Suit Challenging Prayer During School Free Time Dismissed By Parties

As reported today by the Colorado Springs Gazette, a Colorado federal district court on June 3, upon motion by plaintiffs (full text), dismissed a lawsuit (see prior posting) against Colorado Spring's Academy School District #20.  At issue was students' rights to gather together for prayer and religious discussion during free periods. The parties disagree however over how to characterize the events leading up to the dismissal.  Alliance Defending Freedom in a press release says the school backed off its policy of barring prayer and religious discussion during lunch periods, allowing it only before and after school.  The school says that the issue was never lunchtime, but instead whether students could gather during so-called Seminar period, an open period during the day when students could engage in other activities. For the last three years, student Chase Windebank who recently graduated has been leading an informal religious gathering during Seminar time and attendance had increased to over 90 students. The school district has now cancelled the Seminar period entirely for the upcoming school year, essentially eliminating the issue of whether religious activities are permitted during that time.

New Manual Suggests Strategies For Churches To Fend Off LGBT Lawsuits

Baptist Press reported yesterday:

The Ethics & Religious Liberty Commission (ERLC) and Alliance Defending Freedom (ADF) have published "Protecting Your Ministry," a legal manual for Southern Baptist churches, schools and ministries. The 44-page booklet is designed to equip SBC and other evangelical churches and institutions with legal protection against sexual orientation and gender identity lawsuits.

The manual includes checklists to guide Christian institutions on maximizing their religious liberty protections under the law and maintaining their freedom to proclaim the Gospel of Jesus. It also provides sample documents -- such as a membership agreement, facility use policy and article for a statement of faith -- to assist churches and other ministries.

The manual is available as an e-book free of charge from the ERLC website.

Plaintiffs May Proceed On Some Claims Charging Anti-Hasidic Motivation In Obstructing Construction

In Bloomingburg Jewish Educational Center v. Village of Bloomingburg, New York, (SD NY, June 9, 2015), a New York federal district court allowed plaintiffs to move ahead with some of their claims that local governments and public officials of the Village of Bloomingburg and the Town of Mamakating took various actions to prevent Hasidic Jews from moving into the area.  The court held that two of the plaintiffs

have stated plausible claims for relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 against [various] defendants ... based on these defendants’ alleged roles in stymying the conversion of a property in Bloomingburg into a mikvah, a bath used by Hasidic Jews for ritual immersion and purification.  Plaintiff Sullivan Farms II, Inc. has stated plausible claims for relief under § 1983, § 1985, and the FHA ...  against [certain] defendants based on these defendants’ alleged roles in obstructing the completion of a housing development project known as Chestnut Ridge.

A number of other of plaintiffs' claims were dismissed.  AP reports on the decision.

Challenge To City's Removal of Cross Dismissed Because of Improper Plaintiffs

In Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., June 9, 2015), a Michigan trial court dismissed a suit that was seeking to require city council to reverse its earlier decision to limit access to Dewey Hill and convert the 48-foot cross on it into a Coast Guard anchor. (See prior posting.) Without getting to the merits of plaintiffs' free speech and religious discrimination claims, the court found that none of the plaintiffs, as named, were proper.  It held that plaintiff "Citizens of Grand Haven" did not qualify as an unincorporated voluntary association since it had no organizational form or decision-making process.  It was merely the group of people who had signed a petition.  The court went on to hold that the individual "John Doe" plaintiffs were not entitled to proceed anonymously.  The court applied a 5-factor test that had previously been developed by the courts for determining when proceeding under a pseudonym is appropriate. MLive reports on the decision.

UPDATE: On June 12, the lawsuit was refiled with named plaintiffs. (MLive 6/15).

FFRF Objects To Town Sign Reading "Jesus Welcomes You"

KETK News reports today that Freedom From Religion Foundation has written the Hawkins, Texas City Council objecting to a large sign apparently put up by the city on city land reading "Jesus Welcomes You To Hawkins." FFRF says the sign violates the Establishment Clause, and that even if the city leases out  the land on which the sign sits, this will not cure the violation. Hawkins, located in east Texas, has a population of 1,278.

Muslim Leaders In India Object To Required Yoga Sun Salutation In Schools

The Wall Street Journal reports today that Muslim leaders in India are complaining that schools in the states of Rajasthan and Madhya Pradesh are requiring students to learn yoga, including "surya namaskar"-- the sun salutation. Students are also required to chant "Om" or other Sanskrit verses that the All India Muslim Personal Law Board says are connected to the Hindu religion. Islamic law prohibits Muslims from bending before anyone other than Allah or God. The controversy comes as India prepares to celebrate the world's first International Day of Yoga next week. The All India Imam Organization says that yoga connected to  health rather than religion is fine so long as the sun salutation is not required.

Supreme Court GVR's Title VII Nursing Home Case After Abercrombie

Yesterday the U.S. Supreme Court remanded for reconsideration an employment discrimination case whose result may be impacted by the court's recent decision in EEOC v. Abercrombie & Fitch Stores.  In Norbach v. Woodland Village Nursing Center, Inc., (Sup. Ct. June 8, 2015), (order list). the Supreme Court granted certiorari, summarily vacated the 5th Circuit's judgment and remanded.  In the case, the 5th Circuit had dismissed a Title VII religious discrimination suit brought by a nursing home activities aide who 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 the aide's Jehovah's Witness religious beliefs. (See prior posting.)

Supreme Court Says Congress Overstepped Its Power In Enacting Jerusalem Passport Designation Law

Today the U.S. Supreme Court in Zivtofsky v. Kerry, (Sup. Ct., June 8, 2015), held 6-3 that Congress infringed on the President's power to recognize foreign countries when it enacted a law giving U.S. citizens born in Jerusalem the right to have "Israel" rather than Jerusalem listed in their passports as their place of birth. The majority, in an opinion by Justice Kennedy, held that the statute infringes the President's exclusive power to recognize foreign governments, saying in part:

Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.... As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition.

Justice Breyer filed a concurring opinion in which he said that he also believed that this posed a political question inappropriate for judicial resolution. Justice Thomas concurred in part and dissented in part, arguing that the statute "can be constitutionally applied to consular reports of birth abroad, but not passports."

Chief Justice Roberts, joined by Justice Alito, dissented arguing that the statute does not implicate the President's power to recognize foreign governments.  Chief Justice Roberts and Justice Alito also joined a dissent filed by Justice Scalia which argues that: "Under the Constitution ... Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem."

JTA points out that the three Jewish justices joined Kennedy's majority opinion. Times of Israel carries the reaction of various Israeli officials to the decision.

Obama Appoints Rabbi To Vacancy On Commission For Preservation of America's Heritage Abroad

Last Friday, President Obama announced his intention to appoint Rabbi Abba Cohen to the 21-member U.S. Commission for the Preservation of America’s Heritage Abroad.  One of the more obscure federal agencies, the Commission, which began operations in 1990, is tasked by the legislation creating it to identify and encourage the preservation of "those cemeteries, monuments,  and historic buildings located abroad which are associated with the  foreign heritage of United States citizens from eastern and central Europe, particularly those cemeteries, monuments, and buildings  which are in danger of deterioration or destruction..."  Rabbi Cohen is the Washington Director and Counsel for Agudath Israel of America,

British Employment Tribunal Vindicates Christian Woman Fired For Comments About Homosexuality

In Mbuyi v. Newpark Childcare (Shepherds Bush) Ltd., (Empl. Trib., June 4, 2015), a British Employment Tribunal in Watford held that Sarah Mbuyi, a 31-year old nursery assistant who was a Belgian national and and evangelical Christian, was the victim of religious discrimination when she was fired because of a conversation she had with a lesbian co-worker who was in a civil partnership. In the course of the conversation, Mbuyi told her co-worker that she believes homosexuality is a sin.  The conversation upset the co-worker sufficiently that she asked to be transferred to a different room where she would not be working with Mbuyi. The Tribunal concluded that under the circumstances the firing of Mbuyi was a disproportionate response.  The Tribunal said in part:

The respondent was not anti-Christian.... The issues in this case arose out of the claimant's belief that homosexuality is a sin.... It is a belief worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.  Whilst some may dispute those propositions, we are considering here the belief itself.  When, whether and how such belief maybe manifested, however, is one of the issues in this case, given the inherent interplay with the right not to be discriminated against because of sexual orientation.

The decision has been widely reported in the British media. (The Guardian, Mirror, Christian Concern, Christianity Today, National Secular Society).

Recent Articles of Interest

From SSRN:

• Danielle Weatherby, The Arkansas 'Mini-RFRA' is Bad Policy, (May 21, 2015).
• Tipu Salman Makhdoom, Politics of Religion: Ahmadis of Pakistan, (May 23, 2015).
• Jennifer Taub, Is Hobby Lobby a Tool for Limiting Corporate Constitutional Rights?, (Constitutional Commentary, Forthcoming).
• Masua Sagiv, Cultural Bias in Judicial Decision Making, (35(2) Boston College Journal of Law & Social Justice 229 (2015)).
• Eric Alan Isaacson, Free Exercise for Whom? -- Could the Religious-Liberty Principle that Catholics Established in Perez v. Sharp Also Protect Same-Sex Couples' Right to Marry?, (University of Detroit Mercy Law Review, Vol. 92, No. 1, 2015).
• Surabhi Chopra & Prita Jha, Front Matter for: On Their Watch: Mass Violence and State Apathy in India, (S. Chopra & P. Jha, eds, Three Essays Collective, 2014).
• Sherry F. Colb, Decoding 'Never Again', (Rutgers Journal of Law and Religion, Vol. 16, Spring 2015).
• Susannah William Pollvogt, Cleburne Not Romer: Objective versus Subjective Theories of Animus, (June 5, 2015).
• Joseph William Singer, We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom, (Boston University Law Review, Vol. 95, p. 929, 2015).

From SSRN (Religious Law):

• Daniel Pascoe, Is Diya a Form of Clemency?, (Boston University International Law Journal, 2016).
• Levi Cooper, Jewish Law, Hasidic Lore, and Hollywood Legend: The Cantor, the Mystic, and the Jurist, (Critical Analysis of Law 2, no. 2 (Fall 2015)).
• Hershey H. Friedman, ‘Let Justice Pierce the Mountain’: Morality, Ethics, and Law in the Talmud, (June 2, 2015).

From SmartCILP and elsewhere:

• Richard Chused, Dream Vignettes, 59 New York Law School Law Review 111-142 (2014/15).
• David A. Grenardo, Improving the Law School Classroom and Experience Through Prayer: An Empirical Study, 13 Ave Maria Law Review 71-120 (2015).
• Lee B. Burgunder, Can the PTO Find Its Way with Jesus?, 19 Marquette Intellectual Property Law Review 63-97 (2015).
• Rosalie Berger Levinson, Gender Equality vs. Religious Autonomy: Suing Religious Employers for Sexual Harassment After Hosanna-Tabor, 11 Stanford Journal of Civil Rights and Civil Liberties 89-119 (2015).
• Symposium. Religious Accommodation in the Age of Civil Rights. Introduction by Nomi Maya Stolzenberg and Douglas NeJaime; articles by Mark Tushnet, Ira C. Lupu, Thomas C. Berg, Frederick Mark Gedicks, Louise Melling and Elizabeth Sepper. 38 Harvard Journal of Law & Gender 1-233 (2015).
• Marta Kolankiewicz, Anti-Muslim Violence and the Possibility of Justice, (2015), (Dissertation from academia.edu)

Alabama Bill To Eliminate Marriage Licenses Dies In House Judiciary Committee

The Daily Caller reported yesterday that in Alabama SB 377 previously passed by the Alabama state Senate to eliminate marriage licenses died in the House Judiciary Committee last week. As previously reported, the bill which would have replaced issuance of licenses with marriage contracts entered into and recorded by the couple was seen in part as a way of dealing with religious objections by some probate court employees to issuing licenses to same-sex couples. One Republican member of the House Judiciary Committee who voted against the bill explained: "It didn’t make sense to me to make such a sweeping change about how we do marriage, just because of concern about some probate judges in a bit of a spot."

Recent Prisoner Free Exercise Cases

In Howard v. Joyce Meyer Ministries, 2015 U.S. Dist. LEXIS 70768 (ED WI, June 1, 2015), a Wisconsin federal district court allowed a Therevedan Buddhist inmate to move ahead with complaints that a picture of Jesus was displayed on the library wall; gift bags containing hygiene products included Bible passages; the TV channel carrying inmate announcements had Christian radio audio; and a religious necklace he ordered was classified as contraband.

In Williams v. Leonard, 2015 U.S. Dist. LEXIS 72070 (ND NY, June 4, 2015), a New York federal district court permitted an inmate to move ahead with RLUIPA claims for injunctive relief regarding length of pants and family participation in Eid el-Adha, but dismissed his equal protection and damages claims.

In Anderson v. Olson, 2015 U.S. Dist. LEXIS 72595 (WD WI, June 4, 2015), a Wisconsin federal district court dismissed a Nation of Islam inmate's claim that his free exercise rights were infringed when officials threw out his copy of the Qur'an along with other books of his that were over the limit for the number of allowable books, rather than mailing them out to his family. However he was allowed to proceed on his due process claim.

In Furnace v. Gipson, 2015 U.S. Dist. LEXIS 72570 (ED CA, June 3, 2015), a California federal magistrate judge recommended permitting an inmate who practiced Shetaut Neter to proceed with his claim that his free exercise rights were infringed when he was unable to change his name or obtain items needed to practice his religion, particularly an ankh, a prayer mat, cleansing oil, and various dried fruits.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 72721 (SD OH, June 4, 2015), an Ohio federal district court adopted a magistrate's recommendation (see prior posting) and permitted a Natsarim (Messianic Jewish) inmate to move to an evidentiary hearing on his request for a preliminary injunction regarding Sabbath services, recognition of plaintiff's religious calendar, sack meals on Friday night for the Sabbath and retaliation for filing grievances.

In Kalican v. Dzurenda, 2015 U.S. Dist. LEXIS 72917 (D CT, June 5, 2015), a Connecticut federal district court denied an inmate's motion for rehearing on his complaint that on one occasion he was barred from carrying his kufi to the dining hall in his pocket.

In Amaker v. Goord, 2015 U.S. Dist. LEXIS 73133 (WD NY, June 5, 2015), a New York federal magistrate judge held that absent accompanying physical injury, under federal statutory law an inmate cannot recover compensatory damages for denial of access to religious services while in special housing unit.  However the court awarded $1 nominal damages. It also granted plaintiff's request for a specific witness on a separate claim for punitive damages.

In Freeman v. Arpaio, 2015 U.S. Dist. LEXIS 71870 (D AZ, June 2, 2015), an Arizona federal district court dismissed with leave to amend using the proper court-approved form an atheist inmate's complaint that the Establishment Clause is violated by patriotic and religious songs that are played every morning and evening on the jail's televisions.

Court's Determination of Church's Voting Membership Upheld

In Fairfield Pentecostal Church v. Johnson, (LA App., June 3, 2015), a Louisiana state appeals court upheld a trial court's decision determining a church's voting membership for purposes of a special vote on whether to dismiss the pastor, saying in part:

The trial court determined at the hearing that none of the members on the original roll had been disfellowshipped; and it allowed another list of members gathered in November 2013 by Reverend Franks, who had kept no roll since his installment in 2010, to be counted toward the membership roll. In order to prevent the solicitation of new members for purposes of litigation, the trial court limited the membership to these two lists. We can think of no more equitable solution. 

Minneapolis Archdiocese Charged Criminally For Inadequate Responses To Priest Abuse

In a 44-page criminal complaint (full text) filed today, the state of Minnesota charged the Catholic Diocese of St. Paul and Minneapolis with contributing to the need for protection or services and contributing to the delinquency or status as a juvenile offender in connection with three separate victims of clergy sexual abuse. A civil complaint was also filed by the state.  As summarized by the Minneapolis Star Tribune:

The charges stem from the archdiocese’s oversight of former priest Curtis Wehmeyer, who is now serving a prison term for abusing two boys while he was pastor of Blessed Sacrament Church in St. Paul.

At a press conference, Ramsey County Attorney John Choi said:

Today we are alleging a disturbing institutional and systemic pattern of behavior committed by the highest levels of leadership of the archdiocese of St. Paul and Minneapolis over the course of decades.

By filing criminal charges and taking civil action, we are holding the archdiocese accountable for its failure to responsibly and meaningfully respond to numerous and repeated reports of troubling conduct by Curtis Wehmeyer.

The New York Times also reported on the filing of the six misdemeanor charges, each of which carries a maximum fine of $3000. By filing charges only against the Archdiocese, and not against individuals, the possibility of imposing the 1 year prison sentence that is also available on each charge disappears.

UPDATE: Here is an audio recording of the news conference in which the County Attorney announced the criminal charges. According to MPR News, he said that the investigation continues, but as of now prosecutors do not have sufficient evidence to charge any individual church officials criminally. [Thanks to Tom Rutledge for the update lead.]

Guam's Same-Sex Marriage Ban Struck Down

Pacific Daily News reports that in a ruling from the bench, Guam's chief federal judge this morning struck down the island's ban on same-sex marriage.  A written opinion is expected on Monday. Guam, a U.S. territory, is part of the 9th Circuit which has already held same-sex marriage bans unconstitutional. (See prior posting.) Guam is the last jurisdiction in the 9th Circuit to have its ban invalidated.

UPDATE: The full opinion in Aguero v. Calvo, (D Guam, June 8, 2015) is now available.

Nevada Enacts Expansive School Choice Legislation

As reported by the Las Vegas Review Journal, on Tuesday, Nevada Governor Brian Sandoval signed SB 302 (full text) creating an extensive school choice program. The legislature gave final passage to the bill last week.  Under the bill, the parents of a child who has attended public school for 100 consecutive days may move the child to a private school (including a religious school), a tutoring facility or to home schooling and have the state pay into an educational savings account for the student an amount equal to 90% (or 100% for low-income and disabled) of the statewide average basic support per pupil. Currently 100% of the statewide average is about $5700.  The funds may be used for tuition, fees, textbooks, tutoring, testing and transportation.  A student may also be moved part-time to another educational facility and spend part-time in public school, receiving a partial grant. The Reno Gazette Journal has more details of the legislation. Payments under the new law will start Jan. 1, 2016.

Opponents of the legislation argued in part that the bill is unconstitutional because it allows taxpayer money to be spent on religiously-oriented private schools. The Nevada Constitution, Art. 11, Sec. 10, provides: "No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose."

9th Circuit: State AG Can Require Disclosure of IRS Form 990 List of Donors

In a decision handed down early last month, the U.S. 9th Circuit Court of Appeals upheld California's requirement that in order to solicit tax deductible contributions in the state, a charity or other non-profit must file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors.  In Center for Competitive Politics v. Harris, (9th Cir., May 1, 2015), the court held that the organization challenging the requriement had not shown that its donors would experience threats or harassment because of the disclosure requirement.  It also rejected the argument that Congress had intended to protect the privacy of Schedule B information. BNA Daily Report for Executives (subscription required) reported on the decision this week.

7th Circuit Keeps RLUIPA Suit Against Chicago Alive

In World Outreach Conference v. City of Chicago, (7th Cir., June 1, 2015), the U.S. 7th Circuit Court of Appeals breathed new life into a RLUIPA case that has been in litigation for 9 years. The court reversed the district court's grant of summary judgment to the city of Chicago as to claims against the city for damages because of delays in granting licenses to World Outreach so it could operate a former YMCA building for its religious purposes. World Outreach argued it lost some $591,000 that it could have made by housing Hurricane Katrina evacuees in the building. The court's opinion by Judge Posner included comments about the power of aldermen in Chicago politics.  Judge Cudahy concurred with one of the shortest and most cryptic opinions ever:

Unfortunately; and I think the opinion must be stamped with a large “MAYBE.”

(See prior related posting.) RLUIPA Defense blog reports on the decision.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child's religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially "acknowledged" by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.