Religion Clause

Thursday, March 19, 2015

Seventh Day Adventist Entitled To Unemployment Benefits After Being Fired For Saturday Absences

In Lester v. Butler, (GA App., March 17, 2015), a Georgia state appeals court held that a Seventh Day Adventist who refused to work on Saturdays for religious reasons cannot be denied unemployment benefits when she was fired for excessive absences. The fact that she became a Seventh Day Adventist some three months after she took her job does not change the result.

Defamation Suit Between Ukrainian Orthodox Church Factions Dismissed

In Nykoriak v. Bilinski, (MI App., March 17, 2015), a Michigan appeals court dismissed a suit that apparently grew out of the rivalry in a Michigan parish between the Ukrainian Orthodox Church controlled by Moscow, and the Ukrainian Orthodox Church-Kyiv Patriarchate that was created to be independent of Moscow. [See prior posting for background]. The suit was brought by Bishop Paisiy and a deacon who apparently decided to embrace the Moscow Patriarchate. They sued the Kyiv Patriarchate in the United States and Canada and its leaders. Bishop Paisiy asserted that the defendants

released a press release on March 23, 2013, which falsely alleged that plaintiff Bishop Paisiy resigned as bishop; he transferred to the Moscow Patriarchate; he could no longer serve as bishop; ... and that ... St. Andrew Church [in Hamtramck, Michigan] was placed under the direction of the [Kyiv] Vicariate. Plaintiffs also alleged that on March 24, 2013, ... defendants arrived at St. Andrew and behaved in an unruly manner, used profanity, interrupted services, took pictures of plaintiffs, called them, "The Devil, Criminal Thief, and other inappropriate, immoral and unlawful terms," and then distributed the [Kyiv] Vicariate's press release to the congregation.

The court held first that defendants' alleged conduct did not rise to the level of intentional infliction of emotional distress. As to the defamation claim, the heckling in which plaintiffs were called devil and criminal could not reasonably be understood a stating actual facts. The remaining defamation claims, the court held, are barred by the ecclesiastical abstention doctrine:

In order to adjudicate plaintiffs’ claims, a court would have to engage in an impermissible excursion into their religious doctrine pertaining to ordination, the religious authority needed for succession of their church leaders, and the organization and form of their church government.

Wednesday, March 18, 2015

Recent Prisoner Free Exercise Cases-- Installment #2 For the Week

In Hall v. Martin, 2015 U.S. Dist. LEXIS 29585 (WD MI, March 11, 2015), a Michigan federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 30572, Feb. 18, 2015) and denied summary judgment to a Messianic Jewish inmate who was suing because he was denied a strict vegetarian diet.

In Haynes v. Hedgpeth, 2015 U.S. Dist. LEXIS 30673 (ND CA, March 12, 2015), a California federal district court refused to dismiss some of the claims by a Muslim inmate complaining that he was denied access to group Jumu'ah prayer. The court referred the case for settlement proceedings.

In Chaparro v. Ducart, 2015 U.S. Dist. LEXIS 30912 (ND CA, March 9, 2015), a California federal district court permitted a Jehovah's Witness inmate to proceed with his complaint that under prison policy he was not permitted to attend religious services for 30 days because he failed to attend a service that he had been authorized to attend.

In Fluker v. Davis, 2015 U.S. Dist. LEXIS 31140 (SD MS, March 13, 2015), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that while in restrictive custody he could not attend Jumu'ah services outside of his unit.

In Williams v. Miller, 2015 U.S. Dist. LEXIS 31296 (WD OK, March 12, 2015), and Oklahoma federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 30419, Jan. 27, 2015) and dismissed a Muslim inmate's complaint that he lacked access to a Qur'an during Ramadan and that prison officials failed to remove from Ramadan participation inmates that failed to honor the Ramadan fast.

Suit Over Mismanagement of Maryland Church Dismissed

A Maryland federal district court has dismissed a lawsuit growing out of a longstanding dispute over control and operation of the Landover County, Maryland-based Jericho Baptist Church Ministries. Most of plaintiff's claims were brought as a derivative suit alleging mismanagement and breach of fiduciary duty that caused congregational membership to drop from 15,000 to 30. The suit also alleges that defendants hired themselves at high salaries to operate the church. In Franklin v. Jackson, (D MD, March 13, 2015), the court held that the derivative claims should be dismissed because plaintiffs failed to make demand on the board to take corrective action before filing the suit in the name of the corporate entity. The sole non-derivative claim-- an asserted vested right to vote for trustees-- was dismissed on the merits.

9th Circuit Hears Oral Arguments In Tribe's Attempt To Protect Medicine Lake Highlands

On March 12, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Pit River Tribe v. Bureau of Land Management, (Case No.13-16961). Appellants' brief in the case asserts:

This case may well decide the fate of the Medicine Lake Highlands, a place of deep religious significance and spiritual renewal for countless generations of Native Americans. This remote forested landscape is tucked into the far northeastern corner of California just south of Lava Beds National Monument....

Among the issues raised on appeal is whether tribal members' spiritual, environmental, recreational, and economic interests in protecting the Medicine Lake Highlands give plaintiffs standing to assert claims under the Geothermal Steam Act. Counter Punch has more on the arguments and the background of the case.

5th Circuit Affirms School's Rejection of Jesus Tattooed Jumbotron Ad

In a brief opinion in Little Pencil, L.L.C. v. Lubbock Independent School District, (5th Cir., March 13, 2015), the U.S. 5th Circuit Court of Appeals affirmed a Texas federal district court's dismissal (see prior posting) of free speech and free exercise claims by an organization that unsuccessfully sought to display a religious ad on a high school football field jumbotron. The ad depicted a tattooed Jesus and a website URL, and was part of a marketing concept using a new way to share the Bible's teachings. KAMC News reports on the decision.

Suit Challenges School System's Refusal To Give Teachers Good Friday Off

In Cranston, Rhode Island, this year for the first time the school committee eliminated Yom Kippur, Rosh Hashanah and Good Friday as school holidays. Instead, it negotiated a collective bargaining agreement that allows teachers to take up to two days off each school year if they are required to attend religious services during the school day. AP reports that on Monday the union filed suit because the school system has denied requests from some 200 teachers to take Good Friday off, even though they allowed teachers who requested it to take Rosh Hashanah off last fall. School Superintendent Judith Lundsten says that the Good Friday requests are not covered by the collective bargaining agreement because Good Friday does not require attendance at religious services during school hours. According to the Cranston Patch, the suit claims that the discriminatory denial of religious leave here is a breach of the collective bargaining agreement and a violation of the state Religious Freedom Restoration Act. [Thanks to Tom Rutledge for the lead.]

Burmese Court Gives 30 Month Sentences To Bar Owner and Manager For Buddha Facebook Ad

BBC News reported yesterday that a court in Myanmar has found the manager of the upscale VGastro Bar in Yangon (a New Zealander), along with the bar's owner and a colleague (both Burmese), guilty of intentionally plotting to insult religious belief by uploading to Facebook an ad that depicted a psychedelic mock-up of the Buddha wearing DJ headphones. The ad promoted a cheap drinks night. The bar owner claimed the posting was the responsibility of the bar manager. The three men have been in jail since they were denied bail last December. (See prior posting.) Each was now sentenced to two-and-one-half years in prison, apparently 6 months longer than the prescribed maximum sentence under Myanmar Penal Code Sec. 295A. [Thanks to Scott Mange for the lead.]

In Latest Installment, Alabama Federal District Court Refuses To Stay Same-Sex Marriage Order

In the latest episode of dueling orders, the Alabama federal district court in Strawser v. Strange. (SD AL, March 16, 2015), has denied a motion by Probate Judge Don Davis to stay its preliminary injunction finding Alabama's laws banning same-sex marriage unconstitutional. Davis argued that he has been placed in a potential conflict between the district court's injunction and orders of the Alabama Supreme Court. (See prior posting.) The district court said:

Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him.

Reuters reports on the decision.

Tuesday, March 17, 2015

Brazilian Court Affirms Right of Adventist To Close His Service Station For Sabbath

Adventist Review reported yesterday that a court in Brazil has issued an injunction upholding the right of a Seventh Day Adventist to keep his service station closed from sunset Friday to sunset Saturday, despite a rule promulgated by the Brazilian oil industry regulator ANP that gas stations must be open Monday through Saturday for 14 hours per day. João Francisco do Nascimento began his gas station business in the city of Lagarto some six months before ANP adopted the rule he is contesting.

Ex-Scientologists Must Submit Fraud Claims To Internal Arbitration

A Florida federal district court last Friday ruled that two former members of the Church of Scientology who are suing for return of over $400,000 in donations and deposits for services they made to the Church are bound by the arbitration clause in some 40 Enrollment Applications they signed. In Garcia v. Church of Scientology Flag Service Organization, Inc., (MD FL, March 13, 2015), plaintiffs claimed they were fraudulently induced into contributing substantial sums and that they paid some $69,000 in deposits toward services that were never provided. (See prior posting.) The court held that neutral principles of Florida law can be applied to determine the enforceability of the arbitration clause without impermissibly deciding religious doctrine.

The court rejected plaintiffs' claim that the arbitration clauses that relegated plaintiffs' to the Church's internal arbitration procedures are procedurally unconscionable. It held that even though the Church did not have detailed arbitration rules, the procedures in the Enrollment Applications are minimally adequate. It also concluded that the clauses are broad enough to cover all disputes, not just those related to the Enrollment Applications.

Finally the court held that the First Amendment precludes it from considering plaintiffs' claim that they cannot receive a fair hearing because they have been declared "suppressive" by the Church, and Scientologists in good standing are prohibited by Church doctrine from communicating with suppressive individuals. The court said:

As compelling as Plaintiffs' argument might otherwise be, the First Amendment prohibits consideration of this contention, since it necessarily would require an analysis and interpretation of Scientology doctrine. That would constitute a prohibited intrusion into religious doctrine, discipline, faith, and ecclesiastical rule, custom or law by the court....

Tampa Bay Times and The Underground Bunker report on the decision.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

... The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Monday, March 16, 2015

Israeli Court Tells Ultra-Orthodox Paper To Publish Ad By Party Running Women Candidates- UPDATE- Order Reversed

In Israel on Friday, a district court in the city of Lod ordered Yated Ne'eman, the largest haredi (ultra-Orthodox) newspaper to publish at least one election ad by U’bezchutan, a political party seeking votes of haredi women. Jerusalem Post reports that a number of haredi media outlets have rejected ads from U’bezchutan, the only haredi party that has women candidates on its list. Publication of print ads in the haredi community is particularly important because many ultra-Orthodox women do not have access to the Internet. The court rejected the argument of the newspaper that the ad would offend the feelings of the paper's readers. The newspaper however has appealed the ruling, so the issue may not be finally decided before tomorrow's election.

UPDATE: On Sunday night, Israel's Supreme Court reversed the district court's judgment. (Report from Yeshiva World).

NYC's de Blasio Proposes Compromise On Religious Instruction In Pre-K Programs

AP reported yesterday that in New York City, Mayor Bill de Blasio plans to expand the participation of Jewish, Christian and Muslim schools in his free pre-kindergarten program for 4-year olds by permitting schools to offer religious instruction and prayer during mid-day breaks. This proposal is particularly aimed at increasing the participation of Orthodox Jewish schools in the program. The New York Civil Liberties Union says this is an "end-run" around church-state restrictions. Meanwhile, this arrangement may still be a problem for many Jewish schools who see the required secular 6 hour and 20 minute day as too long to leave time for additional religious instruction. The city is proposing to allow schools to remain open 6 days per week, and also on federal holidays such as Christmas, so students can get 31 hours and 40 minutes of secular instruction per week. But a spokesman for Jewish schools says this compromise is still unworkable.

Sunday, March 15, 2015

New Supreme Court Decisions Change Free Exercise Conclusions In Indian Case

In Northern Arapaho Tribe v. Ashe, (D WY, March 12, 2015) a Wyoming federal district court held that the U.S. Supreme Court's recent decisions in Hobby Lobby and Holt v. Hobbs require the district court to depart from an earlier decision in a dispute between two Indian tribes on the taking of bald eagles for religious ceremonial purposes. In a November 2012 decision (see prior posting) the district court rejected a challenge under RFRA by the Northern Arapaho Tribe to a limitation in a Fish and Wildlife Service permit that allowed them to take two bald eagles for religious purposes in Wyoming, but not on the Wind River Reservation that they share with the Eastern Shoshone tribe. The Eastern Shoshones oppose the taking of bald eagles on the reservation because they consider the eagles sacred.

Now, in a decision on a First Amendment challenge to this limitation, the court, finding that the permit decision is not a neutral law of general applicability, applied the compelling interesst- least restrictive alternative test to invalidate the limitation on the Northern Arapaho's rights. The court said in part:

The real dispute in this case is the question of whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion....

Following the Supreme Court's recent guidance in Hobby Lobby and Holt, when determining whether Defendants' decision is justified by a compelling interest, the Court must look beyond the broadly formulated interest and ... ask whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion.

The Court concludes that it is not. The asserted harm to the culture and religion of the Eastern Shoshone Tribe if the Northern Arapaho Tribe were to take up to two bald eagles per year within the Wind River Reservation is miniscule. There is no doubt that the federal government has "general interests in preserving Native American culture and religion in-and-of themselves and in fulfilling trust obligations to Native Americans."... But the argument that taking up to two bald eagles per year within the Wind River Reservation would seriously compromise the federal government's general interest in protecting and fostering the Eastern Shoshone Tribe's culture and religion is unavailing. See Holt, 135 S.Ct. at 863.....

AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Abernathy v. Strada, 2015 U.S. Dist. LEXIS 28041 (ED NY, March 6, 2015), a New York federal district court dismissed, primarily for failure to exhaust administrative remedies, a complaint by a former Native American inmate that he was refused a transfer to a correctional facility in which he could have access to a sweat lodge, tobacco for pipe ceremonies, musical instruments and religious literature.

In Rountree v. Clarke, 2015 U.S. Dist. LEXIS 28511 (WD VA, March 9, 2015), a Virginia federal district court dismissed an inmate's claim that religious books sent to her were improperly confiscated, but allowed her to move ahead with her claim for injunctive relief growing out of her complaint that she has been prohibited from standing on her prayer rug during count procedures as required by her Buddhist faith.

In Smith v. Cruzen, 2015 U.S. Dist. LEXIS 28604 (ND C, Feb. 24, 2015), a California federal district court permitted a Muslim inmate to proceed with his complaint that a correctional officer stopped Muslims from engaging in previously-approved group prayer. A second pro se plaintiff who had filed jointly was dismissed without prejudice, allowing him if he wishes to file a separate action.

In Harris v. Gipson, 2015 U.S. Dist. LEXIS 28609 (ED CA, March 6, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint that the prison's Religious Meat Alternative Program offers halal meat for diner, but only a vegetarian diet for breakfast and lunch.

In Williams v. DeJesus, 2015 U.S. Dist. LEXIS 29164 (ED VA, March 9, 2015), a Virginia federal district court upheld a prison's decision to ban an inmate from possessing The Satanic Bible.

In Hailes v. Free, 2015 U.S. Dist. LEXIS 29409 (SD OH, March 10, 2015), an Ohio federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 76127, June 3, 2014) and dismissed a Seventh Day Adventist inmate's complaint that he was ordered to report for snow duty even though he had religious accommodation papers excusing him. When he refused, he was placed in segregation.

In Hayles v. Taylor, 2015 U.S. Dist. LEXIS 29558 (MD GA, March 11, 2015) a Georgia federal magistrate judge dismissed without prejudice an inmate's conclusory allegation that while in disciplinary segregation he was denied access to religious services.

In Carmichael v. Aguilar, 2015 U.S. Dist. LEXIS 29990 (ED CA, March 11, 2015), a California federal magistrate judge dismissed a Muslim inmate's complaint over delays in implementing a prison halal diet.

Saturday, March 14, 2015

Amicus Brief Targets Scalia and Thomas In Linking Same-Sex Marriage and Campaign Finance Equality

Dozens of amicus briefs have been filed in Obergefell v. Hodges and its companion cases-- the same-sex marriage cases that are set for oral argument before the U.S. Supreme Court on April 28. (Links to all briefs from SCOTUS blog). One of the most interesting (full text) is the brief of the Liberty Education Forum (a non-profit organization with ties to the Log Cabin Republicans), filed March 6, which focuses on the special treatment that contributions by married couples receive under state campaign finance laws. For example, each spouse can make campaign contributions up to the individual limit, even though only one of them brings income into the household. The brief argues:

Respondents’ same-sex marriage prohibitions, when viewed together with their campaign finance laws, result in similarly situated couples having unequal rights to engage in the political process through political contributions. A state’s differential treatment with regard to core First Amendment rights violates the Fourteenth Amendment.

In a press release, Liberty Education Forum says that the brief is

targeted specifically at Justices Antonin Scalia and Clarence Thomas.... No two Justices on the Supreme Court have been more vocal about their opposition to curtailments of the First Amendment that exist because of restrictions on campaign contributions than Justices Scalia and Thomas.

BNA Daily Report for Executives (subscription required) reports on the brief.

Friday, March 13, 2015

Role of Rabbis In Israel Army Ceremonies Is In Dispute

Times of Israel reported yesterday on a controversy within the Israeli army over the role of rabbis at the swearing-in ceremony for new recruits. Currently the ceremony, held at the Western Wall, features the unit commanders, the military rabbi and the rabbi of the unit. However, the IDF's chief education officer Avner Paz-Tzuk has written the Manpower Directorate saying that a number of soldiers-- presumably secular ones-- have expressed “resentment” over “the centrality of military rabbis” in the ceremony. Paz-Tzuk recommended that a commander, rather than a rabbi, read portions of the Bible at the swearing-in ceremony. Defense Minister Moshe Ya’alon disagrees with the recommendation that reflects long-standing tensions between the Education Corps and the IDF rabbinate over educational roles in the military.

Germany's Constitutional Court Invalidates Blanket Ban On Teachers' Wearing Hijabs

Germany's Federal Constitutional Court today invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching. Here is Deutsche Welle's summary of the decision in a suit brought by two teachers:

State authorities had decided that the teachers were violating the law, which in North Rhine-Westphalia forbids any religious symbols or actions that are considered a threat to harmonious co-existence at schools. One of the teachers had been dismissed from her job, while the other received a written warning.

The high court ... has now decided that any such symbol or action must pose a "concrete danger" to be forbidden under the law, saying that the ban was an intrusion on the teachers' self-identity. The ruling means, however, that headscarves could theoretically still be banned in certain individual cases where such a "concrete" danger is considered to exist. This could occur, for example, if a Muslim teacher wearing a headscarf were to cause frequent altercations among pupils...

The ruling on Friday also overturned another clause in North Rhine-Westphalian law that excepted manifestations "of Christian and Western educational and cultural values or traditions" at schools from the otherwise complete ban on blatant demonstrations of religious affiliation.

The court decided that this exception constituted a privileging of Christian symbols over those of other religions, which would go against the ban on discrimination on religious grounds that is enshrined in the German constitution.

[Thanks to Tom Rutledge and Claudia Haupt for the lead.]