Recent Prisoner Free Exercise Cases

In Cowart v. LaCasse, 2015 U.S. Dist. LEXIS 158333 (D SC, Nov. 24, 2015), a South Carolina federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 158593, Oct. 26, 2015) and dismissed an inmate's complaint that  he believed the Common Fare diet which was marked kosher was in fact not kosher.

In Carpenter v. Extendicare Health Services, 2015 U.S. Dist. LEXIS 159876 D MN, Nov. 30, 2015), a Minnesota federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 160141, Oct. 26, 2015) and dismissed on various grounds12 claims, including a free exercise claim, against a private nursing home that incorrectly believed plaintiff was the subject of a court order barring him from release.  The court found no state action.

In Farfan v. United States, 2015 U.S. Dist. LEXIS 160086 (SD FL, Nov. 24, 2015), a Florida federal magistrate judge recommended rejecting the claim by a federal inmate that her 144 month sentence for cocaine distribution violates RFRA because "she sincerely believes that God requires her to be at home with her family in order to properly observe holidays and rituals associated with her Catholic faith." The court responded in part: "The RFRA was enacted to encourage and protect free exercise of religion, even in a prison context. But it was never intended to be a get-out-of-jail-free card."

In McKnight v. MTC, 2015 U.S. Dist. LEXIS 160398 (ND TX, Nov. 30, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160775, Nov. 9, 2015), and dismissed an inmate's claim that his free exercise and RLUIPA rights were infringed by housing him with a homosexual inmate.

Restrictions On Anti-Gay Marriage Protester Upheld

In Braun v. Terry, (ED WI, Nov. 30, 2015), a Wisconsin federal district court rejected claims by an anti-gay marriage protester that his free speech, equal protection and due process rights were infringed when authorities restricted the area in which he could carry his signs.  The events at issue occurred on the first day that same-sex marriage licenses were issued and marriages were conducted at the Milwaukee County Courthouse.  Plaintiff complains that he was not permitted to enter the courthouse to protest, and that the area in the park outside the courthouse where he could protest was restricted. The court found the restrictions imposed reasonable, non-discriminatory and narrowly tailored.

Mayor, Councilwoman Patch Up Dispute Over Christmas Tree

According to NJ.com, on Thursday, Roselle Park, New Jersey borough council voted 4-2 to go along with Mayor Carl Hokanson and change the name of the borough's annual "Tree Lighting" to "Christmas Tree Lighting."  This led Councilwoman Charlene Storey to resign, arguing that the renaming changed the ceremony "from a non-religious event to a religious one."  The mayor said that in going back to the event's traditional name, he was just calling the tree what it is. The mayor reached out to Storey, and after they met she withdrew her resignation.  The mayor in turn set up a new committee on diversity that Storey will chair.  She says she hopes the committee will come up with a process for groups to propose additions to the Christmas Tree Lighting and display, as well as deal with other diversity issues.  Both Hokanson and Storey are Democrats; Storey was raised Catholic, but is now a "non-believer."

Church's Suit Challenges Tax Decision Based On Project Gone Awry

In Panama City, Florida, the Faith Christian Family Church along with Markus Bishop, its owner and former pastor, filed suit last Monday against the Bay County Property Appraiser’s Office seeking to reverse a decision that restored three of the church's properties to the tax rolls. According to the Panama City News Herald, the dispute grows out of an innovative church project gone awry:

The church “wanted, as a form of religious and charitable outreach, to create a safe venue for young persons who might otherwise be endangered or tempted by the Spring Break revelry,” the complaint states. Faith Christian’s “intended concept was to offer a party-like but wholesome atmosphere, with music, food and non-alcoholic beverages. … Charitable outreach to persons who may be in need of a welcoming and safe refuge is a core religious principle of [Faith Christian’s] religious faith and practice.”

The complaint goes on to say that a promotion entity named Spring Break Amnesia was enlisted to market the outreach mission but “apparently had its own ideas for marketing and operation” by charging a $20 admission, selling sexually explicit merchandise and hosting naked paint parties and slumber-party Sundays.

For good measure, tax officials also revoked the non-profit status of a vacant lot next to the Life Center at which the spring break project took place, as well as the non-profit status of a mansion which the church claimed was a parsonage. The church claims that removing the properties' non-profit status infringed the church's First Amendment rights.

27 Sudanese Muslims Charged With Apostasy For Rejecting the Hadith

In Khartoum, Sudan, 27 defendants are on trial for apostasy.  According to Middle East Online and the Sudan Tribune, the charges under Sec. 126 of the Sudanese Criminal Code potentially carries a death sentence, but such a sentence is unlikely to be carried out.  The defendants are charged with preaching that only the Qur'an had religious authority, and rejecting the authority of the Hadith and of Sunnah.

Christian Camp Gets Preliminary Injunction Allowing It To Use Its Buses For Released Time Program

According to Public Opinion News, a Pennsylvania federal district court on Wednesday issued a preliminary injunction permitting Joy El Ministries to go back to using its own buses for its public school Released Time Bible Program while its lawsuit challenging state regulatory contentions is pending. The lawsuit, originally filed in state court, was removed to federal court by the state because it raises federal Establishment Clause issues. (Herald Mail Media).  As previously reported, Pennsylvania State Police cited the Greencastle, Pennsylvania Christian camp for transporting students to and from school for its a once-a-week "released time" program in buses that do not  meet the standards for vehicles owned by the school district or under contract with it.  Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. The camp claims its buses are not school buses and its program is not an extracurricular activity, so that it is not covered by the regulations.  The camp has been renting other buses since state police cited it for violations.

Town Brings Back Nativity Scene-- This Time With Frosty and Reindeer

Last year, the town of Dallas, North Carolina moved its traditional nativity scene from the courthouse lawn to private property down the street under threat of a lawsuit from the Freedom From Religion Foundation. However many town residents were angry over the move.  So, according to WSOCTV News yesterday, this year a nativity scene is back on the courthouse lawn.  It is larger than the former one, but also includes figures of Frosty the Snowman and reindeer.  The city attorney told the town's Board of Aldermen that under Supreme Court rulings, a nativity display is permitted if it includes secular figures. FFRF still contends that the display is improper.

First Family Lights National Christmas Tree

Reuters reports that President Obama and his family yesterday led the lighting of the National Christmas Tree across the street from the White House.  Meanwhile, on a page titled Holidays at the White House, the White House website displays this year's White House Holiday Decor-- with the theme "A Timeless Tradition."

European Commission Appoints Officials To Combat Anti-Semitism and Anti-Muslim Hatred

The European Commission announced on Tuesday that it has appointed a Coordinator on Combating Antisemitism (Katharina von Schnurbein, a German national), and a Coordinator on Combating Anti-Muslim Hatred (David Friggieri, a national of Malta).  The new positions grew out of a Colloquium on Fundamental Rights held last October. [Thanks to Law & Religion UK for the lead.]

Church Gets Preliminary Injunction Under RLUIPA For Zoning Exclusion

In Hope Rising Community Church v. Municipality of Penn Hills, 2015 U.S. Dist. LEXIS 160148 (WD PA, Nov. 30, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160852, Oct. 28, 2015) and granted a preliminary injunction to a church that was ordered to stop holding worship services in a warehouse building it leased in an area zoned only for "Light Industrial" uses.  The city also denied a zoning variance.  The court concluded that the city's zoning law violates RLUIPA's "equal terms" provision by not allowing churches as a permitted use in areas zoned "Light Industrial," given the other types of uses that are allowed. The court concluded that:

the City has failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions [which are permitted].

Court Issues Preliminary Injunction Against School Show's Live Nativity Depiction

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Dec. 2, 2015), an Indiana federal district court granted a preliminary injunction barring an Indiana school district from presenting its traditional live nativity scene as part of this year's school Christmas Spectacular show. The court said in part:

a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.

The court held that the school's insertion, in response to the filing of this lawsuit, of short segments on Hanukkah and Kwanzaa did not cure the Establishment Clause problem:

the way in which Chanukah and Kwanzaa are being presented in the show in comparison to the Christmas portion in general and the nativity scene in particular actually serves to place greater emphasis on and suggest greater preference of the religious message conveyed by the nativity scene.

In its press release on the decision, FFRF says it continues to prepare for trial on the merits since the preliminary injunction applies only to this year's show.

UPDATE:  The Dec. 12 Goshen News reports that the school stayed in technical compliance with the preliminary injunction by featuring a static nativity scene using mannequins, in place of the enjoined live performance.

New Religion In Iceland Seeks To End Tax Support of Churches

According to yesterday's BBC News, in Iceland in recent weeks more than 1,000 people have registered as members of a new religious denomination, Zuism.  The relatively new religion bases its teachings on ancient Sumerian beliefs.  However its real goal is to end Iceland's parish fees-- a portion of each citizen's income tax that is allocated to the church with which the taxpayer is affiliated.  The new group also wants the government to end record keeping of citizens' religious affiliations.  The Zuist organization promises to rebate to its members any parish fees that are allocated to it. Tax authorities say any rebates will be subject to income tax.

Commentary: Will We See A Repeat of the "Kim Davis Saga" Over Transgender Rights?

As momentum grows to add "gender identity" to anti-discrimination laws, an interesting shift in argument by opponents can be discerned.  Until recently, opposition focused primarily on privacy concerns.  In the referendum battle earlier this year over Houston's Equal Rights Ordinance, while opposition was centered in churches, it was expressed in terms of concern about "allowing men to enter women's restrooms and locker rooms-- defying common sense and common decency." (See prior posting.)

In recent days, however, we are seeing a subtle shift that begins to frame opposition to transgender rights as a religious liberty issue.  Earlier this week, Liberty Counsel filed an amicus brief (full text) on behalf of an organization known as Liberty Center for Child Protection in a 4th Circuit case involving the right of a Virginia school board to limit the use of sex-segregated locker rooms and restrooms on the basis of an individual's biological features. Liberty Counsel's press release describes its position as one that focuses on child protection:

Public schools adopting “gender identity” instead of biological sex abandons science, creates a hostile environment, and threatens the safety and well-being of children...

However language in the brief began to lay the foundation for a religious liberty argument by describing early researchers on transgender issues as individuals who had an "animus for Judeo-Christian sexual mores" and who blamed "Judeo-Christian principles, instead of early sexual trauma and mental illness for the distress suffered by 'transsexuals.'"

Then yesterday a lengthy online article (full text) by the conservative writer Ryan T. Anderson set out perhaps the clearest formulation yet of the religious liberty claim:

SOGI [Sexual Orientation and Gender Identity] laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions — convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.

To the extent that compliance with laws barring discrimination on the basis of gender identity is viewed as a violation of religious conscience, we could well see a repeat of the "Kim Davis saga," this time in the form of school principals and superintendents blocking restroom doors.

Nativity Pageant Challengers May Sue Anonymously

In an order (full text) issued Monday, an Indiana federal magistrate judge allowed two individual plaintiffs in a lawsuit challenging an Indiana high school's Nativity Pageant to proceed anonymously. (See prior related posting.) Plaintiffs asked for the order "because one Doe Plaintiff is a minor, because of the history of violence and intimidation against plaintiffs in other Establishment Clause cases similar to this one, and because there is a reasonable expectation that the Doe Plaintiffs here will be the victims of harassment, injury, and other serious harm if their identities are made public."  Defendants did not object to the order.  The Elkhart Truth reports on the order.

South Africa's Jewish Community Creates Internal Body To Regulate Ritual Circumcision

According to yesterday's Jerusalem Post, South Africa's Jewish community is setting up its own Committee to oversee and regulate the practice of ritual circumcision in the nation.  The Committee will set requirements for circumcisions based on Jewish law and the highest standards of professionalism, health and safety.  The decision by Chief Rabbi Warren Goldstein and the Beth Din (rabbinic court) implements the recommendations of a commission of inquiry set up by the Jewish community after a serious malpractice incident by an elderly mohel last June.  In order to practice, a mohel will need to be accredited by the new committee, and have the accreditation renewed every two years. The country's Chief Rabbi has already imposed a lifetime ban on the mohel whose malpractice triggered the new recommendations.

Plaintiff In Clergy Abuse Case Alleged No Duty Owed To Him By Diocese

In Doe v. Tissera, 2015 Conn. Super. LEXIS 2757 (CT Super., Nov. 3, 2015), a Connecticut trial court held that while the 1st Amendment does not immunize the Hartford Roman Catholic Diocese from liability in connection with clergy sexual abuse claims, nevertheless plaintiff here failed to allege adequate facts to support his negligence and breach of fiduciary duty claims against the Diocese:

Doe's claims ... do not allege a reasonably foreseeable risk of harm giving rise to a duty owed by the diocese to Doe. Without properly alleging that the diocese owed him a duty, Doe has no cause of action against the diocese.

Court Rejects Establishment Clause Challenge To Bladensburg Cross

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (D MD, Nov. 30, 2015), a Maryland federal district court rejected an Establishment Clause challenge to a 40-foot tall Veteran's Memorial in the shape of a cross. The so-called Bladensburg Cross was erected in 1925 by the American Legion at the intersection of two highways. The original ownership of the land on which it sits was unclear, but the land was eventually transferred to the state.  As Veterans Memorial Park, it is now also surrounded by other monuments. The court concluded that the cross does not have the effect of endorsing religion:

the predominant and nearly exclusive use of the Monument has been for annual commemorative events held on Memorial Day and Veterans Day....  In light of this history and context, of which a reasonable observer would be aware, the Monument "evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles...." The evocation of foreign graves is particularly relevant here because, unlike crosses challenged in other cases, the Monument explicitly memorializes forty-nine servicemen who died in Europe during World War I, and the "cross developed into a central symbol of the American overseas cemetery" during and following World War I....

The Baltimore Sun reports on the decision.

Italian School Head Provokes Controversy By Canceling Christmas Concert In Favor of Winter Musical In January

With Italy's population becoming more religiously diverse, it is now facing the kind of issues regarding Christmas celebration in public schools that have been common in the United States.  Under attack from Italy's Prime Minister, the headmaster of a 1,000 pupil school in the town of Rozzano near Milan has been forced to resign after he canceled the school's traditional Christmas concert in favor of a non-religious Winter Concert in January.  AFP, The Telegraph and Deutsche Welle all reported yesterday on aspects of the story.  Before resigning, Marco Parma, headmaster of the Garofani comprehensive school whose student body is 20% non-Christian, said:

Last year we had a Christmas concert and some parents insisted on having carols. The Muslim children didn't sing, they just stood there, absolutely rigid.  It is not nice watching a child not singing or, worse, being called down from the stage by their parents.

The school's teachers backed the headmaster, but Italian Prime Minister Matteo Renzi was incensed, saying:

Discussion and dialogue does not mean to say we can drown our identity for the sake of a vague and insipid form of political correctness. Italians, both non-religious and Christians, will never give up Christmas.

The head of Italy's anti-immigrant Northern League went further, arguing that "canceling traditions is a favor for terrorists."

Recent Articles and Books of Interest

From SSRN:

• Prakash Shah, Does Durkheim Enhance Our Understanding of Law and Religion?, (Queen Mary School of Law Legal Studies Research Paper No. 212/2015, Nov. 2015).
• Jeffrey M. Hirsch, EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences, (Texas Law Review, Vol. 94, 2015, Forthcoming).
• Nicholas Aroney, Faith in Public Office: The Meaning, Persistence and Importance of Oaths, (November 23, 2015).
• Lucia Ann Silecchia, Pope Francis and the Vocation of the Lawyer: Reflections on Service and Responsibility, (54 J. of Cath. Legal Stud. 23 (2015)).
• Lewis A. Grossman, Orthodoxy and 'The Other Man's Doxy': Medical Licensing and Medical Freedom in the Gilded Age, (November 19, 2015).
• Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, (Yale Journal of Law & Feminism, Vol. 28:1, 2016).
• Cynthia Godsoe, Marriage Equality and the 'New' Maternalism, (California Law Review Circuit, Vol. 6, No. 145, 2015).
• Jay P. Greene & Cari A. Bogulski, The Effect of Public and Private Schooling on Anti-Semitism, (EDRE Working Paper No. 2015-10, Nov. 2015).
• Abdul Azeez Maruf Olayemi, et. al., Islamic Interbank Money Market: A Comparative Legal Study between Malaysia And Some Notable Jurisdictions, (2015 1 SHR, SHARIAH REPORT, A Journal of Islamic Law, Banking & Finance, Malaysian Current Law Journal (MCLJ)).
• Eric C. Chaffee, Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation, (November 22, 2015).
• UPDATE: Netta Barak Corren, Does Anti-Discrimination Law Influence Religious Behavior?, (Hastings Law Journal, Forthcoming).

Recent Books:

• William Lazarus (with Sid Kleiner), Passover In Prison, (CreateSpace, July 2015).
• Saba Mahmood, Religious Difference in a Secular Age: A Minority Report, (Princeton Univ. Press, Nov. 2015).
• Katherine Franke, Wedlocked: The Perils of Marriage Equality, (NYU Press, Nov. 2015).
• William A. Schabas, The European Convention on Human Rights-- A Commentary, (Oxford Univ. Press, Nov. 2015).

Belgian Court Sentences French Comedian For Anti-Semitic Remarks

Last Wednesday, a Belgian court sentenced French comedian Dieudonne M’bala M’bala to prison for two months, and imposed a fine equivalent to $9,500 (US) on him for his anti-Semitic remarks during a comedy show in Belgium in 2012.  According to The Forward:

Judges said that the remarks, made in front of an audience of 1,100 people in the town of Herstal, were clearly calls to hatred and violence. By calling on Christians and Muslims to unite to kill Jews, he had incited genocide.

He was also ordered to pay for the entire text of the judgment against him to be printed in two leading French-language Belgian newspapers.

Dieudonne has prior convictions in France.  Earlier this month the European Court of Human Rights refused to reverse Dieudonne's conviction in France for Holocaust denial stemming from a different performance. (See prior posting.)