Another Controversy Over Religious Symbols and Public Schools

Two elementary schools in Midlothian, Texas are the latest focus of controversy over religious symbols on public property. As reported by today by Courthouse News Service, the plaques, featuring two crosses, read: "Dedicated in the Year of Our Lord 1997 to the Education of God's Children and to their Faithful Teachers in the Name of the Holy Christian Church." Freedom From Religion Foundation complained about the plaques two months ago. The Dallas Observer yesterday reported on what happened next:

The district, advised by its attorneys that it would lose any lawsuit regarding the plaques, covered them with duct tape and prepared for their being replaced as the new school year began. Wednesday, the district posted a notice on its website that the plaques had been uncovered, but the district was "unsure who uncovered them" and had "no plans to recover them."

Meanwhile each side is marshalling its arguments. FFRF says:

Public schools may not advance, prefer, or promote religion. The plaque on the front of Mt. Peak Elementary violates this basic constitutional prohibition by creating the appearance that the school, and by extension the district, prefer religion to nonreligion and Christianity to all other religions.

Liberty Institute responds:

Our preliminary investigation of the Midlothian plaque issue leads us to believe the school district created a limited public forum for plaques relating to the topic of the building dedication.  The plaque at issue is thus private speech and the First Amendment prohibits the government from censoring private speech simply because of its religious viewpoint.

And media headlines fan the controversy, such as this one from Christian News: "Texas School District Duct Tapes Over Plaques Glorifying God Following Atheist Complaint."

Recent Prisoner Free Exercise Cases

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 113266 (D NJ, Aug. 15, 2014), a New Jersey federal district court reaffirmed its prior holding that an inmate, who variously claimed his relgion as Muslim or Jewish, did not have his ability to practice his religion affected by his inability to have his beard at the prison's kitchen.

In Fields v. Martin, 2014 U.S. Dist. LEXIS 114224 (ED MI, Aut.18, 2014), a Michigan federal district court accepted a magistrate's report and rejected an inmate's claim that his Buddhist religion required him to have a vegan diet.

In Nelson v. Jackson, 2014 U.S. Dist. LEXIS 115111 (SD OH, Aug. 19, 2014), an Ohio federal magistrate judge recommended rejecting a Jewish inmate's complaint that he was served meat and dairy products during the same meal and was required to cook or reheat his kosher meals in a microwave on the Sabbath.

In Mason v. Clear Creek County, 2014 U.S. Dist. LEXIS 115840 (D CO, Aug. 20, 2014), a Colorado district court, while dismissing a number of claims unrelated to prison conditions, permitted a Messianic Hebrew inmate to proceed with his claim that he was denied a religious diet and subjected to religious persecution.

In Hardy v. Agee, 2014 U.S. Dist. LEXIS 115488 (WD MI, Aug. 20, 2014), a Michigan federal district court dismissed a complaint by a Muslim inmate that because of his refusal to take a job in the kitchen he was placed on room restriction and was prevented from attending Islamic services and classes.

In Chau v. Young, 2014 U.S. Dist. LEXIS 116252 (ND CA, Aug. 20, 2014), a California federal district court dismissed a complaint by a Muslim inmate that a "modified program" imposed after a prison riot prevented his participation in Friday prayers, Islamic study classes and Ramadan observance with other inmates.

In Hunter v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 116156 (SD GA, Aug. 20, 2014), a Georgia federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that he was coerced into participating in a Christian faith-based program.

In Annabel v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 116440 (WD MI, Aug. 21, 2014), a Michigan federal district court rejected an inmate's claim that his free exercise rights were infringed when correctional officers mocked his Judaic Christian religion. It also rejected his claim that he was rataliated against for settling a lawsuit granting him a kosher diet.

Bolivian Evangelical Group Sues To Challenge New Rules Imposed On Religious Groups

In Bolivia last month, the National Association of Evangelicals of Bolivia filed a Petition of Unconsitutionality with the country's Constitutional Tribunal challenging new provisions regulating churches. The Protestant group is challenging Law 351 ("Granting of Juridical Personality to Churches and Religious Groups") passed in March 2013 and Supreme Decree 1987 implementing the law. The petition argues that various provisions of the law violate Art. 4 of the country's constitution protecting religious liberty. As reported by Morning Star News:

Decree 1987 imposes a list of burdensome preconditions upon religious organizations that contradict the language of Article 4. For example, denominations must file a “notarized listing” of the names, ID numbers, tax certificates and police files of national leaders, as well as notarized lists of names and ID numbers of their entire membership....

Decree 1987 also requires churches, synagogues and mosques to file copies of their bylaws with the Ministry of Foreign Affairs. To gain official approval, these documents must include procedures for “the admission and exclusion of members, the rights and obligations of members, an internal disciplinary regimen which includes infractions, sanctions and procedures,” and other such provisions.

NAEB argues that Decree 1987 requires churches "to operate under a model of administration contrary to our own faith doctrines."

N.H. Supreme Court Dismisses Challenge To Education Tax Credits On Standing Grounds

In Duncan v. State of New Hampshire, (NH Sup. Ct., Aug. 28, 2014), the New Hampshire Supreme Court vacated and remanded a trial court decision that invalidated New Hampshire's Education Tax Credit program. The trial court held that the program was a violation of the state constitution's ban on compelling any person to support sectarian schools. (See prior posting.) In yesterday's decision, the state Supreme Court did not reach the merits of the argument, but instead dismissed on standing grounds.  The Court summarized its holding:

We do not reach the merits of the petitioners’ declaratory judgment petition because we conclude that: (1) the 2012 amendment to RSA 491:22, I, which allows taxpayers to establish standing without showing that their personal rights have been impaired or prejudiced, is unconstitutional; and (2) absent that amendment, the petitioners have no standing to bring their constitutional claim.

AP reports on the decision.

6th Circuit Affirms Dismissal of Suit By Christian Evangelists Preaching At Arab Festival

In Bible Believers v. Wayne County, (6th Cir., Aug. 27, 2014), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, affirmed the distrct court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. The majority held that this action by the police did not violate plaintiffs' 1st or 14th Amendment rights:

The video from the 2012 Festival demonstrates that Appellants’ speech and conduct intended to incite the crowd to turn violent. Within minutes after their arrival, Appellants began espousing extremely aggressive and offensive messages—e.g., that the bystanders would “burn in hell” or “in a lake of fire” because they were “wicked, filthy, and sick”—and accused the crowd of fixating on “murder, violence, and hate” because that was “all [they] ha[d] in [their] hearts.” These words induced a violent reaction in short order; the crowd soon began to throw bottles, garbage, and eventually rocks and chunks of concrete..... As in Feiner, the situation at the 2012 Festival went far beyond a crowd that was merely unhappy and boisterous; as Richardson explained to the Bible Believers, the threat of violence had grown too great to permit them to continue proselytizing.

Judge Clay dissented, saying:

This is a clear heckler’s veto, breaching the principle that “hostile public reaction does not cause the forfeiture of the constitutional protection afforded a speaker’s message so long as the speaker does not go beyond mere persuasion and advocacy of ideas [but rather] attempts to incite to riot.”

AP reports on the decision. [Thanks to How Appealing for the lead.]

Suit By Pastor To Sex Offenders Challenges Law Restricting His Ministry

In Montgomery, Alabama yesterday, Ricky Martin, pastor of the Triumph Church in Clanton, Alabam filed a lawsuit challenging a recently enacted state law aimed at shutting down his ministry to sex offenders. The complaint (full text) in Martin v. Houston, (MD AL, filed 8/27/2014) contends that Al. Code Sec. 45-11-82 violates RLUIPA, the Alabama Religious Freedom Amendments, and the free exercise, bill of attainder and due process clauses of the federal Constitution. The law, which is applicable only in Chilton County, prohibits registered adult sex offenders who are not related from living in the same residence or within 300 feet of another registered sex offender. Martin, as part of his ministry, allows sex offenders to live in trailers behind his church while they are locating more permanent housing. AL.com reports on the case.

Court Awards Attorneys' Fees In Utah Polygamy Law Challenge

Last year, a Utah federal district court held that most of Utah's anti-polygamy statute is unconstitutional. (See prior posting.) After that grant of summary judgment, there remained a claim for monetary damages by plaintiffs based on 42 USC Sec. 1983. Yesterday in Brown v. Shurtleff, (D UT, Aug. 27, 2014) the court entered judgment on this remaining claim, awarding attorneys' fees, costs and expenses to plaintiffs.  The court concluded that defendants had waived their claims of prosecutorial immunity and qualified immunity.  Plaintiffs, subjects of the reality series "Sister Wives," decded to drop their claim for addtiional damages stemming from the criminal investigation and public comments in their case. The court's order reiterated last year's holding that the only portion of the Utah statute which is constituitonal is a provision that bars marriages inwhich an individual seeks multiple marriage licenses from the state. Provisions barring cohabiting or entering a religious marriage with someone else are unenforceable. Salt Lake Tribune reports on the decision.

Justice Department Sues Minnesota Town Over Denial of Use Permit To Mosque

The Justice Department announced yesterday the filing of a civil lawuit against St. Anthony Village, Minnesota for violating the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  The suit challenges the village's refusal to issue a conditional use permit to the Abu Huraira Islamic Center that seeks to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. According to the Minneapolis Star-Tribune, the 4-1 City Council vote reversing the recommndation of the City Planning Staff came after a Council meeting at which some residents made disparaging remarks about the Muslim faith.

6th Circuit Reverses Hate Crime Convictions In Amish Beard-Cutting Case

In an important decision under the Hate Crimes Prevention Act of 2009, the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed the convictions of 16 members of the Bergholz Amish community for their roles in beard and hair-cutting attacks on other Amish men and women. In United States v. Miller, (6th Cir., Aug. 27, 2014), the majority held that the district court gave an erroneous instruction to the jury on motivation that went to the central issue in the trial.

18 USC Sec. 249 prohibits willfully causing bodily injury "because of" the victim's actual or perceived religion. The entire panel agreed that the U.S. Supreme Court's January 2014 decision in Burrage v. United States, which post-dated the district court's decision, should be read to require "but for" causation here. The district court judge had refused to giv e a "but for" causation instruction, and instead instructed the jury that the victims' religion need only be a "significant factor" in motivating the assaults. Judge Sutton's majority opinion on appeal, after closely examining the testimony at trial, concluded:

When all is said and done, considerable evidence supported the defendants’ theory that interpersonal and intra-family disagreements, not the victims’ religious beliefs, sparked the attacks. And all of this evidence could have given a reasonable juror grounds to doubt that religion was a but-for cause of the assaults.

Judge Sargus (sitting by appointment) dissented arguing that there can be more than one "but-for" causes, and that here it was only because of the religious significance of the act that defendants chose to cut off the hair and beards of their victims. He contended that the majority had wrongly required faith-based animus in order to convict.  New York Times, reporting on the decision, points out that defendants are still in prison on other charges.  [Thanks to Tom Rutledge for the lead.]

Court Dismisses Lease Dispute That Involves Hutterite Competing Factions

According to the Aberdeen News, a South Dakota trial court Monday dismissed a lawsuit over the right to farm leased land that in reality was part of the ongoing battle between two Hutterite factions over who controls the Hutterville Colony in South Dakota.  Red Acre LLC sued claiming that it entered a lease to allow it to farm 9800 acres in the Colony and that Hutterville Hutterian Brethren and four colony residents, including George Waldner, tried to plant crops and interfere with Red Acre.  Waldner, who leads one of the competing factions, responded that Red Acre is merely a shell for his rival Johnny Wipf Sr., and asked for the lease be declared void.  The court, relying on prior decisions of the South Dakota Supreme Court (see prior posting), held that civil courts have no jurisdiction of the internal dispute of the religious colony.

8th Circuit: North Dakota Ten Commandments Monument Is OK

In Red River Freethinkers v. City of Fargo, (8th Cir., Aug. 25, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision held that a Ten Commandments monument at Civic Plaza in Fargo, North Dakota is permissible under Supreme Court and 8th Circuit precedent. Judge Bye dissening argued that this case differs from those where similar monuments have been upheld because here it permanently stands alone in a prominent location. He contended that the district court erred in granting summary judgment for defendants because factual questions remain about the city's involvement with the religious motives of the monumnent's backers.

Jury Questions Remain In Town Hall Bar Mitzvah Challenge

In Whitnum v. Town of Greenwich, 2014 U.S. Dist. LEXIS 115617 (D CT, Aug. 19, 2014), a Connecticut federal district court refused to grant summay judgment to plaintiff who complained that the Town of Greenwich and its First Selectman allowed a bar mitzvah to take place in the Greenwich Town Hall, but denied similar requests from other religious groups. At issue was the ceremony for three Israeli exchange students after an Israeli Independence Day ceremony. In plaintiff's Establishment Clause challenge, the court held that substantial fact questions remain for the jury as to whether the ceremony amounted to an endorsement of religion by the city.

Recent Articles of Interest

From SSRN:

• Giancarlo Anello & Ulrico Agnati, The Time Reserved for Religious Practice as a Mainstay of the Religious Freedom. Constantine's Statutes on Sunday Rest and its Legacy in Contemporary Multicultural Society, (July 29, 2014).
• John Gillespie, Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam, (Harvard Human Rights Journal, Vol 47 (1) 107-149 (2014)).
• Ioana Cismas, Religious Actors and International Law, (Oxford University Press, 2014).
• Ruth E. Gavison, Reflections on the Meaning and Justification of 'Jewish' in the Expression 'A Jewish and Democratic State', (The Israeli Nation-State: Political, Constitutional, and Cultural Challenges, p. 135, 2014).
• Lauren Maisel Goldsmith & James R. Dillon, The Hallowed Hope: The School Prayer Cases and Social Change, (St. Louis University Law Journal, Forthcoming).
• Scott Thomas Fitzgibbon, The Law's Duty to Promote the Kinship System: Implications for Assisted Reproductive Techniques and for Proposed Redefinitions of Familial Relations, (Boston College Law School Legal Studies Research Paper No. 329 (2014)).
• Steven Douglas Smith, Die and Let Live? the Asymmetry of Accommodation, (San Diego Legal Studies Paper No. 14-162 (2014).
• Michael L. Helfand, Religious Institutionalism, Implied Consent and the Value of Voluntarism, (Southern California Law Review, Vol. 88, No. 3, 2014).
• Avigail I. Eisenberg, Religion as Identity, (August 4, 2014).
• Russell Powell & Arthur DeLong, The Possible Advantages of Islamic Financial Jurisprudence: An Empirical Study of the Dow Jones Islamic Market Index, (Fordham Journal of Corporate and Financial Law, Vol. 19, 2014).

From SmartCILP:

• Lewis M. Wasserman, Overcoming Obstacles to Religious Exercise in K-12 Education, 40 Journal of Legislation 96-153 (2013-14).

Police Officer States Establishment Clause Claim

In Marrero-Mendez v. Pesquera, 2014 U.S. Dist. LEXIS 116118 (D PR, Aug. 19, 2014), a Puerto Rico federal district court held that a Puerto Rico police force officer had adequately stated an Establishment Clause claim.  Plaintiff Alvin Marrero-Méndez claimed that his commander opened and closed police officer formations with Christian prayers, and when Marrero-Méndez complained and attempted to walk away, he was told to stop until the prayer was completed. Then his commander shouted that Marrero-Méndez was standing apart because "he doesn't believe in what we believe."

Federal Agencies Act To Expand Exemptions To Contraceptive Madate For Religious Objectors

Federal agencies today issued two relases on changes to the contraceptive coverage mandate under the Affordable Care Act.  The first Release adopts interim final rules for non-profit religious charities and educational instituitons that have objections to providing contraceptive coverage. The changes react to the order the Supreme Court issued in the Wheaton College:

These interim final regulations amend the Departments’ July 2013 final regulations to provide an alternative process for the sponsor of a group health plan or an institution of higher education to provide notice of its religious objection to coverage of all or a subset of contraceptive services, as an alternative to the EBSA Form 700 method of self-certification. These interim final regulations continue to allow eligible organizations to use EBSA Form 700....

The alternative process ... is consistent with the Wheaton order. It provides that an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services. The notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type ...  and the name and contact information for any of the plan’s third party administrators and health insurance issuers.....

When an eligible organization that establishes or maintains or arranges a self-insured plan subject to ERISA provides such a notice to HHS, DOL (working with HHS) will send a separate notification to each third party administrator of the ERISA plan. DOL’s notification will inform each third party administrator of the eligible organization’s religious objection to funding or administering some or all contraceptive coverage and will designate the relevant third party administrator(s) as plan administrator under section 3(16) of ERISA for those contraceptive benefits that the third party administrator would otherwise manage. The DOL notification will be an instrument under which the plan is operated and shall supersede any earlier designation....

If an eligible organization that establishes or maintains an insured health plan provides a notice to HHS under this alternative process, HHS will send a separate notification to the plan’s health insurance issuer(s) informing the issuer(s) that HHS has received a notice under §2590.715-2713A(c)(1) and describing the obligations of the issuer(s) under § 2590.715-2713A. Issuers remain responsible for compliance with the statutory and regulatory requirement to provide coverage for contraceptive services to participants and beneficiaries, and to enrollees and dependents of student health plans, notwithstanding that the policyholder is an eligible organization with a religious objection to contraceptive coverage that will not have to contract, arrange, pay, or refer for such coverage. 

The second Release propses amendments as to for-profit entities with religious objections, responding to the Supreme Court's Hobby Lobby decision.  As summarized in the Release:

In light of the Court’s decision in Hobby Lobby, the Departments propose to amend the definition of an eligible organization under the July 2013 final regulations to include a closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered. Under these proposed rules, a qualifying closely held for-profit entity that has a religious objection to providing coverage for some or all of the contraceptive services otherwise required to be covered would not be required to contract, arrange, pay or refer for contraceptive coverage; instead, payments for contraceptive services provided to participants and beneficiaries in the eligible organization’s plan would be provided separately by an issuer ...  or arranged separately by a third party administrator ....

In considering inclusion of certain closely held for-profit entities ..., the Departments are considering and seek comment on how to define a qualifying closely held for-profit entity.... [T]he Departments are proposing for comment two possible approaches to defining a qualifying closely held for-profit entity.... Under the first proposed approach, a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners...... Under a second, altertnative approach, a qualifying closely held entituy would be a for-profit entity in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners.

Summary Contempt Finding For Wearing Religious Head Covering Reversed

Without reaching the free exercise issue, in State of New Jersey v, Graham, (NJ App., Aug. 12, 2014), the New Jersey Superior Court Appellate Division held that a municipal court judge acted improperly in summarily holding a defendant facing a disorderly persons charge in contempt.  As explained by an ACLU press release:

When Matthew Graham went before Egg Harbor City Municipal Judge William Cappuccio in Oct. 2013, the judge held Graham in contempt for not removing his hat, despite Graham’s explanation that he wore it for religious purposes. When Judge Cappuccio stated that he knew of no religion that required the wearing of a “ski cap,” Graham attempted to explain that he lacked the funds to travel to the store where he could purchase a more traditional religious cap.

On apppeal (after a battle over indigency status of the defendant), the appeals court in a brief order said:

We do not beleive that wearing of what the municipal judge called a "ski cap" during the proceeding, compelled invocation of the extraordinary judicial contempt powers to summarily adjudicate a defendant's conduct. A contempt proceeding on notice and an order to show cause was available to deal effectively with defendant's conduct, if warranted.

The ACLU's brief discusses the 1st Amendment issues involved.

Trial Court Strikes Down North Carolina School Voucher Program

In North Carolina yesterday, a state trial court judge struck down on state constitutional grounds North Carolina's Opportunity Scholarship program. As reported by Reuters, Judge Robert Hobgood ruled that the voucher program diverts funds which can constitutionally be used only for public schools. Also some of the funding is going to schools that discriminate on the basis of religion. A 22-minute video of the judge reading his ruling is available online.  The written opinion does not appear to yet be available.  Supporters of the program as well as the state's Attorney General plan to appeal.  Previously the state had attempted to speed up awards of scholarship funds under the program to beat Judge Hobgood's decision. (See prior posting.) However, according to the Raleigh News & Observer:

The state agency in charge of administering the program had tried to disburse the first round of funds last week, but a technical glitch prevented the payments from going through, said Elizabeth McDuffie, director of grants, training and research at the agency.

The process was launched again starting on Monday with the goal of getting funds at the private schools by the end of this week.

When Hobgood ruled Thursday morning, the disbursement was halted. “No money has left the building,” McDuffie said.

UPDATE: A transcript of Judge Hobgood's ruling from the bench is now avaiable.

Dispute Over Suspension of Methodist Bishop Dismissed As Ecclesiastical Dispute

In Clark v. Moore, (SC Sup. Ct., Aug. 20 2014), the South Carolina Supreme Court in an unpublished (i.e. non-precedential) decision dismissed a suit growing out of a dispute between the Bishop of the Reformed Methodist Union Episcopal Church (RMUE) and the Church's General Officers.  The General Officers suspended Moore as bishop after finding that he had stolen Church funds.  Bishop Moore disputed their authority, removed the General Officers and cancelled the election for bishop that had been scheduled.  The Court dismissed the suit because it is "an ongoing ecclesiastical dispute which cannot be resolved by neutral principles of law."  Chief Justice Tole filed a concurring opinion urging that the case be remanded to the lower court for further factual findings on which party is the highest decision-making body of the RMUE so that the Court could then defer to its decision.

Settlement In Black Mass Lawsuit, But Event Will Go On Using Black Bread

Apparently there has been a settlement of sorts in the lawsuit filed two days ago by the Archbishop of Oklahoma City to obtain return of communion wafers that a Satanic group was going to use in a "Black Mass." (See prior posting.) According to VICE News yesterday, after the court quicly issued a temporary restraining order prohibiting defendant Adam Daniels or anyone under his control from concealing, damaging or destroying the wafers or removing them from the county, Daniels gave the wafers to his lawyer and then agreed to hand them over to the Archdiocese in exchange for the suit being dropped. Daniels said that he had obtained the wafers from a priest in Turkey. Daniels plans to go ahead with the Sept. 21 Black Mass, but will now use the traditional coarse black bread used in Satanic rituals.

5th Circuit: Interior's Eagle Feather Rules Violate RFRA

In McAllen Grace Brethren Church v. Salazar, (5th Cir., Aug. 20, 2014), the U.S. 5th Circuit Court of Appeals held that the Department of Interior had not sufficiently shown that its policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes meets the strict scrutiny requiremnts of the Religious Freedom Restoration Act. The regulations were adopted in order to enforce the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. At isssue was the use of eagle feathers at a powwow by a member of the Lipan Apaches which is not a federally recognized tribe. The court concluded that even if the government has a compelling interest in protecting eagles and furthering its relationship with federally recognized tribes, "the Department has not sufficiently demonstrated at this stage of the proceedings that the current regulatory framework is the least restrictive means of achieving its goals." Reuters reports on the decision.