Religion Clause

Saturday, October 11, 2014

Muslim Waiter Alleges Religious Harassment

The New York Daily News reported Thursday on a lawsuit filed in a New York federal district court against the famous Peter Luger Steak House in Great Neck, Long Island by a Muslim waiter asserting a variety of grievances, including one of religious harassment. The Bangladeshi-born employee, Altaf Chowdhury, alleged, among other things, that two managers tricked him into eating a pork hot dog, telling him it was chicken. Chowdhury says that after he discovered the true facts, he vomited ten times. The steak house says the claims lack merit.

Marriage Equality Proponents Win Victories In Nevada, Idaho, North Carolina

As previously reported, on Wednesday U.S. Supreme Court Justice Anthony Kennedy issued an order temporarily staying the 9th Circuit's mandate invalidating same-sex marriage bans in Idaho and Nevada, even though only Idaho officials applied for the stay. Later the same day, Justice Kennedy issued a second order (full text) vacating the portion of his order staying the 9th Circuit's decision as to Nevada, presumably allowing same-sex marriages to begin immediately there.Then yesterday, the full Court issued an order as to the Idaho case (full text) reading:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

The 9th Circuit's decision affirmed the Idaho federal district court's decision invalidating Idaho's same-sex marriage ban. However, because the 9th Circuit recalled its mandate ordering its affirmance effective immediately once the petition for a stay was filed with the Supreme Court, the parties are concerned that the decision by itself did not serve to dissolve the stay pending appeal of the district court's decision entered by the 9th Circuit in May. So yesterday the plaintiffs filed a motion (full text) to dissolve that stay, and (as reported by SCOTUblog) the 9th Circuit has called for a response by noon Monday, and a reply to that by 5:00 p.m. Monday. [Corrected chronology.]

Meanwhile, in General Synod of the United Church of Christ v. Resinger, (D NC, Oct. 10, 2014), a North Carolina federal district court on its own motion in a case challenging North Carolina's same-sex marriage ban held that the ban is unconstitutional as a matter of law. In a brief opinion and order, the court pointed to the 4th Circuit's decision in Bostic v. Schaefer striking down Virginia's ban on same-sex marriage. (See prior posting.) The Charlotte Observer reports on the decision.

Wednesday, October 08, 2014

9th Circuit's Invalidation of Idaho and Nevada Same-Sex Marriage Bans Temporarily Stayed By Justice Kennedy

U.S. Supreme Court Justice Anthony Kennedy today temporarily stayed the 9th Circuit's mandate yesterday invalidating same-sex marriage bans in Idaho and Nevada. (Full text of order.) Even though only Idaho officials applied for the stay, Justice Kennedy's to stays the 9th Circuit's mandate in the Nevada case as well. Nevada officials had withdrawn their answering briefs in the 9th Circuit, conceding that discrimination against same-sex couples is unconstitutional. Justice Kennedy's order calls for those opposing the bans to file a response by 5 p.m. tomorrow. NPR reports on Justice Kennedy's action.

European Court Says Violence Against Jehovah's Witnesses Violates Human Rights Convention

In Begheluri and Others v. Georgia, (ECHR, Oct. 7, 2014), in a Chamber Judgment, the European Court of Human Rights held that numerous incidents of violence against Jehovah's Witnesses, even when carried out only by private individuals, violated Articles 3 (freedom from inhuman or degrading treatment) and 9 (freedom of conscience and religion) of the European Convention on Human Rights because of the government's indifference and failure to protect those attacked.

... [T]he Court concludes that the relevant authorities were ineffective in preventing and stopping religiously motivated violence. Through the conduct of their agents, who either participated directly in the attacks on Jehovah’s Witnesses or by their acquiescence and connivance into unlawful activities of private individuals, the Georgian authorities created a climate of impunity, which ultimately encouraged other attacks against Jehovah’s Witnesses throughout the country. Furthermore, by an obvious unwillingness to ensure the prompt and fair prosecution and punishment of those responsible, the respondent Government failed to redress the violations, thereby neglecting the inherent preventive and deterrent effect in relation to future violations against Jehovah’s Witnesses.

... All of the above leads the Court to conclude that the Government simply declined to apply the law to protect the applicants. It therefore establishes that Article 3 of the Convention has been violated....

... [S]everal violent attacks took place with the direct participation of various public officials or with their connivance and acquiesence. As to the adequacy of the response, the applicants’ religious gatherings were violently disrupted on a large scale, their religious literature was confiscated and burnt, and their homes were ransacked. Having been treated in that way, the applicants were subsequently confronted with total indifference and a failure to act on the part of the authorities, who, on account of the applicants’ adherence to a religious community perceived as a threat to Christian Orthodoxy, took no action in respect of their complaints.... The authorities’ negligence opened the doors to widespread religious violence throughout Georgia against Jehovah’s Witnesses. The applicants were thus led to fear that they would be subjected to renewed violence at each fresh manifestation of their faith.

... [T]hrough their involvement, connivance or at least acquiescence, the relevant authorities failed in their duty to take the necessary measures to ensure that Jehovah’s Witnesses were able to exercise their right to freedom of religion.... The Court thus concludes that the State’s failures in connection with the circumstances concerning the Jehovah’s Witnesses and the practice of their religion, seen as a whole, resulted in a violation of Article 9 of the Convention...

Art. 3 violations were found as to 32 applicants and Art. 9 violations were found as to 88. The court also issued a press release summarizing the decision. Chamber Judgments are appealable to the Grand Chamber.

9th Circuit: Same-Sex Marriage Bans In Idaho and Nevada Are Unconstitutional

In Latta v. Otter, (9th Cir., Oct. 7, 2014), a 3-judge panel of the U.S. 9th Circuit Court of Appeals held unanimously that laws in Idaho and Nevada that prohibit same-sex marriage and recognition of same-sex marriages performed elsewhere violate the Equal Protection Clause of the 14th Amendment because they discriminate on the basis of sexual orientation. Judge Reinhardt, who wrote the court's opinion, also filed a concurring opinion arguing that the bans also infringe plaintiffs' fundamental right to marriage protected by the 14th Amendment's due process clause. Judge Berzon wrote a concurring opinion holding that the bans also amount to unconstitutional discrimination on the basis of gender.

A mandate issued by the 9th Circuit yesterday evening decreed that its decision takes effect immediately.

Reporting on the decision, Lyle Denniston at SCOTUSblog says that the decision is expected to control pending challenges to similar laws in Alaska, Arizona and Montana-- all in the 9th Circuit.

Bangladeshi Cabinet Minister Fired Over Anti-Hajj Remarks

In Bangladesh last week, the ruling Awami League party dismissed Post and Telecommunication Minister Abdul Latif Siddique from the cabinet after he made unusually critical remarks about the tradition of the hajj. Yesterday's International Policy Digest reports that while in New York, exchanging views with expatriates, Siddique said:

I am dead against hajj. Hajj costs a substantial amount of manpower. About two million people are now in Saudi Arabia to perform Hajj. These people have no work, no production. [They are] only causing reduction [in wealth]. [They are] only having meals [inside the country] and spending money [abroad].

Siddique's remarks led to 19 court cases being quickly filed against him for hurting religious sentiment.

District Court Carries Out Supreme Court's Contraceptive Coverage Decision In Conestoga

The U.S. Supreme Court's Hobby Lobby opinion handed down last June also applied to the companion case of Conestoga Wood Specialties Corp. v. Burwell. Since the 3rd Circuit in Conestoga had denied a preliminary injunction against enforcement of the contraceptive coverage mandate (see prior posting), the Supreme Court reversed the 3rd Circuit and remanded the case for further proceedings. Last week in Conestoga Wood Specialties Corp. v. Burwell, (ED PA, Oct. 2, 2014), the federal district court, in light of the Supreme Court's decision, issued a permanent injunction barring the government from enforcing the contraceptive coverage mandate against Conestoga as to those contraceptive services to which the company and its owners object on religious grounds. The court noted that if the proposed rules creating an accommodation for businesses asserting a religious objection are adopted, the government reserves the right to enforce the accommodation against Conestoga. Christian News reports on the court's action.

Tuesday, October 07, 2014

Supreme Court Hears Oral Arguments In Prison Beard Case; Full Transcript Available

The U.S. Supreme Court today heard oral arguments in Holt v. Hobbs, a case in which a Muslim inmate seeks for religious reasons to grow a one-half inch beard, in violation of Arkansas prison grooming rules. The prisoner asserts that RLUIPA affords him that right. The transcript of the full oral argument is available from the Supreme Court's website. SCOTUSblog also has a lengthy report on the oral argument, saying:

The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates: it would be important to have a good reason for the restriction before it gets into court. Trying to bolster the rationale at the lectern is not a promising strategy.

A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.

Court Allows NYC Muslim Bus Driver To Move Ahead With Challenge To Headwear Policy

In Muhammad v. New York City Transit Authority, (ED NY, Sept. 30, 2014), a New York federal district court denied the Transit Authority's motion for summary judgment in a suit filed against it by a female Muslim bus driver who was reassigned to a less desirable position after she refused to remove her khimar or cover it with a Transit Authority uniform cap. Originally filed in 2004, the lawsuit alleges violations of Title VII and the First Amendment. The court concluded that a reasonable jury could find that the Transit Authority failed to offer plaintiff a reasonable accommodation of her religious beliefs. It also concluded that plaintiff had presented a prima facie case of disparate impact under Title VII and religious discrimination in violation of the First Amendment. Two years ago, the Transit Authority settled a parallel suit brought against it by the U.S. Department of Justice. (See prior posting.)

Pending Lawsuit In Spain Challenges Award of State Medals To Icons

The Wall Street Journal reported yesterday on a lawsuit filed in Spain earlier this year challenging the odd practice of awarding state medals to Roman Catholic icons. The suit was triggered by the latest example-- the presentation of Spain’s Gold Medal of Police Merit last April to a statue named Virgin del Amor (Our Most Holy Mary of Love) located in a church in the city of Malaga. The state award is supposed to go to a member of the police force who suffered injury or death in the line of duty. In announcing the award last February, the Interior Ministry praised the icon "for sharing police values such as dedication, caring, solidarity and sacrifice." The lawsuit, filed in Spain's National Court, was brought by Jorge García González, head of the Movement Towards a Secular State. Officials say such awards merely recognize long-standing ties between Catholic lay communities and the police. An April article in The Guardian has additional background.

Suit Accuses Author Nicholas Sparks of Discrimination Against Jewish-Quaker School Headmaster

Times of Israel reports on a lawsuit filed last week against popular author Nicholas Sparks by the fired head of The Epiphany School of Global Studies. The K-12 school in New Bern, North Carolina was founded by Sparks. The suit claims that Sparks and other members of the school's board engaged in a campaign to humiliate and defame plaintiff Saul Hillel Benjamin by displaying contempt for his Jewish heritage and Quaker faith. The Oct. 2 lawsuit was filed in North Carolina federal district court.

State Trooper Sued Over Proselytizing After Traffic Stop

Huffington Post reported yesterday on a federal lawsuit filed last month against an Indiana State Police Trooper for proselytizing a driver after stopping her for a traffic violation. The complaint (full text) in Bogan v. Hamilton, (SD IN, filed 9/23/2014), alleges that after stopping driver Ellen Bogan and issuing her a warning ticket for speeding, Trooper Brian Hamilton asked Bogan whether she had a home church and had accepted Jesus as her savior. He then gave her a pamphlet from a Cambridge City, Indiana Baptist church. The suit asks for damages alleging that the trooper's coercive questioning and proselytizing violated the First Amendment.

More Certiorari Denials From SCOTUS Yesterday

Yesterday the U.S. Supreme Court issued it usual long beginning-of-term list of cases in which it is denying review. (Order List). In addition to the already widely reported denial of certiorari in same-sex marriage cases from five states (see prior posting), the Court also denied certiorari in the following cases of interest:

Mehanna v. United States, (Docket No. 13-1125). At issue was whether a citizen's political or religious speech may constitute provision of material support or resources to a Foreign Terrorist Organization. (1st Circuit's opinion in the case.)
Freshwater v. Mount Vernon School District, (Docket No. 13-1311). In the case, the Ohio Supreme Court upheld the firing of a middle school science teacher for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.)
Pittman-Bey v. Celum, (Docket No. 13-10031). In the case, the 5th Circuit held that defendants had qualified immunity in a suit by a Muslim inmate who was not allowed to participate in Ramadan activities without first having participated in Jumu'ah services. (See prior posting.)

Monday, October 06, 2014

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

Red Mass and Modernized Website Herald Opening of Supreme Court's 2014 Term

The Supreme Court's new term opens today. To mark the occasion, the annual Catholic Red Mass was held yesterday in Washington's Cathedral of St. Matthew the Apostle. According to the Legal Times, four of the Court's six Catholic Justices (Roberts, Scalia, Kennedy, Thomas) and two of its three Jewish Justices (Breyer and Kagan) attended. So did a number of D.C. lower court judges.

Tomorrow the Court will hear oral arguments in a religious accommodation case-- Holt v. Hobbs. At issue is whether the Religious Land Use and Institutionalized Persons Act permits Arkansas to bar a Muslim prison inmate from growing a one-half inch beard. (See prior related posting.) All the briefs filed in the case are available from SCOTUSblog.

The Court usually issues a long list of certiorari denials on its first day of the term, and might grant review in additional cases as well. Among the most closely watched are a number of petitions for review in same-sex marriage cases.

The Court also begins the Term displaying a revamped website with a modernized look and improved navigation features. (Court press release.)

Appeals Court Upholds Finding That Peyote Was Not Held For Religious Use

In People v. Marbain, 2014 Cal. App. Unpub. LEXIS 7012 (CA App., Sept. 29, 2014), a California appellate court affirmed a trial court's denial of a motion by an officer of a local chapter of the Native American Church seeking return of peyote seized at multiple residences. The appeals court held that the trial court was justified in concluding that the peyote was not intended for religious use because of substantial quantities of marijuana also found at defendant's residences.

Sunday, October 05, 2014

White House Sends Muslims Best Wishes on Eid and Hajj

On Friday, the White House issued a statement (full text) from the President extending best wishes to Muslims celebrating Eid al-Adha, and congratulating those performing the Hajj this year.

Recent Prisoner Free Exercise Cases

In Allen v. Lizarraga, 2014 U.S. Dist. LEXIS 136439 (ND CA, Sept. 26, 2014), a California federal district court rejected an inmate's claim in a habeas corpus proceeding that his free exercise rights were infringed by a state court's conclusion that the clergy-penitent privilege did not apply to his confession.

In Peele v. Klemm, 2014 U.S. Dist. LEXIS 136935 (WD PA, Sept. 29, 2014), a Pennsylvania federal magistrate judge allowed a Muslim inmate to proceed under RLUIPA with a challenge to a Department of Corrections policy that restricts participation in the Eid-al-Fitr and Eid-al-Adha feasts to inmates who have participated in Ramadan services, who pay the cost of the feast and who are not in disciplinary custody.

In Williams v. Pollard, 2014 U.S. Dist. LEXIS 137297 (ED WI, Sept. 27, 2014), a Wisconsin federal district court allowed an inmate to challenge the confiscation of his two folders of religious material and more broadly an unofficial policy that disfavors Nation of Islam as a religion, as well as retaliation against him for his earlier role in getting NOI recognized as a religion.

In Covington v Annucci, 2014 N.Y. Misc. LEXIS 4214 (Seneca Co. NY Sup. Ct., Sept. 25, 2014), a New York state trial court rejected a complaint by a Muslim inmate that he is sometimes treated by a female medical worker.

In Pittman v. Jesson, 2014 U.S. Dist. LEXIS 137803 (D MN, Sept. 30, 2014), a Minnesota federal district court permitted a civilly committed sex offender to proceed against certain defendants with his complaint that rules barred him from wearing his Kufi outside his cell except during Jumah services and that he was prohibited from bringing his Koran into the yard, wearing his prayer beads at all times, doing his daily prayers in the yard, and keeping his prayer oils in his room.

In yet another decision in Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 139028 (D HI, Sept. 30, 2014), an Hawaii federal district court has now certified classes and subclasses in the class action on behalf of Native Hawaiian inmates who claim their religious rights were infringed.

In Harbin v. South Carolina Department of Corrections, 2014 U.S. Dist. LEXIS 138215 ( D SC, Sept 30, 2014), a South Carolina federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 139617, June 12, 2014) and dismissed an inmate's complaint that Nation of Islam inmates are not provided separate study group classes and services from other Muslims.

In Salam v. Delaney, 2014 U.S. Dist. LEXIS 138479 (WD AR, Sept. 30, 2014), an Arkansas federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 138480, Sept. 8, 2014) and among other things dismissed a Muslim inmate's claim that he was denied a pork-free diet.

In Morceli v. Meyers, 2014 U.S. Dist. LEXIS 141037 (ED CA, Oct. 1, 2014), a California federal magistrate judge recommended dismissing an inmate's complaint because there was no evidence that the named defendant was responsible for the alleged policy of refusing to allow Muslim inmates to wear kufis in the dining hall, or to purchase and wear black kufis anywhere.

Muslims In Europe Concerned About Names Used To Refer To ISIS/ ISIL

The New York Times reported last week that Muslims in France and Britain have been urging their governments to find a name other than "Islamic State" to refer to ISIL. French Muslims say that using "Islamic State" stigmatizes the country's Muslims and gives unwarranted legitimacy to ISIL. French Foreign Minister Laurent Fabius announced last month that his government would refer to the terrorist group as "Daesh", an acronym for the group's Arabic name "Al-Dawla al-Islamiya fi al-Iraq wa al-Sham." Some experts warn, however, that Daesh creates negative reactions because it sounds like the Arabic word "daes" that means to trample or crush. American Muslim groups generally agree that any name that does not actually use the workd "Islamic" is acceptable, so that they generally do not object to "ISIS".