Religion Clause

Monday, April 11, 2016

White House Hosts Nowruz Celebration

The White House last Wednesday hosted its annual Nowruz celebration. Nowruz is the Persian New Year celebrated as a secular holiday by many in the Middle East and central Asia, and celebrated as a religious holiday by Zoroastrians. (Wikipedia). First Lady Michelle Obama spoke at the East Room reception (full text of remarks), saying in part:

We think America is strongest when we recognize our many traditions, when we celebrate our diversity, and when we lift each other up.... We are a nation of immigrants. And we should cherish the talent and energy and the beautiful traditions and cultures that come with that heritage, not just today but every day.

British Employment Appeal Tribunal Upholds Warning To Proselytizing Supervisor

In Wasteney v. East London NHS Foundation Trust, (UK EAT, April 7, 2016), the British Employment Appeal Tribunal (EAT) rejected a religious discrimination claim brought by the Head of Forensic Occupational Therapy at a public sector mental health clinic who described herself as a born again Christian. She was issued a written warning for proselytizing a young Pakistani Muslim occupational therapist whom she supervised. She gave the Muslim woman a book about another Muslim Pakistani woman who had converted to Christianity; during a one-on-one meeting prayed for the Muslim woman by laying hands on her; and invited the Muslim woman to various Christian church events. In upholding the finding of the Employment Tribunal (ET), the EAT said in part:

The ET did not find that the Respondent had pursued disciplinary action against the Claimant and imposed a warning on her because of or for reasons related to her sharing of her faith with a consenting colleague. It expressly found that the Respondent took the actions it did because the colleague in question had made serious complaints about acts which blurred professional boundaries and placed improper pressure on that colleague.

Christian Post reporting on the decision quotes this reaction from the supervisor who lost her appeal:

I believe the NHS singled me out for discipline because Christianity is so disrespected. Previously a Christian worship service that I set up for patients was closed down, but accommodation for Muslims to practice their faith wholly facilitated and encouraged.

CAIR Sues Challenging Procedures For Terrorist Watch List

Last week, CAIR-Michigan filed two federal lawsuits challenging the federal government's operation of the Terrorist Screening Database. Inclusion on the list leads to placement on the no-fly list and on lists restricting access to licenses and firearms. The suits allege that almost all Americans known to be on the watch list are Muslims or persons who could be mistaken for Muslims. One of the suits, Baby Doe v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) is a class action seeking damages. The other, Elhady v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) seeks injunctive and declaratory relief. The suits contend that selection of individuals for the watch list is illegally motivated by religious status and denies those on the list substantive and procedural due process rights by stigmatizing them and burdening their right of movement. Among other things, the suits seek a change in the watch list so that individuals placed on the list are furnished notice of the reasons for their inclusion and an opportunity to contest their listing. CAIR issued a press release announcing the filing of the lawsuits.

Sunday, April 10, 2016

2 Particularly Interesting Prisoner Free Exercise Cases

As regular readers of Religion Clause blog know, at least weekly I present a summary of recent prisoner free exercise cases. This week, two of the recent cases deserve more mention than my typical brief description:

In Brown v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 44755 (D CT, March 31, 2016), a Connecticut federal district court dismissed a female federal prisoner's 1st Amendment claim, but allowed her to move ahead on her claim under RFRA that her rights were infringed when she was searched by a male correctional officer. This suit is unusual because it was filed by a female inmate. For reasons I have been unable to explain, almost all reported prisoner free exercise cases are filed by male inmates. Perhaps it is related to differences in the way that women's prisons are administered. If readers have other explanations, I would appreciate receiving them.

In McLenithan v. Williams, 2016 U.S. Dist. LEXIS 45290 (D OR, April 4, 2016), an Oregon federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by an inmate seeking a kosher diet. Plaintiff described himself as a Seventh Day Adventist who practices Judaism as a second religion. The court's RLUIPA analysis included the following:

Defendants have presented evidence establishing a compelling interest in limiting kosher diets to Jewish inmates, and this policy, in conjunction with ODOC's accommodation of traditional Seventh Day Adventist dietary practices, is the least restrictive means of meeting that interest. The evidence is undisputed that providing kosher meals costs $4,117.20 more per biennium for each additional inmate who requests kosher food. To be sure, the cost of accommodating Plaintiff alone is not significant. However, if Plaintiff were to be accommodated by providing the kosher meal option, other inmates will likely have to be accommodated as well, ultimately at great expense to ODOC. Indeed, Defendants provide evidence that if non-Jewish inmates were allowed the option of choosing the kosher meal plan, a substantial percentage would likely do so. Finally, the Court considers the substantial additional cost of providing kosher meals to non-Jewish inmates in the context of ODOC's overall budget. Defendants provide evidence that ODOC's security budget is strained.

This analysis raises the question of whether compelling interest is measured differently when the government's interest is cost rather than security. In Holt v. Hobbs, the Supreme Court required compelling interest in security be measured by looking only at the "particular claimant" whose religious exercise is being burdened.

Recent Prisoner Free Exercise Cases

In Woodward v. Afify, 2016 U.S. Dist. LEXIS 42738 (WD NY, March 29, 2016) a New York federal magistrate judge recommended dismissing a complaint by a Muslim inmate that he was denied access to Friday prayer services and Ramadan meals. He was allowed to move ahead on other retaliation claims.

In Henrius v. County of Nassau, 2016 U.S. Dist. LEXIS 43795 (ED NY, March 31, 2016), a New York federal district court dismissed an inmate's complaint that he was not allowed to attend religious services on one occasion.

In Howard v. Skolnik, 2016 U.S. Dist. LEXIS 44624 (D NV, March 31, 2016), a Nevada federal district court dismissed on qualified immunity grounds the decision by prison authorities to refuse to recognize Nation of Islam as a religion for approved prison activities.

In DeJesus v. Bradt, 2016 U.S. Dist. LEXIS 44716 (WD NY, March 31, 2016), a New York federal district court dismissed a Muslim inmate's complaint that during Ramadan Muslims were not permitted to take unfinished food from the double evening meal back to their cells to eat during the night. The court allowed plaintiff to move ahead with his complaint that on 10 occasions during Ramadan he was not permitted to take a shower or engage in ritual cleansing before group prayer.

In Hogue v. Ada County, 2016 U.S. Dist. LEXIS 45011 (D ID, March 31, 2016), an Idaho federal magistrate judge dismissed an inmate's complaint that as part of his behavioral management plan he was prohibited from possessing a Bible or any other religious book.

In Flynn v. Ward, 2016 U.S. Dist. LEXIS 45075 (ND NY, April 4, 2016), a New York federal district court dismissed an inmate's complaint that he was forced to give up his prayer rug and mail it home.

In Sterling v. Sellers, 2016 U.S. Dist. LEXIS 45607 (MD GA, April 5, 2016), a Georgia federal district court permitted a Muslim inmate to move ahead with his claim that he was not allowed to engage in daily congregational prayer. The magistrate's opinion in the case is at 2016 U.S. Dist. LEXIS 45896, Feb. 22, 2016.

In Sanders v. Cain, 2016 U.S. Dist. LEXIS 42069 (MD LA, March 28, 2016), a Louisiana federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 46031, Feb. 19, 2016) and dismissed as frivolous a Mormon inmate minister's complaint that he was unable to congregate with other Mormons in the main prison complex, or to hold fund-raisers. His claims regarding his status as an inmate minister and false disciplinary charges were dismissed insofar as they were brought in forma pauperis.

In Allen v. Ahlin, 2016 U.S. Dist. LEXIS 46697 (ED CA, April 5, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his religious rights were being infringed by the denial of a vegetarian diet.

In Huddleston v. Wilson County Criminal Justice Complex, 2016 U.S. Dist. LEXIS 46598 (MD TN, April 5, 2016), a Tennessee federal magistrate judge recommended dismissing an inmate' complaint that his personal Baptist pastor had been unable to visit him because he was not on the jail's ministry list.

Saturday, April 09, 2016

Bernie Sanders Accepts Invitation To Conference In Vatican On Social Justice and the Environment

Democratic Presidential candidate Bernie Sanders announced yesterday that he has accepted an invitation from the Pontifical Academy of Social Sciences to attend an April 15 conference in the Vatican on restoring social justice and environmental sustainability. As reported by Time magazine, in a New York campaign stop today, Sanders said: "I must tell you that I am a very great fan of the role that Pope Francis has been playing in talking about inequality in this world." [Thanks to Scott Mange for the lead.]

Break-Away Presbyterian Church Settles Suit By Paying $1.1M For Its Building

According to yesterday's St. Louis Post Dispatch, a break-away Presbyterian congregation in Chesterfield, Missouri has settled a lawsuit against it by the Giddings-Lovejoy Presbytery. When Bonhomme Presbyterian Church broke away from the Presbyterian Church (USA) to join the more conservative Covenant Order of Evangelical Presbyterians, the Presbytery sued claiming that the congregation's property belongs to the Presbytery. In the settlement, Bonhomme paid the Presbytery $1.1 million for the church building and property.

State Trooper Fired For Proselytizing During Traffic Stop

According to WCPO News, last Thursday the Indiana State Police fired state trooper Brian Hamilton after a formal complaint was filed against him by motorist Wendy Pyle who charges that when Hamilton stopped her to give her a warning ticket for speeding, he also asked her what church she attends and whether she was saved. The ACLU has filed suit over the incident. Hamilton was sued in 2014 by another woman for similar proselytizing during a traffic stop. (See prior posting.)

Abstention Required In Suit For Defamation In Excommunication Proceedings

In Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession, (MN Sup. Ct., April 6, 2016), the Minnesota Supreme Court in a 3-2 decision (2 justices not participating), held that under the ecclesiastical abstention doctrine, the 1st Amendment prohibits holding a church and its pastors liable in a defamation action for statements made during church disciplinary proceedings seeking to excommunicate plaintiffs. The majority concluded:

Ultimately, adjudicating [plaintiffs'] claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization.

Justice Lillehaug's dissenting opinion complained:

Today the court creates what is, essentially, an absolute privilege to defame in “formal church discipline proceedings.” No matter how false and malicious the statement, and no matter how much the victim is damaged, there is no remedy whatsoever in Minnesota’s courts.

Friday, April 08, 2016

Pope Francis Releases Historic Document on Family Life

As reported by Crux, the Vatican today released Pope Francis' much anticipated Apostolic Exhortation titled Amoris Laetitia (The Joy of Love). Here is the full text of 256-page document which grew out of meetings of Catholic bishops from around the world in 2014 and 2015 on issues of the family. The Vatican has also released a Summary of each of the document's nine chapters. Of particular interest is Chapter 8 which deals with the Church's treatment of divorced Catholics. The Summary of that Chapter reads in part:

As far as discernment with regard to “irregular” situations is concerned, the Pope states: “There is a need ‘to avoid judgements which do not take into account the complexity of various situations’ and ‘to be attentive, by necessity, to how people experience distress because of their condition’” (AL 296). And he continues: “It is a matter of reaching out to everyone, of needing to help each person find his or her proper way of participating in the ecclesial community, and thus to experience being touched by an ‘unmerited, unconditional and gratuitous’ mercy” (AL 297). And further: “The divorced who have entered a new union, for example, can find themselves in a variety of situations, which should not be pigeonholed or fit into overly rigid classifications leaving no room for a suitable personal and pastoral discernment” (AL 298).

... [T]he Pope states that “the baptized who are divorced and civilly remarried need to be more fully integrated into Christian communities in the variety of ways possible, while avoiding any occasion of scandal”. “Their participation can be expressed in different ecclesial services… Such persons need to feel not as excommunicated members of the Church, but instead as living members, able to live and grow in the Church… This integration is also needed in the care and Christian upbringing of their children” (AL 299).

In a more general vein, the Pope makes an extremely important statement ... :“If we consider the immense variety of concrete situations, … it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases. What is needed is simply a renewed encouragement to undertake a responsible personal and pastoral discernment of particular cases, one which would recognize that, since ‘the degree of responsibility is not equal in all cases’, the consequences or effects of a rule need not necessarily always be the same” (AL 300)....

Crux has also posted an analysis of the document

Hospital Offered Reasonable Accommodation To Employee Rejecting Flu Shot

In Robinson v. Children's Hospital Boston, (D MA, April 5, 2016), a Massachusetts federal district court dismissed a Title VII and state discrimination claim by a hospital emergency room worker who refused on religious grounds to be immunized for influenza. Plaintiff, who was apparently a follower of Nation of Islam, initially refused the vaccine because it contained pork products, but the hospital offered her a non-gelatin vaccine. She continued to refuse on religious grounds, was granted a temporary medical leave and was allowed to look for a non-patient area position in the hospital. When she was unable to find another position, she was terminated. The court held that the hospital had offered plaintiff reasonable accommodation and that allowing her to remain in the patient area unvaccinated would have posed an undue hardship. Boston Herald reports on the decision.

Court Says Cross on County Seal Is Unconstitutional

In Davies v. Los Angeles County Board of Supervisors, (CD CA, April 6, 2016), a California federal district court granted a permanent injunction requiring removal of a cross from the Los Angeles County Seal. Under threat of a lawsuit in 2004, the County redesigned its Seal replacing a cross that was on it with a depiction of the San Gabriel Mission. Subsequently the San Gabriel Mission added a cross on its building and the County Board voted to add the cross to the Mission's depiction on the Seal. The district court held that the addition of the cross violates both the Establishment Clause and the California Constitution's No Aid clause. Los Angeles Times reports on the decision.

Suit Challenges Constitutionality of Tax Code Parsonage Allowance

In a lawsuit filed this week, the Freedom From Religion Foundation is again challenging the constitutionality of the Internal Revenue Code's parsonage allowance. The complaint (full text) in Gaylor v. Lew, (WD WI, filed 4/6/ 2016), contends that Section 107 of the Internal Revenue Code--which allows clergy to exclude from taxable income a housing allowance paid as part of their compensation-- violates the Establishment Clause. The suit was brought by two FFRF officers who also received housing allowances. One of the plaintiffs is an ordained minister who in prior years when employed by a church was able to claim the allowance. In 2014, the 7th Circuit dismissed a similar suit on standing grounds because plaintiffs had not sought to exclude their FFRF allowances on their federal income tax returns or claim a tax refund. (See prior posting.) This time plaintiffs did file amended returns seeking a refund of taxes paid on their housing allowances. FFRF issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

Thursday, April 07, 2016

FFRF Sues Connecticut City Over Refusal To Allow Winter Solstice Banner

A suit was filed two weeks ago by the Freedom From Religion Foundation challenging the refusal by Shelton, Connecticut authorities to allow FFRF to place a Winter Solstice display in a city park. The complaint (full text) in Freedom From Religion Foundation v. City of Shelton, Connecticut, (D CT, filed 3/22/2016) alleges that the city allows the American Legion to place a "heralding angels" religious display in Constitution Park every Christmas season. However the city refused to allow FFRF to put up a banner reading in part: "At this season of the Winter Solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell...." The city thought the banner would be offensive to many. The complaint alleges free speech and equal protection violations. FFRF issued a press release announcing the filing of the federal lawsuit. Yesterday WSHU News had a longer report on the lawsuit.

Court Says Minister Can Move Ahead With Challenge To Ban on His Transitional Housing Project

Martin v. Houston, (MD AL, April 6, 2016), involves an attempt by the Alabama legislature to close down a transitional housing arrangement consisting of a group of mobile homes for male sex offenders being released from prison. The facility was set up by a Christian minister who imposed behavior standards on residents and required them to attend church services. The Alabama legislature passed a statute tailored only to apply to this facility. The law, whose coverage was limited to one county, declared a facility where more than one sex offender lived together to be a public nuisance. In a suit by the minister operating the facility, an Alabama federal district court held that plaintiff had adequately alleged free exercise, bill of attainder and due process claims. It held that the complaint had not adequately alleged a RLUIPA violation because the law does not involve government making individualized assessments of proposed property use.

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a "substantial burden" on plaintiffs' exercise of religion because the primary sacrament of the church is peyote. Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

Episcopal Church Still Holds Title To Property of Break-Away Diocese

In Diocese of San Joaquin v. Gunner, (CA App., April 5, 2016), a California state appeals court held that applying neutral principles of law, the property of a break-away diocese still belongs to the Episcopal Church. It held that while the trial court wrongly held that diocese held the property in trust for the Episcopal Church, nevertheless the property still belongs to the Episcopal Church because the purported transfer of the property to the break-away diocese was invalid:

Schofield [bishop of the break-away diocese] was attempting to change the title holder of the property in dispute from the corporation sole known as The Protestant Episcopal Bishop of San Joaquin to the corporation sole known as The Anglican Bishop of San Joaquin. However, because the amendment changing the name of the corporation sole to The Anglican Bishop of San Joaquin was invalid, no corporation sole known as The Anglican Bishop of San Joaquin existed when these deeds were executed and recorded.

Wednesday, April 06, 2016

New Study Surveys Restrictions On Women Wearing Religious Attire

The Pew Research Center yesterday released a report (full text) titled Restrictions on Women's Religious Attire. It concludes:

50 of the 198 countries and territories included in the study had at least one law or policy regulating women’s religious attire in 2012 and 2013..... About three-quarters of those countries (39 of the 50, or 78%) had a law or policy limiting women’s ability to wear religious attire, while about a quarter (12 of the 50, or 24%) had at least one law or policy requiring women to wear particular attire. Some of these laws or policies applied nationwide, while others were imposed at the provincial, state or local level. One country – Russia – had [both in different areas].

The study also found that in 2013, some 50 countries had at least one incident where women were harassed by private individuals either for wearing religious dress, or for not conforming to local customs concerning religious dress.

Tennessee Legislature Passes Bill Making the Holy Bible the Official State Book

Yesterday the Tennessee General Assembly passed HB615, designating the Holy Bible as the state's "official book." AP reports:

Sponsors argue the bill seeks to honor the historical significance of the Bible in Tennessee's history rather than serving as a government endorsement of religion.

But opponents say the measure trivializes the Bible by placing it alongside other Tennessee symbols like the small mouth bass as the state sport fish, the cave salamander as the state amphibian and the honeybee as the state agricultural insect.

The state's Attorney General in an Opinion issued in April (full text) concluded that the bill is unconstitutional, and Governor Bill Haslam has expressed doubts about the bill. It is unclear whether or not he will veto it.