Religion Clause

Monday, October 12, 2015

Marine Base Will Not Remove Sign Calling For God's Blessing

AP reported yesterday that the commander of the Marine corps base on Oahu, Hawaii has rejected a call by the Military Religious Freedom Foundation that the military move or take down a sign put up after 9-11 which reads: "God bless the military, their families and the civilians who work with them." MRFF head Mikey Weinstein says the group represents 72 marines on the base, and wants the sign removed or moved to the grounds of the base chapel. Alternatively Weinstein proposes that other signs be put up alongside this one, reading, for example, "Goddess bless...." MRFF says that the current sign violates the Establishment Clause.

Recent Articles of Interest

From SSRN:

Anthony Michael Kreis, Marriage Demosprudence, (University of Illinois Law Review, Forthcoming).
Jeff Berryman, Intersections of Canadian Common Law Doctrine and the New Multiculturalism, (March 1, 2014).
Richard W. Garnett, The Freedom of the Church: (Toward) an Exposition, Translation, and Defense, (Micah Schwartzman, Chad Flands, and Zoe Robinson, eds., The Rise of Corporate Religious Liberty (Oxford University Press, 2015), Forthcoming).
Ram Rivlin, Religious Norms between Ethics and Law: The Death and Afterlife of Jewish Divorce Law, (Oxford Journal of Law and Religion 2015, Forthcoming).
Gila Stopler, Biopolitics and Reproductive Justice: Fertility Policies between Women's Rights and State and Community Interests, (18(2) University of Pennsylvania Journal of Law and Social Change, 169-207 (2015)).
Greg Taylor, Austria's Law Against Defamation of Religion: A Case Study, (Journal of Law and Religion, Vol. 30, No. 1, 2015).
Ruth Lapidoth, Jerusalem and the Peace Process, (October 7, 2015).
Patrick Parkinson, Can Marriage Survive Secularization?, (University of Illinois Law Review, 2015, Forthcoming).
Catherine Powell, Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality, (84 Fordham Law Review 69 (2015)).

From SmartCILP:

David L. Faigman, Where Law and Science (and Religion?) Meet, 93 Texas Law Review 1659-1679 (2015).
Mark Strasser, Old Wine, Old Bottles, and Not Very New Corks: On State RFRAs and Free Exercise Jurisprudence, 34 St. Louis University Public Law Review 335-366 (2015).
Allan W. Vestal, The Lingering Bigotry of State Constitution Religious Tests, 15 University of Maryland Journal of Race, Religion, Gender & Class 55-120 (2015).
John Witte, Jr., Why Two In One Flesh? The Western Case for Monogamy Over Polygamy, 64 Emory Law Journal 1675-1746 (2015).
Symposium. Religious Accommodation in the Age of Civil Rights. Foreword by Martha Minow; articles by Mary Anne Case, Richard W. Garnett, Malick W. Ghachem, Michael A. Helfand, John D. Inazu, Andrew Koppelman, Melissa Murray, Steven D. Smith and Nomi Maya Stolzenberg. 88 Southern California Law Review 453-767 (2015).

Sunday, October 11, 2015

Promissory Estoppel May Prevent Christian Camp From Firing Employee For Living With Her Boyfriend

Trehar v. Brightway Center, Inc.,, (OH App., Oct. 2, 2015), is a suit by a former employee of a Christian youth sports camp who was fired for moving in with with her boyfriend. Plaintiff Jennifer Trehar whose job involved writing grant proposals and engaging in various sorts of promotional work was told in a letter from the camp's board: "We simply cannot reconcile our affections and appreciation for you with our belief that living together outside marriage is forbidden by the Scriptures." In a unanimous decision the appeals court reversed the trial court's grant of summary judgment to the camp, finding that Trehar sould be able to move ahead with her claim of promissory estoppel:

Griffin is Brightway’s president and CEO. He stated that his employees should rely on his statements and promises. In construing the evidence in Trehar’s favor, reasonable people could conclude that Trehar’s boss and the president of the company induced Trehar to believe that no adverse employment action would result from her move.

Columbus Dispatch reports on the decision.

Recent Prisoner Free Exercise Cases

In Christian Separatist Church Societyy of Ohio v. Ohio Department of Rehabilitation & Corrections, 2015 U.S. Dist. LEXIS 134125 (SD OH, Oct. 1, 2015), an Ohio federal magistrate judge recommended allowing various individual inmates to proceed with their complaint that by having only one recognized Protestant organization, prison officials have infringed their free exercise rights under the 1st Amendment and RLUIPA. Plaintiffs claim their separatist beliefs are theologically distinct and inimical to those of the recognized group. However the church itself lacks standing to bring a RLUIPA claim. Various other claims were also recommended for dismissal.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 134656 (D CO, Oct. 1, 2015), a Colorado federal district court adopted in part a magistrate's recommendation (2015 U.S. Dist. LEXIS 96185, July 23, 2015), a Colorado federal district court dismissed complaints by a Messianic Jewish inmate regarding the preparation of kosher food and date for observing Passover.

In Etterson v. Newcome, 2015 U.S. Dist. LEXIS 135670 (ED VA,Oct. 5, 2015). a Virginia federal district court allowed a former inmate to move ahead with his 1st Amendment damages claim for having been wrongly taken off the Ramadan menu.

In Ishmael v. Oregon Department of Corrections, 2015 U.S. Dist. LEXIS 136071 (D. OR, Oct. 6, 2015), an Oregon federal district court dismissed a suit by an African Hebrew Israelite of Jerusalem inmate who complained that he was not allowed to use his religious name on mail and correspondence.

In Holmes v. Godinez, 2015 U.S. Dist. LEXIS 137388 (ND IL, Oct. 8, 2015), an Illinois federal district court allowed inmates to move ahead with a class action complaining, among other things, that the free exercise and RLUIPA rights of hearing impaired inmates are infringed by inadequate accommodation at religious services.

In Barrett v. Peters, 2015 Ore. App. LEXIS 1203 (OR App., Oct. 7, 2015), an Oregon appellate court allowed an Oregon inmate incarcerated in Florida under the Interstate Corrections Compact to move ahead with his habeas corpus action complaining that he is not allowed to wear the "Celtic tonsure" hair style required by his Glefiosa religion in violation of the Oregon Constitution.

Saturday, October 10, 2015

Al-Queda Executes 4 For Witchcraft In Yemen

Al Jazeera reports that in the town of Mayfaa in southeastern Yemen, Al-Queda today distributed and posted flyers saying that the group has killed four local men suspected of witchcraft and sorcery. The handout says in part:

We have implemented Allah's ruling against them, which is the death sentence, We call upon all Muslims to cooperate with us against this widespread depravity,

Al-Queda controls this area in Yemen.

Federal Prisons Will No Longer Serve Pork Products

The Washington Post reported yesterday that federal Bureau of Prisons is removing all pork products from its national menu for federal inmates. Pork producers are distressed at the decision that was based on a survey of inmates' food preferences, as well as on cost factors.However Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, predicted that the decision "will stoke the fires of Islamophobia based on the usual conspiracy theories." [Thanks to David Orinoff for the lead.]

Friday, October 09, 2015

Anti-Muslim Rallies Planned In U.S. Cities This Weekend

TPM reports that anti-Muslim rallies may be held this weekend in 20 or more U.S. cities. The rallies, organized through a Facebook page called "Global Rally for Humanity," were timed to coincide with the 20th anniversary of the Washington, D.C. Million Man March. According to TPM:

"Global Rally for Humanity" appears to have ties to John Ritzheimer, who rose to prominence among anti-Muslim activists when he organized a protest and "Draw Mohammad" contest in May in Phoenix. Known for his bizarre antics, he recently attracted the attention of U.S. Capitol Police when he vowed in an open letter to arrest Sen. Debbie Stabenow (D-MI) over her support for the Iranian nuclear deal.

Detroit Free Press reports on the rally planned in the heavily Muslim city of Dearborn, Michigan. The Facebook page for the Dearborn rally says that the organizers are open gun carry advocates, and it urges individuals to bring firearms to the rally. The rally is planned near Dearborn city hall after organizers did not file soon enough to get a permit to demonstrate outside the Islamic Center of America, a large Dearborn mosque.

CAIR issued a statement this week reading in part: "Many of these planned rallies may not take place, or they may consist of only a handful of people shouting slurs at worshipers. But given the recent endorsement of Islamophobia by national public figures, it would only be prudent for mosque and community leaders to prepare for any eventuality." In a second statement later in the week, CAIR asked all presidential candidates to repudiate the hate rallies and urged them to visit a mosque the weekend to show moral support for the Muslim community.

Congress Reauthorizes USCIRF For 4 Years In Bill Requiring New Strategic Plan

Yesterday Congress sent to the President for his signature S. 2078, United States Commission on International Religious Freedom Reauthorization Act of 2015 (full text). The bill extends the life of USCIRF until September 2019, funds it at $3.5 million for each year and creates a compromise arrangement on Commission reforms. As reported by World News Service:

The bill is close to a clean reauthorization and does not include the reforms [Sen. Marco] Rubio sought in his bill. It also does not include the reforms Sen. Dick Durbin, D-Ill., wanted, elements of which the international religious freedom community said would act as “poison pills” to the commission.

Instead, the legislation gives the commission 60 days to craft a strategic plan and conduct an organizational review. A unanimous commission vote (or a majority of both party appointees) would enact any proposed changes – such as designating ISIS, Boko Haram, and other non-state actors as “countries of particular concern.”

[Thanks to Blog From the Capital for the lead.]

Malaysia's Federal Court Rules On Procedural Grounds Against Transgender Challenge To State Law

As previously reported, last November a 3-judge appeals court panel in the Malaysian state of Negeri Sembilan struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. The state appealed the ruling to Malaysia's Federal Court which yesterday set aside on procedural grounds the appeals court's November ruling. According to Free Malaysia Today, a five-judge panel of the Federal Court ruled that the challenge to the statute should have been decided initially by the Federal Court, rather than being brought to it on appellate review.

Fitness Club Sued For Barring Long Skirts Worn For Religious Reasons

New York Jewish Week and The Jewish Voice report on a lawsuit filed in New York federal district court last week by an Orthodox Jewish woman charging the Lucille Roberts fitness chain with religious discrimination. The women's-only chain of gyms barred 25-year old Yoserfa Jalal from wearing a fitted knee-length skirt while working out. When Jalal, a teacher, insisted on wearing the skirt in compliance with Orthodox Jewish rules of modesty, the chain revoked her membership. Lucille Roberts says: "Our decision to uphold a dress policy, consistent with industry standards and equipment manufacturers, is not an attempt to hinder any personal religious beliefs."

Oregon Supreme Court Upholds Convictions of Faith Healing Parents For Criminal Negligence

In State of Oregon v. Hickman, (OR Sup. Ct., Oct. 8, 2015), the Oregon Supreme Court unanimously upheld the second degree manslaughter convictions of Dale and Shannon Hickman. The Hickmans, members of the Followers of Christ Church, were charged with criminal negligence in the death of their prematurely-born seriously ill infant son. The parents had prayed for their son and anointed him with olive oil instead of seeking medical help for him when, nine hours after he was born, he developed severe respiratory problems. In upholding the convictions, the Supreme Court said:

In this case, the only issue before us is whether ... the state was required by free exercise principles to prove that defendants acted or failed to act with a knowing, rather than criminally negligent, mental state. We hold that it was not.

Oregon Live reports on the decision. [Thanks to Charles Hinkle for the lead.]

Thursday, October 08, 2015

Court Says White Supremacist Movement May Qualify As A "Religion"

In Hale v. Federal Bureau of Prisons, (D CO, Sept. 30, 2015), a Colorado federal district court held that the White supremacist Creativity Movement may qualify as a "religion" for purposes of the First Amendment and RFRA. In a lawsuit brought by inmate Reverend Matt Hale, who for ten years was the “Pontifex Maximus,” or “greatest priest” of the Church of the Creator, the court said in part:

Mr. Hale alleges that “Creativity addresses all the ultimate questions of life, including the meaning of life and its purpose,” which, for Creators, is to halt the mixing of races and devote themselves to the salvation and survival of the white race. Creativity “teaches its adherents to build their minds, to eat salubriously, to create a society conducive to their mental and physical well-being, and to preserve a pure and natural environment,” and thus imposes duties on its members. Mr. Hale alleges that Creators celebrate certain holidays, perform ceremonies, repeat daily affirmations, follow a prophet, and direct members to proselytize, all of which are done with the idea that these practices allow a follower to achieve salvation. True, the Complaint does not identify any metaphysical components of Creativity, and it characterizes Creativity as having a single secular goal – the “achievement of white racial immortality.” But, however bigoted as Creativity’s beliefs may appear, the Complaint states facts which, taken as true, suggest that Creativity addresses the purpose for life and means of salvation, imposes duties on its members, and denotes certain holidays and religious ceremonies to be celebrated or performed.

In the lawsuit, Hale complains of various administrative restrictions on his ability to practice his religion while in prison. The court allowed him to move forward only on two claims-- mail bans and refusals to provide a religious diet.

New York Subways Must Run Satiric Ads For Film Portraying Muslim Comedians

In Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, Oct. 7, 2015), a New York federal district court issued a preliminary injunction requiring the Metropolitan Transportation Authority to display plaintiff's advertising campaign for its film The Muslims Are Coming! in the New York City subway system. The film is the story of a group of American Muslim comedians who travel across the country performing stand-up comedy. The advertising posters use comedic satire to attract the reader's attention and refer the reader to the film's website. For example, one ad reads: "The Ugly Truth About Muslims: Muslims have great frittata recipes."

After initially accepting the ads, the MTA later refused them under a revised policy that barred ads which are political in nature. The policy change came in response to a court order requiring the MTA to accept an anti-Muslim ad from the American Freedom Defense Initiative. (See prior posting.) In yesterday's decision, the district court held that VQP's proposed ads are commercial, and not political in nature:

...[T]o "prominently or predominately" advocate or express a political viewpoint, an advertisement must do far more than refer to a subject about which there is a lack of national consensus.

The court went on to hold that the MTA's determination that VQP's ads were political is not a viewpoint neutral decision:

To suggest, as the MTA's actions do, that an advertisement for the Republican presidential debate with photographs and quotes from candidates is somehow less "political" than humorous statements about the Muslim population's dislike of both terrorism and insufficient bagel schmear is, quite clearly, not viewpoint neutral.

Wall Street Journal reports on the decision. Muslim Advocates' press release on the decision also includes a link to the original complaint in the case.

6th Circuit Reopens Settlement of Suit Challenging Kentucky's Placements In Faith-Based Facilities

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Oct. 6, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision essentially reopened an Establishment Clause lawsuit that had been settled after 14 years of litigation. At issue was the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. A Kentucky federal district court entered an order incorporating terms of a settlement between the parties and held that Sunrise had no standing to object to the settlement between Kentucky and plaintiffs challenging the funding. (See prior posting.) The 6th Circuit however held that the district court's dismissal was effectively a consent decree, and before entering a consent decree the court is required to allow anyone affected by the decree to present evidence and have its objections heard. It emphasized that

the consent decree singles out Sunrise by name for special monitoring by the ACLU and Americans United; and in doing so, Sunrise argues, the decree subjects Sunrise to unique reputational harm. Thus, the decree denies Sunrise a chance to clear its name—and instead, over Sunrise’s objection, imposes the very reputational harm that Sunrise sought to avoid by means of 15 years of litigation.

Judge Black dissented, saying: "After fourteen years of contentious litigation, the district court judge helped effectuate settlement of this case. His actions should be entitled to our deference." Courthouse News Service reports on the decision.

Pakistan's Supreme Court Upholds Death Sentence For Assassin Angered Over Blasphemy

Yesterday a 3-judge panel of Pakistan's Supreme Court upheld the death sentence that had been imposed on Mumtaz Qadri, a former elite force guard who in 2011 killed Salmaan Taseer, governor of Punjab, Pakistan's largest province. Qadri acted because of Taseer's support for a pardon for Aasia Bibi, a Christian woman who had been sentenced to death for blasphemy. (See prior posting.) According to the Wall Street Journal:

Lawyers for the defendant, Mumtaz Qadri, had argued he should be treated with leniency because he acted to defend the honor of the Prophet Muhammad. But the judges sided with prosecutors who said Mr. Qadri had committed a straightforward, premeditated murder.

The Supreme Court also reinstated Qadri's conviction for violation of the country's anti-terrorism laws. A backer of Qadri reacted to the decision, saying:

This is going to cause anarchy in the country, because the followers of the Prophet, peace be upon him, are very upset. They have imposed the white man’s law on us.

Indiana High School Sued Over Upcoming Christmas Pageant

The ACLU and Freedom From Religion Foundation filed a federal lawsuit yesterday challenging as an Establishment Clause violation an Elkhart, Indiana public high school's annual "Christmas Spectacular." The complaint (full text) in Freedom From Religion Foundation v. Concord Community Schools, (ND IN, filed 10/7/2015) alleges:

Each winter for the past several decades, the High School has staged a “Christmas Spectacular,” a series of performances taking place at the High School in which students perform various holiday songs and to which other students, family members, and members of the community are invited to attend. While the holiday songs chosen for the Christmas Spectacular vary somewhat each year, the Christmas Spectacular always closes with an approximately 20-minute live depiction—also by students of the High School—of the story of the birth of Jesus. This event is set to be staged again in early December of 2015....

The FFRF press release announcing the filing of the lawsuit includes a link to a video of last year's performance.

Recent Prisoner Free Exercise Cases

In Utt v. Brown, 2015 U.S. Dist. LEXIS 131347 (ED NC, Sept. 29, 2015), a North Carolina federal district court permitted a Wiccan inmate to move ahead with his free exercise claims regarding corporate worship, feast participation, and practice of his religion outside of the areas specifically designated for religious worship. The case was referred for a settlement conference.

In Hatcher v. Roller, 2015 U.S. Dist. LEXIS 131192 (ED TN, Sept. 28, 2015), a Tennessee federal district court dismissed an inmate's request for a place of solitary and silence in the prison for him to pray to his God "alone and in peace."

In Goode v. Farrell, 2015 U.S. Dist. LEXIS 132208 (ED PA, Sept. 30, 2015), a Pennsylvania federal district court dismissed a complaint by a pre-trial detainee seeking to stop officials from using space previously designated for Muslim religious services as a clothing storage space.

In Thomas v. Waugh, 2015 U.S. Dist. LEXIS 132308 (ND NY, Sept. 30, 2015), a New York federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 133859, July 24, 2015) and allowed a Jewish inmate to move ahead with his complaint that he was barred from wearing a larger head covering than the typical Jewish yarmulke. He claims the standard-size yarmulke will not fit over his hair.

In Suggs v. Maxymillian, 2015 U.S. Dist. LEXIS 132300 (ND NY, Sept. 30, 2015), a New York federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 133443, Sept. 14, 2015) and allowed Sexual Offender Treatment Program detainees to move forward on claims by a Muslim and by a follower of Neopaganism that they face limitations on their ability to practice their religions and gain access to appropriate clergy.

In Lopez v. Cipolini, 2015 U.S. Dist. LEXIS 133799 (SD NY, Sept. 30, 2015), a New York federal district court held that an inmate adequately stated an equal protection claim in her complaint that a corrections official prevented her from attending the two religious services because of her hair and because of her sexuality. The court dismissed plaintiff's free exercise claim without prejudice.

Wednesday, October 07, 2015

School Prayer Lawsuit Settled

The Freedom From Religion Foundation announced Monday the settlement of its lawsuit against the Emanuel County, Georgia school system. (See prior posting.) The suit challenged prayer in kindergarten and first grade classrooms and the mistreatment of students who objected. FFRF says it is dismissing its suit after the county implemented teacher training on the obligation not to promote religious beliefs in the classroom and paid damages to the complaining family.

Suit Says Proposed Annexation By Hasidic Town Violates Establishment Clause

As reported by the Wall Street Journal, in a lawsuit filed this week in state court in New York, an environmental group charges that the proposed annexation of 507 acres of land (and an alternative proposal to annex 164 acres) in the town of Monroe by the predominantly Hasidic village of Kiryas Joel violates the Establishment Clause. The 89-page complaint (full text) in Preserve Hudson Valley v. Town Board of the Town of Monroe, (NY Sup Ct Westchester County, filed 10/5/2015) alleges, in addition to challenges to the environmental analysis, that:

The Town Board’s and the Village Board’s determinations on the Annexation Petitions would unconstitutionally cede electoral territory and political power to a political subdivision whose franchise is, in effect, determined by a religious test. See Board of Education of Kiryas Joel Village School District v. Grument, et al. ..., 512 U.S. 687, 114 S. Ct 2481 (1994) (holding that legislative action that created a separate school district solely to serve the Village’s “distinctive population” impermissibly delegated political power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”). The unconstitutional result posed by the Annexation Petitions, in and of itself, renders their form and content noncompliant with Article 17 of the General Municipal Law....

The lawsuit, growing out of petitions by Hasidic Jewish residents of Monroe to have their property annexed by Kiryas Joel, also raises other challenges to the annexation attempt. In a separate lawsuit filed last week, ten municipalities also challenged the annexation.