Religion Clause

Friday, August 29, 2014

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.

Thursday, August 28, 2014

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.]

Tuesday, August 26, 2014

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.

Monday, August 25, 2014

Sunday, August 24, 2014

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."

Friday, August 22, 2014

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.

Thursday, August 21, 2014

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.

A Note To Religion Clause Readers

A Note to Religion Clause Reders:

The corollary to this famous New Yorker cartoon by Peter Steiner is that on the Internet nobody knows where you are located either. So I wanted to let readers know that this week I am moving from Atlanta to the Detroit, Michigan area. I know there are a number of Religion Clause readers in Michigan, and I look forward to perhaps our crossing paths as I emigrate back North. In the meantime, blogging on Religion Clause over the next week is likely to be spotty. Other than that, the blog will continue to look the same.-- HMF

Pennsylvania Diocese Gets Permanent Injunction Against ACA Contraceptive Mandate

In Brandt v. Burwell, (WD PA, Aug. 20, 2014), a Pennsylvania federal district court issued a permanent injunction under RFRA against requiring the Diocese of Greensburg, Pennsylvania and affiliated organizations to comply with the compromise rules under the Affordable Care Act contraceptive coverage mandate. In its 53-page opinion, the court said in part:

Here, the issue is whether Plaintiffs, being non-secular in nature, have successfully proven that their right to freely exercise their religion under RFRA has been substantially burdened by the “accommodation,” which requires the Bishop of Greensburg (or his designees) to sign a form (EBSA Form 700) that thereby facilitates/initiates the provision of contraceptive products, services, and counseling. Based upon the evidence of record as set forth in the Court’s factual findings, this Court concludes that the accommodation substantially burdens Plaintiffs’right to freely exercise their religion.

Trib Total Meida reports on the decision. The court had previously issued a preliminary injunction in the case. (See prior posting.)

Archbishop's Suit Seeks Return of Consecrated Host Taken By Organizers Of Black Mass

The Catholic Archbishop of Oklahoma City filed an unusual lawsuit yesterday in an effort to stop a satanic "Black Mass" ritual scheduled to be held at the Oklahoma City Civic Center on Sept. 21. The complaint (full text) in Coakley v. Daniels, (OK County Dist. Ct., filed 8/20/2014), seeks replevin (recovery of possession) of a Consecrated Host that was wrongfully retained by defendants Adam Daniels and his church, Dakhma of Angra Mainyu Syndicate, for use in their planned Black Mass ceremony. According to the complaint, the Consecrated Host is a wafer "that has undergone the transubstantiation and is now the body and blood of Jesus Christ." Defendants, it is contended, intend to desecrate the host during the ceremony by corrupting it with sexual fluids and stomping on it. According to CNHI News Service, as well as a statement from the Archbishop, both Catholics and Protestants have criticized the planned mockery of Catholic beliefs and have called for the Civic Center to cancel the event.

EEOC Sues Over Food Market's Refusal To Accommodate Jehovah's Witness

The EEOC yesterday announced the filing of a lawsuit against the supermarket chain Food Lion for its refusal to accommodate the religious needs of a Jehovah's Witness minister and elder employed as a meat cutter in one of the food chain's North Carolina stores. The company originally agreed to accommodate Victaurius Bailey's request not to work on Thursday nights or Sundays so that he could attend church services and religious meetings. However when Bailey was transfered to a different store, he was fired for refusing to work on Sundays.

Supreme Court Issues Stay In Virginia Same-Sex Marriage Case

Yesterday the U.S. Supreme Court issued an order (full text) in McQuigg v. Bostic, staying the U.S. 4th Circuit Court of Appeals order that invalidated Virginia's ban on same-sex marriage. (See prior posting.) The order delays the 4th Circuit's mandate until a petition for Supreme Court review is disposed of. SCOTUS Blog reports on the stay..

Wednesday, August 20, 2014

9th Circuit: State Can Require Care Workers To Accompany Disabled Clients To Religious Services

In Williams v. State of California, (9th Cir., Aug. 19, 2014), the U.S. 9th Circuit Court of Appeals adopted the district court's opinion in concluding that the rights of two residential care facilities and their employees were not infringed when, under state law, employees were required to personally accompany a developmentally disabled client to attend Jehovah’s Witness services. The court rejected the argument that this infringed free exercise rights and the establishment clause by requiring Catholic employees to violate their religious beliefs by attending non-Catholic religious services. Courthouse News Service reports on the decision.

Amish Lose In Suit Forcing Them To Obtain Building Permits

WQOW reported yesterday that an Eau Claire County, Wisconsin trial judge has ruled in two of the six pending cases against Old Order Amish families, requiring them to obtain building and sanitary permits for their houses. If the families do not apply for the permits within 30 days, they will be required to leave their houses. In oder to otain the permits, the Amish would have to install smoke and carbon monoxide detectors, but their religious beliefs do not allow them to own electronic devices or plug into the public grid.

India's Former Prime Minister Immune In U.S. Courts As To Some Charges Of Participation In Killing of Sikhs

In Sikhs For Justice v. Singh,(D DC, Aug. 19, 2014), the D.C. federal district court dismissed on immunity grounds most, but not all of the claims against India's former Prime Minister for his role in the torture and killing of Indian Sikhs. The court summaried its decision:

Defendant Manmohan Singh was, until very recently, the Prime Minister of India. Plaintiffs ... have brought this suit alleging that the former Prime Minister tortured and killed Indian Sikhs during his time at the helm of that country’s government and, before then, as Finance Minister. The United States, a non-party in this litigation, has filed a Suggestion of Immunity claiming that Singh, as the sitting Prime Minister, is entitled to head-of-state immunity. Although at the time of that filing, Singh was indeed Prime Minister, he left office three weeks later. Plaintiffs, consequently, counter that Singh is no longer entitled to such immunity. They are only partly correct. Although he is no longer a head of state, Singh is entitled to residual immunity for acts taken in his official capacity as Prime Minister. Because such residual immunity does not cover actions Singh pursued before taking office, however, the allegations stemming from his time as Finance Minister survive.

Reuters reports on the decision and has more on the substantive allegations in the case.

Court Reverses Divorce Order Barring Father From Disparaging Mother's Catholic Religion

In Pierson v. Pierson, (FL App., Aug. 18, 2014), a Florida appellate court reversed the portion of a trial court's order which, in granting a dissolution of a marriage, prohibited the father "from doing anything in front of ... or around the children that disparages or conflicts with the Catholic religion." During the marriage the three children had been raised in the mother's Catholic faith, but while the parties were separated the father became a Jehovah's Witness. One of the children, during a third-grade Catholic Sunday school class, told the teacher and students that their Bible and music were wrong, their priests were bad, and he was going to grow up to be a Jehovah's Witness minister. The appeals court concluded, however, that "the evidence did not establish the harm necessary to award the mother ultimate religious decision-making authority...."

Interlocutory Bankruptcy Court Order On Recovering Donations To Church Not Appealable

In re Nichols, (D MD, Aug. 15, 2014), is an action by the trustee for the bankruptcy estate of Lynette Tawana Nichols seeking to recover from God's Universal Kingdom Christian Church over $93,000 in contributions the church received from Nichols in the three years preceding her filing for bankruptcy. Nichols was president of the church, and the contributions greatly exceeded those she made in prior years. The trustee claimed these were fraudulent conveyances that could be recovered for the benefit of Nichols' creditors. The church argued that the claim was barred by the Religious Freedom Restoration Act, but the bankruptcy court issued an interlocutory order refusing to dismiss the trustee's claim. It cited the subsequently enacted Religious Liberty and Charitable Donations Act of 1998 (RLCDA) that validates in bankruptcy good faith contributions under 15% of gross income or larger contribtuions that are similar to those a debtor made in past years. The bankruptcy court concluded that, subject to those protections, the trustee's claim could proceed.

The present opinion involves a motion by the church to appeal the bankruptcy court's interlocutory order to the district court. However appeal of a bankruptcy court's interlocutory order-- as opposed to an appeal once a final judgment is entered-- is available only if there is a difference of opinion among courts on a controlling issue of law. The district court concluded that there is no controversy among courts because there is no case law indicating that application of the RLCDA violates RFRA. Thus an immeidate appeal of the interlocutory order is not appropriate.

Tuesday, August 19, 2014

Canadian "Pastafarian" Sues To Wear Pirate Bandana For License Photo

CJAD News today reports on a lawsuit in Canada in which a woman who says she is a member of the Church of the Flying Spaghetti Monster is seeking the right to wear a pirate bandana for her driver's license photo. Isabelle Narayana, a "Pastafarian," is suing the Quebec Auto Insurance Board claiming that its denial infringes her religious freedom in violation of Canada's Charter of Rights and Freedoms.The Montreal resident's license expired in March and she may lose her job if she cannot renew it.

Sides View Navy's Policy On Gideon Bibles In Starkly Contrasting Terms

Since June, a dispute has been simmering over the practice by some hotels on Naval Bases of accepting Gideon Bibles for placement in Navy Lodge guest rooms. It is interesting to compare reports by the two sides on developments. Here are excerpts from an Aug. 15 release by Freedom From Religion Foundation:

The Navy Exchange Service Command (NEXCOM) issued a quiet directive on June 19 in response to a complaint by FFRF, ordering removal of religious material from Navy-run lodges by Sept. 1.....

Yesterday (Aug. 14), it was reported that the Navy had temporarily caved and ordered the return of the bibles to hotel rooms while it reviewed its policy. Theocrats are loudly declaring victory in an effort to silence the objections of the nonreligious.

The Religious Right has orchestrated a media frenzy to intimidate the Navy into maintaining its illegal policy of providing bibles in all Navy-run hotel rooms. FFRF needs your help now to give the Navy some backbone. The Navy needs to hear from the one in five who are nonreligious and those who honor the constitutional wall of separation between state and church.

And here are excerpts from an Aug. 15 report on the same situation from Fox News:

A Navy spokesman confirms that Bibles will be returned to base lodges, and they’ve also launched an investigation to determine why God’s Word was removed from guest rooms in the first place.

Navy Exchange, which runs the base lodges, sent a directive out in June ordering the Bibles removed, after the Freedom From Religion Foundation filed a complaint. The atheist group alleged the books were a violation of the U.S. Constitution....

Navy spokesman Ryan Perry said the decision was made without their knowledge.... During the review process, Perry said the “religious materials” that were removed will be returned.

The Bibles had been donated to the Navy by Gideons International... Tim Wildmon, of the American Family Association ... [said]: “We must be alert to what the secularists are doing inside the military.... But this reversal proves that those who believe in religious freedom can make a difference when we take action.”

Group Issues Election Guides Designed To Respect Diversity and Church-State Separation

Interfaith Alliance yesterday announced the release of 3 publications for the 2014 election season, each designed to respect religious diversity and church-state constratints. The publications, aimed at candidates, houses of worship and voters, are: Running for Office in A Multifaith Nation; A Campaign Season Guide for Houses of Worship; and Five Questions for Candidates on the Role of Religion in American Public Life. Interfaith Alliance also announced a website that can be used by members of the public to report candidates' abuse of religion on the campaign trail. The site allows individuals to "Submit An Eye On The Election Report."

Monday, August 18, 2014

Groups Ask White House To End Anti-Muslim Training Material In Federal Agencies

Last week, a coalition of 75 religious and civil rights groups sent a letter (full text) to the White House asking it to " to take immediate action to end the use of anti-Muslim training materials and address anti-Muslim conduct exhibited by agencies throughout the federal government." The Aug. 14 letter to Lisa Monaco, President Obama's advisor on homeland security and counterterrorism, cites especially the findings in a July 9, 2014 article in The Intercept.

Religious Non-Profit College Wins Attack on Contraceptive Mandate Compromise

In Louisiana College v. Sebelius, (WD LA, Aug. 13, 2014), a Louisiana federal district court granted summary judgment to Louisiana College on its claim that its rights under RFRA are infringed by the Affordable Care Act contraceptive coverage accommodation for religious non-profits. The college is affiliated with the Southern Baptist Convention, and offers it employees a self-insured plan through a third party administrator that is also an SBC affiliate. The court held that the requirement that plaintiff self-certify its objections, or else incur onerous penalties, creates a substantial burden on its free exercise because of its religious objections to facilitating access to contraceptive methods it deem abortifacients. The government failed to show that the compromise was the least restrictive means to achieve a compelling governmental interest. The Shreveport Times reports on the decision.

Sunday, August 17, 2014

Recent Prisoner Free Exercise Cases

In Haight v. Thompson, (6th Cir., Aug. 15, 2014), the 6th Circuit remanded, finding triable issues of fact, claims by Native American inmates that they should have access to a sweat lodge, and should have buffalo meat at their once a year powwow. The 6th Circuit held, however, that money damages are not recoverable under RLUIPA in suits against officials in their individual capaicites. (AP has more on the decision.)

In Williams v. King, 2014 U.S. Dist. LEXIS 110757 (SD NY, Aug. 11, 2014), a New York federal district court allowed a Shiite Muslim inmate to proceed with some of his free exercise and equal protection claims alleging that the penal facility's Muslim chaplain, a Sunni, discriminated agiast Shiites by allowing Muslim inmates to pray and fast only for the last two days of Muharram (the Sunni custom) rather than for the full ten days (the Sunni custom).

In Howard v. Webster, 2014 U.S. Dist. LEXIS 111301 (ED WI, Aug. 12, 2014), a Wisconsin federal magistrate judge permitted a Buddhist inmate to proceed with his complaint that Christianity was promoted in various ways in the prison: a painting of Jesus in the library, religious messages in hygiene bags, and Christian music piped through a TV channel. He also could move ahead with a complaint that he was not allowed to possess a necklace with an emblem of Buddha.

In Jones v. Nevin, 2014 U.S. Dist. LEXIS 111576 (D NV, Aug. 11, 2014), a Nevada federal district court dismissed a Jewish inmate's complaint that he did not have access to kosher meals and, instead, had only the common fare menu thast is so distasteful as to discourage inmates from practicing Judaism.

In Diaz v. Kessler, 2014 U.S. Dist. LEXIS 112357 (ND CA, Aug. 12, 2014), a California federal district court permitted an inmate to proceed with his claim that his Jewish religious service was terminated on one occassion in retaliation for his objections to the way other complaints were handled.

In Wortham v. Lantz, 2014 U.S. Dist. LEXIS 112487 (D CT, Aut. 13, 2014), a Connecticut federal district court dismissed a Hebrew Isrelite inmate's complaints that the common fare vegetarian diet did not satisfy his religious needs because it did not include kosher meat, as well as his complaints about not being able to purchase oils from outside vendors or purchase various other religious items.

In Harvey v. Segura, 2014 U.S. Dist. LEXIS 112877 (D CO, Aug. 14, 2014), a Colorado federal district court dismissed on qualified immunity grounds a Muslim inmate's religious objections to a strip search by a female officer, but permitted plaintiff to move ahead with his challenge to the confiscation of his kufi and his claim for punitive damages.

In Depaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 112585 (WD VA, Aug. 12, 2014), a Virginia federal district court dismissed a Nation of Islam inmate's complaint that the prison's common fare diet does not meet his religious dietary needs.

Saturday, August 16, 2014

2nd Circuit: NYC Ritual Circumcision Informed Consent Rule Is Subject To Strict Scrutiny Analysis

In Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene, (2d Cir., Aug. 15, 2014), the U.S. 2nd Circuit Court of Appeals reversed the district court's denial of a preliminary injunction against New York City's informed consent regulations governing metzitzah b’peh, a method of ritual circumcision used by some Orthodox Jewish mohels. (See prior posting.) The regulation, concerned about the possible spread of herpes, requires signed written consent from a parent before direct oral suction may be used in any circumcision. The Second Circuit disagreed with the district court's conclusion that the regulation is neutral and generally applicable and is thus subject only to rational basis scrutiny. The appellate court remanded for the district court to now rule on the likelihood of success on the merits using strict scrutiny, but added:

Acknowledging the weighty interests at stake in this litigation (the plaintiffs’ in the free exercise of their faith and the Department’s in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this [strict scrutiny] standard, believing that careful adjudication will benefit in the first instance from the district court’s comprehensive analysis.

Reuters reports on the decision.

Appeals Court Reverses Dismissal of Negligence Suit Against Hospital Chaplain

In Lefkowitz v. Skokie Hospital, (IL App., July 25, 2014), an Illinois appellate court reversed a trial court's dismissal of a suit by an Orthodox Jewish man, Moshe Lefkowitz, who alleges that Skokie Hospital's Jewish chaplain was negligent in failing to prevent his amputated leg from being incinerated. Orthodox Jewish beliefs require amputated body parts to be preserved or buried so that they can eventually be buried with the individual from whom they came. The appeals court said that there was a question of whether the forms Lefkowitz signed consenting to the hospital's disposal of his amputated leg were effective since Lefkowitz was blind and did not read them. The Chicago Tribune, in an article appearing in tomorrow's edition, discusses the case and also points out that Lefkowitz is a defendant in an unrelated criminal case charging him, his father (a rabbi), and his brother with stealing $10,000 in donations from a North Shore synagogue.

Church Sues JPMorgan For $13 Million In Losses From Bad Trust Investments

This week, Christ Church, an Episcopal Church in Indianapolis, Indiana, filed suit against JP Morgan Chase alleging mishandling of the church's $35 million trust whose assets came originally from gifts from Eli Lilly, Jr. The complaint (full text) in Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase & Co., (SD IN, filed 8/13/2014), alleges that securities law violations, fraud and breach of trust led to losses of $13 million from 2004-2013. It claims that defendants selected "high-risk, high-cost, opaque, unsuitable and poorly performing investments in order to further their own financial interests to the detriment of Christ Church." BNA Daily Report for Executives [subscription required] reports on the lawsuit.

Friday, August 15, 2014

Britain's Equality Commission Seeks Public Inupt On Religion and Belief Issues

Britain's Equality and Human Rights Commission yesterday called for input from the public as part of its three-year project to strengthen the understaning of religion and belief in public life. Yesterday's EHRC Release reads in part:

The Equality and Human Rights Commission has today launched a major call for evidence from individuals and organisations about how their religion or belief, or that of other people, may have affected their experiences in the workplace and in using the services and facilities they need in everyday life. People can give their feedback at www.equalityhumanrights.com/religion.

The Commission wants to gather as much information as possible from members of the public, employers, providers of services, legal advisors and religion or belief organisations. This will be used to assess how employers and service providers are taking religion or belief into account and the impact this has on individuals. The work covers all faiths and beliefs and experiences in England, Scotland and Wales. We want to hear about the issues people face and how they find solutions. The Commission will also use the evidence as part of its work looking at how effective the current legislation is proving in practice.

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman, (TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee. A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:

In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution....

The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....

The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:

The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa.

Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)

Canadian Rival FLDS Leaders Indicted For Polygamy

In Canada yesterday, the Criminal Justice Branch of the British Columbia Minstry of Justice announced that indictments charging polygamy have been filed against the leaders of two rival Bountiful, BC sects of the Fundamentalist Latter Day Saints. The indictments charge that Winston Blackmore practiced a form of polygamy with 24 women, while James Oler is charged with having polygamous unions with four women. Tgey are also charged with unlawful removal of a child from Canada. National Post has more on the indictments. In 2011, atrial court upheld the constituitonality of British Columbia's anti-polygamy laws. (See prior posting.)

NY Farm Fined For Denying Its Wedding Facilities For Same-Sex Wedding

In McCarthy v. Liberty Ridge Farm, LLC, (NY Div. Human Rights, Aug. 8, 2014), the New York State Divsion of Human Rights levied a $10,000 civil fine and awarded compensatory damages of $3,000 in a proceeding against a farm that adversises itself as a venue for weddings, but which refused to contract with the two women complainants for them to use the facilities for their same-sex wedding. The Division held that the discrimination violated the public accommodation provisions of the New York Human Rights Law. Respondents were also required to take steps to prevent future discrimination. The Albany Times-Union reported on the decision.

Thursday, August 14, 2014

Leonard Fine, 80, Dies

Leonard Fine, a giant in the field of religion, public policy and social justice, died today at the age of 80. The Forward, for whom he was a long-time columnist, reported on his death. Fine was a co-founder of Moment Magazine, founder of MAZON and of the National Jewish Coalition for Literacy.

4th Circuit Refuses Stay In Invalidation of Virginia's Same-Sex Marriage Ban

By a 2-1 vote yesterday, the U.S. 4th Circuit Court of Appeals issued an Order (full text) in Bostic v. Schaeffer refusing to delay the mandate in its decision last month invalidating Virginia's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports that attorneys representing the county clerk who is defending the same-sex marriage ban on appeal say they will seek a stay from the Supreme Court before the 4th Circuit's mandate takes effect next Wednesday. A petition for certiorari has already been filed seeking Supreme Court review of the underlying decision. (See prior posting.) Washington Post has more on the plans to seek a Supreme Court stay.

Indian Court Upholds National Commission For Minorities Act

The Times of India reports today that a 2-judge panel of the Allahabad high court has upheld the constitutionality of India's National Commission for Minorities Act. Rejecting claims that the Act discriminates on the basis of religion, the court said in part:

The commission cannot be regarded as a body which is constituted as an institution in aid of or for the protection of a religion but it is an institution which has been created by the Act of Parliament to ensure that minorities are able to realise their rights to development and freedom.

Recount Looming In Slim Primary Victory of Controversial Wisconsin House Candidate

The Hill reports that a likely recount in Wiconsin's Republican congressional primary has called into question Tuesday's initial apparent victory of state senator Glenn Grothman. As of Wednesday morning, Grothman was leading by only 214 votes. (Wis. Election Watch). Grothman, running for the Republican nomination for the U.S. House of Representatives in Wisconsin's 6th District, has become controversial because of his conservative social views. According to The Hill:

Grothman recently said it was "unbelievable" that Secretary of State John Kerry criticized Uganda's harsh anti-gay laws, and has repeatedly called homosexuality a "sin," saying it "should not flourish" in American society. He's also attacked what he's called the "war on men" during a 2010 Tea Party rally, has said that "money is more important for men" as part of explaining why he opposed equal pay legislation, and has sponsored legislation that said that single parenting is a contributing factor to child abuse.

Canada's Citizenship Oath To The Queen Does Not Violate Charter Rights

In McAteer v. Canada (Attorney General), (Ont. Ct. App., August 13, 2014), the Court of Appeal for Ontario rejected constitutional challenges to the requirement that immigrants who wish to become Canadian citizens must swear or affirm that "I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors." Two of the challengers were committed republicans whose consciences were offended by taking an oath to a hereditary monarch. They alleged that the oath violates their freedom of expression and their equality rights protected by Canada's Charter of Rights and Freedoms. Two other plaintiffs asserted that the oath violates their freedom of conscience and religion protected by the Charter:

The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposes that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposes that on account of the oath, she would feel bound to refrain from participating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in these proceedings, is that taking an oath to any human being is contrary to his conception of Judaism.

In rejecting the Charter challenges, the appeals court said:

Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

The Globe and Mail reports on the decision.

Wednesday, August 13, 2014

In Criminal Trial of Palestinian, Jewish Judge Recuses Himself On New Grounds

In Detroit yesterday, federal district Judge Paul Borman recused himself, sua sponte, in the criminal trial of a Palestinian woman chargged with failing to disclose to immigration officials the fact that she spent ten years in an Israeli prison for participating in two terrorist plots, one of which involved the bombing of a supermarket. Last month Borman refused to recuse himself when his impartiality was challenged on the basis of his history of fundraising for the Detroit Jewish Federation and his organizing trips to Israel. (See prior posting.) Now, however, the prosecution furnished a translation of the Israeli indictment against defendant Rasmieh Odeh which indicated that the supermarket targeted in the bombing plot was a SuperSol. In United States v. Odeh, (ED MI, Aug. 12, 2014), Judge Borman wrote:

[A]t the time of the 1969 bombing, my family had a passive financial investment connection to SuperSol.... The Court concludes that my family’s passive financial investment connection to SuperSol at the time of the 1969 bombing could be perceived as establishing a reasonably objective inference of a lack of impartiality in the context of the issues presented in this case.

I recuse today, not because of my charitable giving or my work on behalf of the Jewish Federation of Metropolitan Detroit or other charities, which I concluded in my previous Order created neither the reasonable appearance nor the fact of impartiality. My decision to recuse today is based upon facts which became known to me yesterday in review of a relevant document not previously seen by the Court....

The Chicago Sun-Times reports on the decision.

USCIRF Issues Report On Sectarian Violence In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a Factsheet titled Violence Towards Religious Communities In Pakistan. It reports that from July 2013 to June 2014 there were 122 incidents of sectarian violence resulting in 430 deaths and another 773 injuries. The most common kind of violence was targeted shooting. The largest number of attacks were against Shi'a Muslims, with 222 deaths. The second largest number were against Christians, with 128 deaths. The report includes details of each violent incident.

Vatican Calls On Muslims and Others To Condemn ISIS

Vatican Radio reports that the Pontifical Council for Interreligious Dialogue yesterday issued a statement strongly condemning the atrocities comitted in Iraq by ISIS. The full text of the statement is included in the Vatican Radio report. It reads in part:

The whole world has witnessed with incredulity what is now called the "Restoration of the Caliphate," which had been abolished on October 29,1923 by Kamal Ataturk, founder of modern Turkey. Opposition to this "restoration" by the majority of religious institutions and Muslim politicians has not prevented the "Islamic State" jihadists from committing and continuing to commit unspeakable criminal acts....

The dramatic plight of Christians, Yezidis and other religious communities and ethnic minorities in Iraq requires a clear and courageous stance on the part of religious leaders, especially Muslims, as well as those engaged in interreligious dialogue and all people of good will. All must be unanimous in condemning unequivocally these crimes and in denouncing the use of religion to justify them. If not, what credibility will religions, their followers and their leaders have?

Israel's Law of Return Extended To Same-Sex Non-Jewish Spouses

Since 1970, Israel's Law of Return which grants every Jew in the world the right to settle in Israel has also permitted the non-Jewish spouse of a Jew to settle in the country. The Jerusalem Post reports that yesterday Israel's Interior Minister Gidon Saar instructed the Population and Immigration Authority and the Jewish Agency to grant immigration visas and Israeli citizenship under the Law of Return to non-Jewish same-sex spouses on the same basis as to heterosexual couples. Haredi (ultra-Orthodox Jewish) groups in Israel and the United States strongly criticized the Interior Minister's decision.

Tuesday, August 12, 2014

Ohio Gubernatorial Candidates Take Different Approaches To Public Religious Expression

Yesterday's Columbus Dispatch explores the difference in the public expression of religion by Ohio's two gubernatorial candidates:

Gov. John Kasich doesn’t hide his religious convictions, talking about them frequently in speeches and at other public gatherings.

Ed FitzGerald holds religious values but rarely talks about them.

Although they espouse many of the same principles, the contrast in how Ohio’s gubernatorial candidates apply their Christianity to their public life and policies is stark.

While Democrat FitzGerald, the Cuyahoga County executive, favors abortion rights and supports same-sex marriage as public policy, the lifelong Catholic won’t say how he feels about those issues personally....

Kasich, a Republican who was raised Catholic but became a Protestant after his parents were killed by a drunken driver in 1987, cites God regularly in public, such as in justifying the building of a Holocaust Memorial on the Statehouse grounds, expanding Medicaid to more than a quarter-million Ohioans, in graduation speeches, in his State of the State addresses and even during an event launching a campaign to prevent the elderly from falling....

DC Circuit Acts On Case Remanded After Hobby Lobby

As previously reported, after the U.S. Supreme Court decided the Hobby Lobby case allowing for-profit-businesses to assert religious objections to the Affordable Care Act's contraceptive coverage mandate, it remanded three other cases on its docket posing the same issue. In what appears to be the first Circuit Court to act on the remand, the D.C. Circuit last week entered an order in Gilardi v. HHS (Aug. 8, 2014) providing:

it is ORDERED and ADJUDGED that the case be remanded to the district court with instructions to enter a preliminary injunction for the Freshway companies and to reconsider the denial of the preliminary injunction as to the individual owners in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

Yesterday's Insurance Journal reports on the order. In the case, the D.C. Circuit Court had originally rejected the claim that secular corporations have free exercise rights, but had remanded to the district court for further findings the claims of the individual owners. The ruling on corporate rights had been appealed to the Supreme Court. (See prior posting.)

Little attention has been given to the fact that plaintiffs in the case asserted, consistent with their Catholic beliefs, that they have religious objections to all atificial contraception, not just the limited number of contraceptive methods involved in Hobby Lobby. (Gilardi complaint.) Apparently last week's D.C. Circuit Court order requires the district court to issue an injunction protecting these broader objections.

5th Circuit Rejects Discrimination Claim By Jehovah's Witness

In Norbach v. Woodland Village Nursing Center, Inc., (5th Cir., Augl 7, 2014), the U.S. 5th Circuit Court of Appeals, reversing the district court, dismissed a Title VII religious discrimination suit brought by a nursing home activities aide. Kelsey Nobach was fired by the nursing home after she refused to pray the Rosary with a patient. The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on her Jehovah's Witness religious beliefs. BNA Daily Labor Report covers the decision.

Monday, August 11, 2014

Christian-Owned Bridal Shop Refuses Gown Fittings For Lesbian Couple

The latest installment in the battle over whether Christian-owned businesses can refuse service based on religious beliefs comes from Bloomsburg, Pennsylvania. According to yesterday's Christian News, W.W. Bridal Boutique in Bloomsburg recently refused to schedule gown fittings for two lesbian women who were planning their wedding. One of the women refused service took her complaints to Facebook, and the dispute has now proliferated on social media. Bridal shop owner Victoria Miller later told reporters: "We feel we have to answer to God for what we do. And providing those two girls dresses for a sanctified marriage would break God’s law." Now Bloomsburg city council is considering enacting an ordinance to prohibit discrimiantion on the basis of sexual orientation.

Texas Court Says There Is No Absolute Right To Home School Free of State Regulation

In El Paso Independent School District v. McIntyre, (TX App., Aug. 6, 2014), home-school parents challenged the right of the state to investigate the curriculum which they utilized. It was claimed that the McIntyre children did little school work, and that one of the children said they did not need to because they were going to be raptured. When another of the children ran away at age 17 so she could attend school, the parents refused to provide the school district with any information.

Most of the appellate court's lengthy decision dismissed various claims by the parents on procedural and jurisdictional grounds, including failure to exhaust administrative remedies, election of remedies and qualified immunity. Reaching the parents' 1st Amendment free exerrcise claim, the court rejected the parents' argument that the U.S. Supreme Court's 1972 Yoder decision gave them the right to withhold their children from any type of institutional school beyond the eighth grade. The court noted tha the situation of the Amish in that case was unique and observed:

No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements.

Lebanon Elects New Grand Mufti

Naharnet reports that in Lebanon yesterday, Sheikh Abdul Latif Daryan has been elected as the country's new Grand Mufti. Daryan is currently head of the Sunni Sharia Supreme Court. After his election, Daryan called for moderation and vowed to end the division between the Mufti and the Higher Islamic Council.

Cert. Petitions Filed In Oklahoma and Virginia Same-Sex Marriage Cases

Following quickly on the heels of Utah's Aug. 5 certiorari petition to the U.S. Supreme Court (see prior posting), certiorari petitions have been filed in two more same-sex marriage cases:

A petition (full text) was filed Aug. 6 in Smith v. Bishop, a case in which the 10th Circuit held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog points out that this is the longest-running federal court challenge to same-sex marriage bans, having been filed in 2004.

On Aug. 8, a petition for certiorari (full text) was filed in Rainey v. Bostic. In the case, the 4th Circuit Court of Appeals, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog comments that: "The Virginia case has special symbolic significance, because that is the state that produced the case of Loving v. Virginia, in which the Supreme Court in 1967 struck down a state law barring marriage by couples of different races."

Street Preacher's Challenge To Permit Requirements Dismissed

In Craft v. Village of Lake George, New York, (ND NY, Aug. 7, 2014), a New York federal district court dismissed free speech, free exercise and equal protection challenges by a street preacher to the permit requirements of a resort town in New York's Adirondacks. His "as applied" challenge to the solicitation permit requirements was dismissed because he denies ever soliciting money from passersby. Thus "he could not be deprived of what he did not attempt or intend to exercise." HIs facial challenge to the seasonal permit requirement for handing out leaflets was held to be moot because the village subsequently made "sweeping changes" to the provisions of the Village Code being challenged.

Sunday, August 10, 2014

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis of Northern and Southern California, 2014 U.S. Dist. LEXIS 105841 (ED CA, Aug. 1, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's 250-page long complaint alleging denial or restrictions on conversion to Judaism; hard cover books, materials and artifacts; numbers of books; religious packages; observance of holy days; kosher diet; facial beard; and a kosher work environment.

In Dilworth v. Goldberg, 2014 U.S. Dist. LEXIS 106258 (SD NY, Au. 1, 2014), a New York federal district court allowed a former inmate to proceed with his claim that his religious freedom was infringed while in jail when he was not allowed to attend church services and had his Bible was confiscated.

In Moore v. Gloucester County Jail, 2014 U.S. Dist. LEXIS 108600 (D NJ, Aug. 5, 2-14), a New Jersey federal district court dismissed a Muslim inmate's claim that he was not allowed to practice his religion properly.

In Rojas v. Heimgartner, 2014 U.S. Dist. LEXIS 108855 (D KS, August 7, 2014), a Kansas federal district court dismissed free exercise, equal protection and Indian Religious Freedom Act claims challenging prison dress policy that limited adherents of Native American religious to wearing white bandana headbands at religious ceremonies, and denied them permission to wear colorful headbands.

In Dushane v. Sacramento County Jail, 2014 U.S. Dist. LEXIS 108628 (ED CA, Aug. 5, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that the director of chaplains denied kosher diets to Muslim inmates and limited them to vegetarian diets if they wished to observe their religious dietary requirements.

Consent Decree Allows Gospel Tracts At Street Festivals

In Price v, City of Fayetteville, North Carolina, (ED NC, Aug. 7, 2014), a North Carolina federal district court entered a consent decree enjoining the city from restricting distribution of religious literature at private festivals on public streets that are free open to the public. This specifically includes the Dogwood Festival and the Independence Day Concert held in downtown Fayetteville-- venues at which last year police prevented plaintiffs Tom Price and William Legg from distributing gospel tracts. WRAL News reports on the court's action. [Thanks to Paul de Mello for the lead.]

China Government Is Promoting A Chinese Version of Protestant Theology

China Daily this week reported on remarks by China's director of the State Administration for Religious Affairs outlining a 5-year campaign started last year to promote Christian theology in China. Wang Zuoan was speaking at a seminar in Shanghai on the Sinicization of Christianity, part of the celebration of the 60th anniversary of the founding of the National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China. The new government campaign is designed to adapt Protestant theology to China's national condition and Chinese culture. It will give guidance to Protestant churches in an attempt to promote theological ideas seen as positive and correct by the government.

Egyptian Court Dissolves Muslim Brotherhood's Freedom and Justice Party

In Egypt yesterday, the Supreme Administrative Court ordered dissolution of the Freedom and Justice Party, the political wing of the Muslim Brotherhood. Reuters and BBC News report that the decision, which excludes the party from running candidates in future elections, calls for seizure of the party's assets by the state. The government's Committee of Political Party Affairs had accused the FJP of irregularities. Among other things, police found that the party's headquarters had been used to store weapons. The court's decision may not be appealed. FJP's parent Muslim Brotherhood was banned and its assets were confiscated by court order last year. (See prior posting.)

Saturday, August 09, 2014

New York City Health Department Orders 2 Mohels To Stop Controversial Circumcision Method After Infections

The Forward reported this week that the New York City Health Department has prohibited two mohels from performing Jewish religious circumcisions using the direct oral suction method (metzitzah b’peh) after infant boys allegedly contracted herpes infections from the two. The Health Department refuses to name the mohels for privacy reasons. New York City Health Department regulations adopted in 2012 require mohels to obtain written informed consent before using the controversial method for a circumcision. (See prior posting.) Only one of the two mohels targeted by the Health Department was able to produce the consent form for the infected infant.

Suit Claims Rabbi Sexually Assaulted Students At His Israeli Schools For Girls

Courthouse News Service and JTA report on a class action lawsuit filed last Monday in federal district court in Illinois against Rabbi Elimelech Meisels, his four Orthodox Jewish seminaries in Israel, the U.S. fundraising arm of the schools, and other alleged co-conspirators. The lawsuit, alleging racketeering, fraud, breach of contract, emotional distress, conspiracy and conversion, claims that Meisels induced parents in the U.S. to send their daughters to his high-tuition seminaries where he would sexually assault the girls after developing mentorship relations with them. It is alleged that he kept his victims quiet in part by threatening to ruin their reputations and their chances for an appropriate marriage candidate. A Chicago Jewish religious court that learned of the problems urged parents not to send their children to the schools. The complaint alleges that at that point Meisels engaged in a sham sale of the seminaries to try to retain students.

Friday, August 08, 2014

Ten Commandments On City Hall Lawn Violates Establishment Clause

In Felix v. City of Bloomfield, (D NM, Aug. 7, 2014), in a decision described by the court as "a very close case," a New Mexico federal district court held that a 5-foot tall Ten Commandments monument on the lawn in front of the Bloomfield, New Mexico municipal building violates the Establishment Clause. The monument was constructed on city property by a former member of city council under a city council policy on the placement of monuments on the city lawn. Summarizing its 32-page decision, the court said:

a. Plaintiffs have Article III standing because they have regular, direct, and unwelcome contact with the Ten Commandments monument and therefore have suffered an “injury-in-fact”....

b. The Ten Commandments monument is government speech ... because the ... monument is a permanent object located on government property and it is not part of a designated public forum open to all on equal terms.

c. In view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument, it is clear that the City of Bloomfield has violated the Establishment Clause because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.