim inmate's complaint that he had problems with his mail being processed when it contained only his religious name without also including his committed name.

In Stigler-El v. Stilwell, 2014 U.S. Dist. LEXIS 79939 (SD IN, June 11, 2014), an Indiana federal district court dismissed an inmate's claim of discrimination against his Moorish precepts of Islamism, but with leave to show why judgment should not issue.

In Alexander v. Michigan, 2014 U.S. Dist. LEXIS 79271 (WD MI, June 11, 2014), a Michigan federal district court, although dismissing a number of defendants on immunity grounds, permitted an inmate to proceed against the warden, the chaplain and the state on his complaint that authorities refused to recognize separately and accommodate the practices of the Ismaili branch of the Moorish Science Temple.

In Oram v. Linderman, 2014 U.S. Dist. LEXIS 78836 (D AZ, June 9, 2014),an Arizona federal district court dismissed complaints of an inmate who is a gentile practitioner of Torah Observant Messianic Judaism that weekly religious services are limited to 60 minutes (instead of the 3 hours he requested) and that there are limits on the size of prayer shawls.

In West v. Grams, 2014 U.S. Dist. LEXIS 82030 (WD WI, June 16, 2014), a Wisconsin federal magistrate judge amended his former order that improperly dismissed a Muslim inmate's RLUIPA claim for injunctive relief on qualified immunity grounds, and instead dismissed it on mootness grounds because plaintiff has been transferred to a new prison. The underlying claim related to availability of religious services and alleged retaliation.

In Desmond v. Phelps, 2014 U.S. Dist. LEXIS 81874 (D DE, June 16, 2014), a Delaware federal district court denied a motion for injunctive relief by inmates who claimed discrimination against Catholics in access to religious services, religious leaders and accommodation of various religious practices after certain Catholic volunteers were banned from the facility.

In Evans v. Godinez, 2014 IL App (4th) 130686-U (IL App., June 18, 2014), an Illinois state appellate court upheld a prison's refusal to provide study groups and prayer services for Nation of Islam inmates.

NYT Details Plight of Christian Convert In Afghanistan

The New York Times yesterday reported at length on the plight in Afghanistan of a Muslim convert to Christianity (identified only as "Josef") who is in hiding as his brother-in-law and uncles are seeking to find him and kill him for apostasy. More generally, according to the report:

In official eyes here, there are no Afghan Christians. The few Afghans who practice the faith do so in private for fear of persecution, attending one of a handful of underground churches that are believed to be operating in the country. Expatriates use chapels on embassy grounds, but those are effectively inaccessible to Afghans.

Only a few Afghan converts have surfaced in the past decade, and the government has typically dealt with them swiftly and silently: They are asked to recant, and if they refuse, they are expelled, usually to India, where an Afghan church flourishes in New Delhi....

That leaves Josef almost nowhere to turn for protection. The police would be no help. Converts report being beaten and sexually abused while in custody.

Split Developing In Ukrainian Greek Catholic Church

The New York Times posted an article yesterday titled Ukrainian Church Faces Obscure Pro-Russia Revolt in Its Own Ranks, detailing an "obscure pro-Moscow revolt" faced by the Ukrainian Greek Catholic Church from some of its own clergy.  While the Ukrainian Orthodox Church has already split between its Kyvian and Moscow Patriarchates, now the previously unified Ukrainian Greek Catholic Church faces a possible split:

As with other fundamentalist groups that have split from long-established churches..., the breakaway Ukrainian outfit is obsessed with homosexuality and with preventing any tolerance of what it views as a grave sin. But theological issues, its critics say, mask a geopolitical agenda that puts it firmly on the side of Russia in opposition to Ukraine’s drawing closer to the Europe.

Christian College Wins Preliminary Injunction Against ACA Contraceptive Coverage Mandate

In Colorado Christian University v. Sebelius, (D CO, June 20, 2014), a Colorado federal district court granted a preliminary injunction preventing enforcement against a Christian liberal arts university of the Affordable Care Act contraception  coverage mandate compromise as it applies to coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg.  The court concluded that completion of the exemption form that results in coverage directly by the health plan's third-party administrator imposes a substantial burden on the school's religious exercise.  The court said in part:

Any myopic focus on the brevity of the Exemption Form and its ease of completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant. The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via the Exemption Form from CCU to the TPA or another entity. Such legal legerdemain does not expiate the morally unacceptable means or end. Such a compelled concession by an ostensibly innocuous legal prophylactic does not ameliorate the ignominy of the moral obliquity created by the participation in the process.

Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. It is the offer that is morally offensive regardless of the extent of its acceptance.

Becket Fund issued a press release announcing the decision.

Republican Politicians Address Evangelical Christian Conference

Today was the final day of the 3-day Faith and Freedom Coalition 2014 Conference in Washington D.C.. According to Huffington Post, the conference was attended by over 1000 Christian evangelical leaders who were addressed by major Republican leaders.  Videos of the remarks of a number of the speakers are available: Luncheon Speakers (Senators Mike Lee (R-UT), Marco Rubio (R-FL) and Ted Cruz (R-TX)); Representative Kevin McCarthy (R-CA); Representative Tom Price (R-GA); Representative Louie Gohmert (R-TX); Senator Mitch McConnell (R-KY);  Representative Steve King (R-IA); Senator Rand Paul (R-KY); Ralph Reed ; Rick Santorum; Michele Bachman (R-MN); Governor Chris Christie (R-NJ) ; Herman Cain.