Satanic Temple Gets OK For Its December Display In Florida Capitol

Slate reports that Florida's Department of Management Services this week officially approved an application by the Satanic Temple to place a religious display of an angel falling into a pit of fire in the Rotunda of the state capitol building from Dec. 22-29.  In a press release issued Tuesday, Americans United for Separation of Church and State said it had threatened to file a lawsuit on the Temple's behalf. The state last year rejected the Satanic Temple's request under rules that designate the Rotunda as an open forum for private speech, but allow exclusions of displays that are grossly offensive.

Court Dismisses Challenge By Theists To Kansas Science Standards

In COPE v. Kansas State Board of Education, (D KA, Dec. 2, 2014), a Kansas federal district court dismissed on 11th Amendment and standing grounds a challenge to the Kansas State Board of Education science Framework and Standards. Students, parents, taxpayers and a non-profit organization sued claiming that adoption of these guidelines "will cause Kansas public schools to establish and endorse a non-theistic religious worldview in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment."  As further explained by the court:

Plaintiffs contend that the Standards ... use... deceptive methods to lead impressionable children to answer questions about the cause of life with only materialistic or atheistic answers.

In its 25-page discussion of standing, the court said in part:

The Court concludes that our Circuit, when confronted with plaintiffs’ standing argument in this case, would follow the reasoning used by the Seventh and District of Columbia Circuits and hold that plaintiffs lack standing to sue where the only injury alleged is based on a “message” of government endorsement of religion.

AP reports on the decision. COPE has links to pleadings in the case.

European Court Says Turkey Discriminated Against Alevi Houses of Worship

In Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi v. Turkey, (ECHR, Dec, 2, 2014) (full text in French), the European Court of Human Rights in a Chamber Judgment held that Turkey had violated the European Convention on Human Rights (Art. 9 and 14) in its discriminatory treatment of Alevi houses of worship (cemevis),  As summarized by the Court's English language press release:

Turkish law reserved the exemption from payment of electricity bills to recognised places of worship and that, by excluding cemevis from the benefit of that status, it introduced a difference in treatment on the ground of religion.

Turkey's Daily News calls the decision a landmark ruling and says:

The Dec. 2 ruling comes after the Turkish government recently announced a fresh set of reforms aimed at answering the demands of Alevis. These reforms were greeted with considerable skepticism among Alevis, as they once again failed to recognize cemevis as official places of worship.

Chamber judgments are appealable to the Grand Chamber of the Court.

County Votes For Disclaimer On Courthouse Nativity Scene

In Baxter County, Arkansas, the Quorum Court (the equivalent of a county council) voted unanimously yesterday to add a sign containing a disclaimer to the Nativity Scene that traditionally goes up on the county courthouse lawn.  According to the Baxter Bulletin, the creche is put up and taken down by a private family on a portion of the lawn that is leased to the Chamber of Commerce for the display.  Reacting to last Christmas season's complaint from the Appignani Humanist Legal Center, the county approved the following disclaimer:

During the Holiday Season, the County of Baxter salutes liberty. Let these festive lights and times remind us that we are keepers of the flame of liberty and our legacy of freedom. Whatever your religion or beliefs, enjoy the holidays. This display is owned and erected by private citizens of Baxter County.

Mosques: Georgia Town Rejects One After Anti-Islam Protests While New Jersey Town Settles Suit Allowing One

Think Progress reports on the 4-1 vote by Kennesaw, Georgia city council on Monday rejecting the request of a Muslim group to rent space in a strip mall to use for daily and Friday prayers. The action comes after two weeks of heated debate featuring anti-Muslim rhetoric. Protesters outside city council carried signs with slogans such as "Islam Wants No Peace." An anti-Muslim group posted personal information-- including home address and children's pictures-- online about the one council member who favored allowing the mosque. The mayor however says the mosque could increase traffic and interfere with nearby businesses,

UPDATE: On Dec. 15, city council reversed itself and unanimously approved the mosque. (WABE News).

Meanwhile, the town of Bridgewater, New Jersey has reached a settlement with a Muslim group in Al Falah Center v. Township of Bridgewater, after the mosque won a preliminary injunction. (See prior posting).  As reported by NJ,com, the RLUIPA challenge to the township's zoning law amendment was resolved by the mosque exchanging its original property for a $2.75 million parcel at a different location purchased by the township, and payment of $5 million in damages and attorney's fees by the township's insurer.

Suit Challenges School-Sponsored Religious Activity

On Monday, the American Humanist Association and three individuals filed suit against the Hall County Georgia School District seeking to enjoin prayers and religious activities that are part of the District's football and other athletic programs. (Press release.) The complaint (full text) in American Humanist Association, Inc. v. Hall County School District, (ND GA, filed 12/1/2014) alleges in part:

This action challenges Defendants’ policy, practice, and custom of  authorizing faculty, coaches and other school officials to lead and participate in prayer with students during school-sponsored activities, and their policy, practice, and custom of inserting biblical references into official football team documents and banners, in violation of the Establishment Clause.

Oklahoma School District Drops Plans For Bible Course

Religion News Service reported last week that the Mustang, Oklahoma School District has dropped its plans to offer a Bible course using materials developed by the Museum of the Bible-- an organization funded by Hobby Lobby president Steve Green.  Critics of the Bible curriculum say it adopts the conservative Christian belief that the Bible is inerrant. The school district says it dropped plans for the course when the district was not able to review the final curriculum, and did not receive a commitment from the course developers to provide legal coverage to the district if it is sued over the course.

Suit Charges Jehovah's Witnesses With Covering Up Child Abuse

The Oregonian reports that yesterday a $10.5 million lawsuit was filed in state court in Oregon against Jehovah's Witness organizations claiming that they have a policy of covering up sexual abuse of minors by Jehovah's Witness leaders.  The suit was brought by a man and a woman, adults now, who claim they were molested as children by Daniel Castellanos, who held a position equivalent to an ordained minister of a congregation. Plaintiffs' attorney says that the Jehovah's Witness governing body does not disfellowship an alleged abuser unless he confesses or they have two eyewitnesses to the abuse. Even then the congregation is not told why the action occurred.

ERISA "Church Plan" Definition Certified For Interlocutory Appeal To 9th Circuit

In Rollins v. Dignity Health, Inc., (ND CA, Nov. 26, 2014), a California federal district court, reversing it own earlier decision, certified for interlocutory appeal to the 9th Circuit its ruling that the pension plan for employees of  Dignity Health, a 16-state non-profit Catholic health care provider, does not qualify for the "church plan" exemption in ERISA. The court said that it is now persuaded that there is a "controlling question of law" involved such that an interlocutory appeal would be appropriate. The court said:

Dignity estimates having to spend several thousand additional attorney hours, costing in excess of $500,000, to respond to the currently pending and expected discovery requests, in addition to incurring several hundred thousand dollars in attorneys’ fees in responding to Plaintiff’s currently pending motions.... These costs could be avoided, perhaps entirely, by a reversal at the Court of Appeals.

The district court stayed all further proceedings in the case until the 9th Circuit decides whether to take the appeal.  If the 9th Circuit were to decide the plan qualifies as a church plan, the court could ultimately be faced with plaintiffs' argument that the church plan exemption violates the Establishment Clause. Sacramento Business Journal reports on the court's action.

7th Circuit Rejects Appeal of Non-Final Order By Catholic Diocese Sued Over Firing of Teacher

In Herx v. Diocese of Fort Wayne-South Bend, Inc., (7th Cir., Dec. 1, 2014), the 7th Circuit rejected on procedural grounds defendant's appeal from denial of its summary judgment motion seeking dismissal of the employment discrimination suit against it. The district court ruled that a Catholic school teacher who was fired because she underwent in vitro feritilization-- a procedure inconsistent with Catholic teachings-- can move ahead with her claim of sex discrimination under Title VII of the 1964 Civil Rights Act.  The district court rejected various defenses raised by the diocese. (See prior posting.) The 7th Circuit held that the trial court's refusal to dismiss the case is not a final order and thus is not appealable.  The court held that the narrow exception for review of certain collateral orders does not apply to this case. The Diocese will be able to pursue its objections after a final order is issued in the case. The Fort Wayne Journal-Gazette reports on the 7th Circuit's decision.

Supreme Court Denies Cert. In Suit By Police Officer Who Refused To Attend Event At Mosque

The U.S. Supreme Court today denied certiorari in Fields v. Tulsa, Oklahoma, (Docket No. 14-323, cert. denied 12/1/2014). (Order List.)  In the case, the 10th Circuit rejected a free exercise claim brought by a Tulsa, Oklahoma police captain who was ordered to arrange for two officers and a supervisor to attend a police appreciation day held at the Islamic Society of Tulsa. (See prior posting.) News OK reports on the high court's action.

Recent Articles and Book of Interest

From SSRN:

• Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013).
• Ayelet Blecher-Prigat, A Constitutional Right to Marry: Israeli Style, (47 Israel Law Review 433 (2014)).
• Sherif Girgis, Windsor: Lochnerizing on Marriage?, (Case Western Reserve Law Review, Vol. 64, No. 3, 2014). 

From SmartCILP:

• J. Michael Martin, Why Congress Adopted the Church Audit Procedures Act and What Must Be Done Now To Restore the Law for Churches and the IRS, 29 Akron Tax Journal 1-27 (2014).

Forthcoming Book:

• Roberta Rosenthal Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition, (Oxford University Press, Feb. 2015). (Introduction).

British Lords Discuss Religion In Public Life

In Britain on Thursday, the House of Lords, after a lengthy debate (full text), passed a motion reading: "this House takes note of the role of religion and belief in British public life."  While the motion seems unremarkable, the Lords' debate on it (to read full debate, click on "Next Section" at bottom of each page of text) sheds interesting light on religion and politics in Britain.  The motion was put forward by Lord Richard Harries of Pentregarth, a retired bishop of the Church of England. Here is part of his lengthy remarks on the resolution:

In the 2011 census there was a voluntary question about religion. This revealed the presence of 33.2 million Christians—59% of the country, down from 72% in 2001.... At the same time, the Muslim presence was revealed as 2.7 million—4.8% of the population, up from 3% in 2001. Other religions also showed an increase. Hindus were up to 1.5% of the population and Sikhs up to 0.8%—the same figure as for a combination of all other religions, except for Judaism, which remained static on 0.5%

No less significant was the number of people who said that they had no religion—14.1 million or 25.1% of the population, up from 14.8% in 2001, making it the second largest category after Christianity. To this might be added the large number of people who prefer to define themselves as spiritual, rather than religious....

However, it is not just the presence of non-Christian religions and those who profess no religion that has made the difference. It is that religion is visible and agitative in a way that it was not before. It has a voice, or rather a variety of voices that want to be heard in the public sphere. They are not content to have religion confined to the inward and personal dimension. So it is, for example, that issues concerning the wearing of the cross and employment practices have found their way to the European Court of Human Rights, and there have been major issues concerning religion in schools, as we know.

In short, whether one likes it or not, religion is now a major player on the public stage in a way that could not have been envisaged perhaps even 30 years ago.

[Thanks to Law & Religion UK for the lead.] 

Recent Prisoner Free Exercise Cases

In Ajala v. West, 2014 U.S. Dist. LEXIS 163003 (WD WI, Nov. 19,2014), a Wisconsin federal district court dismissed a Muslim inmate's complaint that he was denied a halal diet and that officials refused to serve him the prepackaged meals that Jewish prisoners receiving kosher meals received.

In Dockery v. Wetzel, 2014 U.S. Dist. LEXIS 163403 (MD PA, Nov. 21, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his request for a halal diet with meat was refused; that he was not permitted to leave his unit (one for inmates with serious mental health and disciplinary problems) to attend Jumu'ah services with the general population; and he was not permitted to view religious services on closed circuit TV.

In Graddy v. Ding, 2014 U.S. Dist. LEXIS 163489 (ED CA, Nov, 20, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was not allowed to participate in Ramadan activities while on "C Status" because of his misbehavior.

In Nji v. Heath, 2014 U.S. Dist. LEXIS 163060 (SD NY, Nov. 10, 2014), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that as a keeplock inmate he was not allowed to attend Christmas religious services.

In Houston v. Schriro, 2014 U.S. Dist. LEXIS 165409 (SD NY, Nov. 24, 2014), a New York federal district court allowed an inmate to proceed with his complaint that he was denied low-sodium halal meals.

Pope Francis Visiting Turkey Decries ISIL Violence

Pope Francis is in the midst of a 3-day visit to Turkey.  Yesterday in Ankara he spoke to religious and political leaders in an address to the Presidency of Religious Affairs, the "Diyanet." (Full text of speech). He said in part:

Especially tragic is the situation in the Middle East, above all in Iraq and Syria. Everyone suffers the consequences of these conflicts, and the humanitarian situation is unbearable..... Particular concern arises from the fact that, owing mainly to an extremist and fundamentalist group, entire communities, especially – though not exclusively – Christians and Yazidis, have suffered and continue to suffer barbaric violence simply because of their ethnic and religious identity. They have been forcibly evicted from their homes.... This violence has also brought damage to sacred buildings, monuments, religious symbols and cultural patrimony, as if trying to erase every trace, every memory of the other.

As religious leaders, we are obliged to denounce all violations against human dignity and human rights.... [A]ny violence which seeks religious justification warrants the strongest condemnation because the Omnipotent is the God of life and peace. The world expects those who claim to adore God to be men and women of peace who are capable of living as brothers and sisters, regardless of ethnic, religious, cultural or ideological differences.

False Anti-Muslim Speech Protected By 1st Amendment

In American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority ("SEPTA"), (ED PA, Nov. 25, 2014), a Pennsylvania federal district court granted a motion to exclude expert testimony on the falsity of language in an anti-Islam ad which an advocacy group wants to place on public buses. SEPTA refused to accept the ad under its policy to refuse copy that, among other things, disparages on the basis of religious belief.  AFDI sued claiming this rejection violates its free speech rights.  In the lawsuit, SEPTA sought to offer expert testimony that the ad's referring to Haj Amin al-Husseini as the “leader of the Muslim world” is false and that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.” The court concluded however that the proposed testimony is irrelevant because the 1st Amendment protects false speech as well as accurate expression. The court also rejected as too attenuated the argument that the ad amounts to a fraudulent charitable solicitation.  The website listed in the ad links to a second website at which charitable contributions can be made. WND's report on the decision includes a photo of the disputed ad.

District Courts Reach Conflicting Results In Challenges To ACA Religious Non-Profit Contraceptive Accommodation

In Association of Christian Schools International v. Burwell, (D CO, Nov. 26, 2014), a Colorado federal district court upheld the Obama administration's most recent accommodation for religious non-profits that have conscience objections to the contraceptive coverage mandate under the Affordable Care Act.  The court rejected RFRA challenges by 5 non-profits, concluding that the accommodation "imposes a de minimis rather than a substantial burden on plaintiffs’ religious exercise."  The court explained:

All that plaintiffs are required to do under the new accommodation is provide a single sheet of paper that attests to their sincere religious objection and identifies their insurance provider or third-party administrator.... Plaintiffs claim that, by invoking the new accommodation via written notice, they would be “enabling the government’s scheme to facilitate free access to abortifacient services[.]”... But plaintiffs’ involvement with the administration of the mandate ends the moment they submit the written notice opting out of paying for contraceptive coverage. Plaintiffs’ objection is not to the notice they must submit to the government, but rather to the actions of third parties that will occur afterwards.

Plaintiffs in the case were educational institutions, a health care sharing organization and the legal advocacy organization Alliance Defending Freedom.

However, in Insight for Living Ministries v. Burwell, (ED TX, Nov 25, 2014), a Texas federal magistrate judge issued a preliminary injunction barring the federal government from enforcing the accommodation against a Christian radio broadcast ministry, saying:

The Court finds, and Defendants do not dispute, that IFLM holds sincere religious beliefs against providing certain drugs or devices which potentially could harm or kill a fertilized human egg. The accommodation compels or pressures IFLM to perform an act that it was not already performing. The nature of the accommodation provided by the Government would cause IFLM to facilitate, participate, and assist in, actions resulting in the provision of the abortionfacient drugs and renders IFLM complicit in providing its employees with what it contends are abortionfacient drugs....

Requiring IFLM to certify its objections to HHS (or to its TPA) requires IFLM to participate and act in the very arrangement to which it objects on the basis of its sincerely held religious beliefs. The Court therefore finds that IFLM is substantially burdened in its religious exercise.

Suit Says Police Promoted Prayer Vigil

The American Humanist Association announced this week that it has filed an Establishment Clause lawsuit against the City of Ocala, Florida and its police department over a Sept. 24 community prayer vigil.  The complaint (full text) in American Humanist Association, Inc. v. City of Ocala, Florida, (MD FL, filed 11/24/2014), says that police in their uniforms spoke and preached at the vigil which had been promoted by the police chief on the police department's Facebook page.  The suit seeks a declaratory judgment and injunction.

President Issues Thanksgiving Day 2014 Proclamation

Yesterday the President issued the Thanksgiving Day 2014 Presidential Proclamation, officially proclaiming today as a National Day of Thanksgiving. The Proclamation reads in part:

With God's grace, this holiday season we carry forward the legacy of our forebears.  In the company of our loved ones, we give thanks for the people we care about and the joy we share, and we remember those who are less fortunate.  At shelters and soup kitchens, Americans give meaning to the simple truth that binds us together:  we are our brother's and our sister's keepers.  We remember how a determined people set out for a better world -- how through faith and the charity of others, they forged a new life built on freedom and opportunity.

Florida and Texas Churches Successfully Challenge Zoning Denials

This week, churches in Florida and Texas were successful in their RLUIPA challenges to zoning denials.

In Church of Our Savior v. City of Jacksonville, (MD FL, Nov. 25, 2014), a church prevailed on its RLUIPA "as applied" equal terms challenge to Jacksonville, Florida's denial of a conditional use permit. A Florida federal district court found that the city granted a permit to a Montessori school to operate in a residentially zoned area, while denying it to the church, thereby creating less than equal treatment.  The court went on to hold that the city had not shown that its two denials of conditional use permit applications were narrowly tailored to further compelling interests.  The court held that the city's actions did not violate various other provisions of RLUIPA, including RLUIPA's "substantial burden" provisions. [Thanks to Dan Dalton for the lead.]

In Cornerstone Church By the Bay v. Town of Bayview, (SD TX, Nov. 24, 2014), a Texas federal district court a preliminary injunction agreed to by both parties that apparently envisions that the town will grant a special use variance to allow a congregation to operate a church and school on property it owns in an area zoned residential. The injunction prevents the town from enforcing the zoning ordinance or interfering with the church's operation while the church applies for the required permits. Liberty Institute reports on the court's action and provides further background and links to the pleadings.