Religion Clause

Thursday, November 12, 2015

Maine's AG Sues To Enjoin Anti-Abortion Protester

Maine's Attorney General has recently filed a civil suit against an anti-abortion protester, seeking to enjoin him from coming within 50 feet of Portland's Planned Parenthood clinic and seeking to impose a $5000 civil penalty on him. The complaint (full text) in State of Maine v. Ingalls, (Super Ct., filed 10/30/2015), alleges that Brian Ingalls, a regular protester, violated provisions of Maine law that prohibit interfering with constitutional rights as well as a provision barring intentional interference with the delivery of health services by making noise that can be heard within the building of a health care provider. Ingalls was arrested after he ignored police warnings and continued to yell toward Planned Parenthood's second floor examination and counseling rooms about murdering babies, aborted babies' blood, and Jesus. The Portland Press-Herald says that this is the first suit of its kind to be filed in the state.

In England, Couple Sentenced To Prison In Faith Healing Death of Their Daughter

In England yesterday, a court in Nottingham sentenced Brian and Precious Kandare to nine and one-half and eight years respectively in the faith healing death of their 8-month old daughter. According to the Wolverhampton Express & Star, the couple were members of the Apostolistic Church of God. The husband was a pastor in the church. Despite some nursing training on the part of the mother, the couple believed that evil spirits were causing their infant daughter not to thrive. Instead of seeking medical help, they relied on ritual and prayer in accordance with the church's teaching. They ignored advice to give their daughter vitamin supplements, missed appointments for health check ups, and took the daughter to a faith healer as her condition worsened. The daughter died of severe malnutrition.

Wednesday, November 11, 2015

European Court Rejects Appeal of Conviction For Comedy Performance Promoting Holocaust Denial

The European Court of Human Rights yesterday held inadmissible (i.e. dismissed at a preliminary stage as incompatible with the European Convention on Human Rights) the appeal of a conviction by a French court of a comedian charged with publicly directing insults at a person or group of persons on account of their origin or of belonging, or not belonging, to a given ethnic community, nation, race or religion. M'Bala v. France, (ECHR, Nov. 10, 2015) (full text of decision in French) (Press Release in English) involves a comedian who at the end of a show in Paris invited a well-known Holocaust denier onto stage to receive a "prize for unfrequentability and insolence." According to the Court's press release:

The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew” – who thus played the part of a Jewish deportee in a concentration camp....

In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10 (freedom of expression) of the European Convention on human rights, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the European Convention.

Times of Israel reports on the decision. [Thanks to Paul de Mello for the lead.]

Day Care Teachers Tell EEOC Their Firing Over Treatment of Transgender Child Was Religious Discrimination

At a news conference yesterday, high-profile Houston, Texas attorney Andy Taylor said that he has filed a discrimination complaint with the EEOC on behalf of the manager of a day care center who says she was fired because of her treatment of a 6-year old transgender child, and on behalf of her co-worker who was also fired. As reported by KPRC News and the Houston Chronicle, Christian author Madeline Kirksey was fired from her Children's Lighthouse Learning Center position after she refused to comply with the instructions of the girl's male same-sex parents who said that the child, who had enrolled at the beginning of the year as a girl, should now be treated as a boy and called by a new masculine name. Kirksey said that her religious beliefs made her approval of the change impossible. She also contended that she had a duty to protect the child from possible bullying, and objected to the change being made without parents of others in the class first being informed. At the press conference, attorney Taylor said in part:

To inflict upon a little 6-year-old girl the heavy decision of her sexual identity is nothing short of child abuse..... Can you only imagine the reaction of a couple of dozen 6-year-olds when they learn that Sally is all of a sudden Johnny? They may think this is a cruel game of opposite day. And are we going to have little girls running into boys' restrooms and little boys running into girls restrooms?

A spokesman for the Learning Center said that Kirksey and her co-worker were fired for other reasons and that their attorneys are misrepresenting the facts of the case.

Scientology Cannot Get Dismissal of Harassment Suit Under Texas Anti-SLAPP Statute

In Sloat v. Rathbun, (TX App., Nov. 6, 2015), a Texas appellate court held that the Church of Scientology and its officials cannot invoke the Texas Citizens Participation Act (TCPA) to obtain dismissal of a lawsuit against them alleging intentional infliction of emotional distress, invasion of privacy and tortious interference with contract. TCPA is designed to allow rapid dismissal of unmeritorious lawsuits challenging individuals' exercise of their rights of speech, petition or association. Here plaintiff, the wife of a former high ranking Scientology official who spoke out against Scientology, claims that the Scientology defendants subjected her to relentless abuse, harassment and surveillance. The court held that defendants have not shown that the alleged activities relate to the exercise of free speech or the rights of association or petition:

[With one exception] the Scientology Defendants do not directly address the specific conduct Rathbun complains of, which includes following her while she went to and from work, shopping, out to dinner with friends, and walking her dog. Nor do they explain how alleged visits to Rathbun’s family members, friends, and coworkers during which they allegedly gave warnings about Rathbun’s personal safety while married to Marty Rathbun, constitute conduct covered by the TCPA. Moreover, other than deny having done so, the Scientology Defendants do not address Rathbun’s allegations that they sent a sex toy to her at work and sent flowers with a “romantic” message purportedly from her to a female co-worker.

Courthouse News Service reports on the decision.

Tuesday, November 10, 2015

Texas AG Opinion OK's "In God We Trust" On Police Cars

Texas Attorney General Ken Paxton last week issued Opinion No. KP-0042 (Nov. 4, 2015) concluding that a police department or sheriff's office may display the national motto, "In God We Trust," on its patrol cars without violating the Establishment Clause. The Attorney General's Opinion says in part:

[D]isplaying "In God We Trust" on police vehicles is a passive use of a motto steeped in our nation's history that does not coerce Citizen approval or participation.

AP reported on the Opinion.

Supreme Court Denies Review Of California Donor Disclosure Law

The U.S. Supreme Court yesterday denied certiorari in Center for Competitive Politics v. Harris, (Docket No. 15-152, cert. denied 11/9/2015). (Order List). In the case, 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 a non-public annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. (See prior posting.) AP reports on the Supreme Court's action.

British Employment Tribunal: Church of England Can Refuse To License Clergy Who Have Entered Same-Sex Marriage

In Pemberton v. Inwood, (Empl. Trib., Oct. 28, 2015), a British Employment Tribunal held that the Church of England had not violated the Equality Act when it refused to grant Rev. Jeremy Pemberton an Extra Parochial Ministry License that would qualify him to be appointed as a chaplain at the Sherwood Forest Hospitals. The license was denied because Pemberton had entered into a same-sex marriage in contravention of Church of England doctrine. The Guardian last week reported on the decision. [Thanks to Law & Religion UK for the lead.] [Corrected-- an earlier version of this post had the parties reversed.]

Court Confirms Reorganization Plan of Milwaukee Archdiocese

The Milwaukee Journal-Sentinel reports that yesterday U.S. Bankruptcy Judge Susan V. Kelley confirmed the bankruptcy reorganization plan of the Archdiocese of Milwaukee. The Archdiocese filed for bankruptcy in 2011 under the pressure of clergy sex abuse claims. Yesterday's reorganization plan is summarized by the Wall Street Journal:

The terms of the settlement divide nearly 600 abuse victims into separate groups. About 350 victims will share the bulk of the $21 million settlement, and about another 100 victims will each receive $2,000, court papers show. About 120 remaining victims, who had previously settled with the archdiocese or otherwise didn't qualify for the settlement, won’t receive any monetary compensation. It also provides a total of $250,000 for victims who come forward in the future, plus $500,000 from the archdiocese’s parishes to provide therapy for victims in any group.

Over $20 million in legal fees have been run up during the protracted bankruptcy proceedings. Fox News reprints a statement from the Archdiocese on the approval of the plan and a letter sent to Pope Francis on behalf of the first victims to publicly come forward-- deaf survivors who were abused at the St. John's School for the Deaf.

Appellant In Contraceptive Mandate Case Creates "Novena To Reverse HHS Mandate"

As previously reported, last week the U.S. Supreme Court granted certiorari in seven cases brought by various religious non-profits challenging the Obama Administration's accommodation for non-profits that object to furnishing contraceptive coverage in their employee health insurance plans. One of the plaintiffs that is pressing a challenge at the Supreme Court level is the Catholic pro-life organization Priests For Life. Yesterday the group announced that it had created a Novena to Reverse HHS Mandate (a series of nine prayers to be recited on successive days), and invited individuals, families, churches and schools to join in the prayer campaign. Here are two excerpts from the Novenas:

At this moment, therefore, when our government has decided to force us to cooperate in evil, we pray for the grace to be faithful to you and to oppose the unjust laws and mandates that have been imposed upon us and our institutions.....

We pray, Lord, for our President and for the thousands of people who serve in his administration. We pray that you enlighten and guide them, and free them from the deception of evil.

Free Thought Group Responds To Ted Cruz's Views On Atheists

The Free Thought Equality Fund issued a press release yesterday decrying a statement made by Republican presidential contender Ted Cruz:

Senator Cruz made his remarks this weekend in Des Moines, Iowa, at the 2015 National Religious Liberties Conference, organized by Generations with Vision. When asked how important it is for the President of the United States to fear God, Cruz responded that “any president who doesn’t begin every day on his knees isn’t fit to be commander-in-chief of this nation.”

“By claiming that those who do not pray are not fit for office, Senator Cruz is perpetuating the prejudiced myth that humanists and atheists are not moral people,” said Bishop McNeill, manager of the Freethought Equality Fund PAC.

Monday, November 09, 2015

Michigan City Elects First Majority-Muslim City Council

Christian Science Monitor reports that Hamtramck, Michigan last week became the first U.S. city to elect a majority-Muslim city council. Half of the 6-person city-council was up for election last Tuesday, and all 3 candidates who won were Muslim. They join one other Muslim whose term was not up, giving Muslims four of the six council seats. Hamtramck, a city of 22,000 in metropolitan Detroit, was historically Polish. However now the city has a large population from Yemen (around 24%) and Bangladesh (15%) and is only 12% Polish. It is 19% African American. It is estimated that half of the city's population is Muslim, and it may be the first U.S. city to have a Muslim majority population. [Thanks to Scott Mange for the lead.]

Muslim Former Employee Sues Bed Bath & Beyond For Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed by a former department manager at a Manhattan Bed Bath & Beyond store. In his state court lawsuit, Jose Alcantara alleges that he was subjected to months of harassment after he grew a beard that reflected his deepening Muslim religious faith. That faith was prompted by watching his mother-in-law dying from cancer. He says colleagues continually referred to him as "terrorist" and the HR department, pressed by the store manager, ignored his complaints. He was ultimately fired for not showing up for work on 3 days which he says were supposed to be vacation days, but his schedule was altered to make it appear he was to work. The EEOC issued Alcantara a right to sue letter last July.

Sunday, November 08, 2015

Recent Prisoner Free Exercise Cases

In Harris v. Cabe, 2015 U.S. Dist. LEXIS 148843 (ND MI, Nov. 3, 2015), a Mississippi federal district court dismissed, for failure to exhaust administrative remedies, a Muslim inmate's complaint that he was denied permission to attend religious services.

In Shabazz v. Giurbino, 2015 U.S. Dist. LEXIS 149002 (ED CA, Nov. 2, 2015), a California federal magistrate judge permitted a Muslim inmate to move ahead against two defendants with his complaint that Muslims were served vegetarian meals for breakfast and lunch, and a Halal meal only for dinner. Three defendants were dismissed for failure to exhaust administrative remedies.

In Dunn v. Catoe, 2015 U.S. Dist. LEXIS 149146 (Nov. 3, 2015), a Texas federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 149436, Oct. 16, 2015) and permitted a Muslim inmate to proceed with his complaint about the policy that requires an outside volunteer before inmates can hold religious meetings, and his complaints over gang infiltration of religious meetings and insufficient food during Ramadan.

In Muniz-Savage v. Addison, 2015 U.S. Dist. LEXIS 151202 (WD OK, Nov. 6, 2015) dismissed a suit by the daughter and by the former wife of an inmate who were denied rights to visit the inmate. The daughter was the victim of her father's sex crimes. Among the arguments rejected were that their free exercise rights were infringed because their religious beliefs required that the daughter receive blessings from her father.

Saturday, November 07, 2015

Court Denies Preliminary Injunction In Challenge To Fayetteville Civil Rights Ordinance

In Fayetteville, Arkansas yesterday a state trial court judge refused to issue a temporary injunction to prevent the city's Uniform Civil Rights Protection ordinance from going into effect today. According to the Northwest Arkansas Democrat Gazette, opponents of the ordinance argued that it infringes freedom of conscience and religion of those who have religious objections to the protection of homosexual and transgender rights. The lawsuit also contends that the Ordinance was improperly approved and submitted to voters, and that it violates Arkansas' recently enacted Act 137 which prohibits cities from enacting civil rights protections "on a basis not contained in state law." (See prior posting.) Voters approved the Ordinance in a referendum this week by a 53% -47% vote. The court concluded that plaintiffs had failed to show irreparable harm and a likelihood of success on the merits of their claims.

Muslim Woman Can Move Ahead With Suit Against Bus Driver Who Evicted Her

In Louis v. Metropolitan Transit Authority, (ED NY, Nov. 6, 2015), a New York federal district court held that a Muslim woman, Maria Louis, could proceed to trial with her retaliation and intentional discrimination claims against a bus driver who insisted that Louis-- who was wearing a burqa that covered her face-- move further back in the otherwise empty bus. When she refused, the driver had Louis removed by the police. Louis claims she was standing a seat length behind the driver who called her "scary" and who ordered her to leave the bus when she told him she was a Muslim and had a right to practice her religion. The driver insists that Louis was standing illegally on the white line in the front of the bus and became confrontational when he asked her to move. He says he did not know whether he was dealing with a man or woman because of the burqa. The court dismissed claims against the MTA and the city.

Friday, November 06, 2015

Supreme Court Grants Review In 7 Cases Challenging ACA Religious Non-Profit Accommodation On Contraceptive Coverage

The U.S. Supreme Court today granted certiorari in all seven of the cases pending before it that challenge the Obama Administration's Affordable Care Act regulations accommodating religious non-profit institutions that object to furnishing contraceptive coverage in their health insurance plans. The Court also consolidated the cases for review. (Order list.) The religious hospitals, colleges and charities involved all claim that the accommodation does not go far enough and still forces them to be complicit in furnishing contraceptive coverage. The Court limited its grant of certiorari to questions of whether the regulations' impact on the religious exercise of the non-profits violates the Religious Freedom Restoration Act. Becket Fund has links to the petitions for certiorari in all the cases, as well as to the reply and amicus briefs. The cases are Zubik v. Burwell (3rd Circuit); Priests for Life v. Department of Health & Human Services (D.C. Circuit); Roman Catholic Archbishop v. Burwell (D.C. Circuit); East Texas Baptist University v. Burwell (5th Circuit); Little Sisters of the Poor v. Burwell (10th Circuit); Southern Nazarene University v. Burwell (10th Circuit); and Geneva College v. Burwell (3rd Circuit). All of these circuit court decisions upheld the accommodation. The two cases from the 8th Circuit which held that the accommodation violates RFRA (see prior posting) have not yet reached the Supreme Court. The Washington Post reports on the Court's action.

Senator Hatch Criticizes Supreme Court's Establishment Clause Jurisprudence

In September, Utah Senator Orrin Hatch (former chairman of the Senate Judiciary Committee) delivered the first in a planned series of 8 speeches on the Senate floor addressing Religious Liberty. This past Wednesday, Hatch delivered the fourth speech in that series, this one on Faith and Public Life. The full transcript was included in a press release from Hatch's office. The speech broadly attacks the notion that the Establishment Clause creates a wall of separation between church and state. He said in part:

[T]he ratification debates clarify that the ratifiers viewed official establishment of a particular church as direct financial support for a preferred sect, wholly distinct from the non-discriminatory support and encouragement of religion in general, which the Establishment Clause was not thought to limit.... For a century and a half, this understanding of the Establishment Clause endured with little challenge....

Unfortunately, religion was not spared from the destructive judicial activism of a Supreme Court that spun wildly out of control in the mid-twentieth century. A new crop of justices, disinclined to follow the traditional judicial role of applying the law as written, instead sought to remake the law according to their left-wing worldview. From inventing new rights for criminals to mandating nearly unlimited access to abortion on demand, the Court in this period left few stones unturned in its radical rewriting of the Constitution. The longstanding understanding of the Establishment Clause was one of the mid-century Court’s first victims. Abandoning the understanding of the Clause I have previously detailed—an understanding that was clearly supported by text, structure, history, and precedent—the Court turned the Establishment Clause on its head.

Wall of Separation blog criticizes Hatch's remarks. Video of the three prior speeches in the series by Hatch are available on YouTube: Basic Principles (Sept. 22); Religious Liberty in the U.S. (Oct. 1); Status of Religious Freedom (Oct. 8).

Ben Carson Says Egyptian Pyramids Were Joseph's Grain Storage Facilities

AP reported yesterday that Republican Presidential candidate Ben Carson disagrees with historians and archaeologists about the origins of the Egyptian pyramids. Virtually all academics agree that the pyramids were constructed as tombs for Egypt's Pharaohs. Carson however, referring to the Biblical story of Joseph, insists that the pyramids were built as grain storage facilities when Joseph predicted a future famine to Pharaoh and advised storing grain in anticipation of it. (Genesis 41). Carson advanced his theory 17 years ago, but stood by his contention in comments at a book signing in Florida yesterday. The Washington Post has extensive excerpts (as well as nearly 15 minutes of video) from Carson's speech 17 years ago, delivered at the commencement ceremonies at the Seventh Day Adventist affiliated Andrews University. In it Carson more broadly defended a literal reading of the Bible. [Thanks to Tom Rutledge for the lead.]