Recent Prisoner Free Exercise Cases

In Davis v. Davis, (5th Cir., June 14, 2016), the 5th Circuit , while affirming in part, vacated and remanded a district court's refusal to allow Native American inmates to wear long hair or kouplocks. The district court had not evaluated plaintiffs' claims in light of the specific characteristics and security risks posed by each inmate.

In Rouser v. White, (9th Cir., June 17, 2016), the 9th Circuit, in a 2-1 decision, held that the district court had abused its discretion in terminating a 2011 consent decree that allowed a Wiccan inmate to practice his religion in various ways.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 73906 (SD GA, June 6, 2016), a Georgia federal magistrate judge dismissed, but with leave to amend to allege a sincere religious belief, an inmate's complaint that he was denied a kosher Rastafarian diet.

In Ahdom v. Etchebehere, 2016 U.S. Dist. LEXIS 76149 (ED CA, June 9, 2016), a California federal district court permitted a Muslim inmate to move ahead under the free exercise clause with his complaint that he had been denied religious Ramadan Halal meals for a period of six days.

In Parker v. Shepard, 2016 U.S. Dist. LEXIS 77854 (SD GA, June 15, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 78216, April 18, 2016)  and denied a preliminary injunction to a Rastafarian inmate who wished to wear long hair and dreadlocks.

In Muhammad v. Crews, 2016 U.S. Dist. LEXIS 78744 (ND FL, June 15, 2016), a Florida federal district court, adopting a magistrate's recommendations in part, dismissed a number of claims by a Muslim inmate but remanded for evaluation under a proper framework his claim that he was denied a religious diet during a 4-year period.

In Owens v. Kernan, 2016 U.S. Dist. LEXIS 78854 (ED CA, June 16, 2016), a California federal magistrate judge dismissed a claim by an inmate serving a life sentence that denial of a conjugal visit to consummate his marriage violates his rights under RLUIPA.

Suit Seeks To Have Archbishop Sheen's Remains Moved To Illinois

Last Monday, the niece of the late Archbishop Fulton J. Sheen filed suit in a New York state trial court seeking to have Sheen's body, which is now buried in St. Patrick's Cathedral in New York City, disinterred and moved to a cathedral in Peoria, Illinois.  Sheen was ordained as a priest in Peoria.  He was the host of a widely watched award-winning television show titled Life Is Worth Living broadcast in the 1950's. Sheen served as Auxiliary Bishop of New York from 1951 to 1966.  He died in 1979.

Sheen is about to be beatified by the Vatican-- a step toward Sainthood.  The Beatification Ceremony will take place in Peoria since Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen.  According to the New York Times, New York church officials object to moving the remains, saying that it was Sheen's personal wish to be permanently buried beneath the high altar of St. Patrick’s Cathedral. They are apparently willing however to allow Sheen's remains to be moved temporarily to Peoria for the Beatification Ceremony, but then returned to New York.  The complaint (full text attached to press release) in Cunningham v. Trustees of St. Patrick's Cathedral, (Sup. Ct. NY County, filed 6/13/2016), contends that:

if Archbishop Sheen knew during his lifetime that he would be declared a Saint of the Roman Catholic Church that it would have been his wish that his remains be interred in St. Mary's Cathedral in Peoria.... St. Mary's was the church he attended with his family as a youth and where he made his first Holy Communion.

(See prior related posting.) As an aside, perhaps reflecting a deficient spell check program, the complaint (as opposed to the press release attached to it) consistently refers to Sheen's upcoming "Beautification" rather than "Beatification."

Canada Denies Entry To U.S. Mohel

Canadian border officials last month refused entry into Canada to a Detroit-based mohel who was crossing into neighboring Windsor in order to perform a Jewish ritual circumcision for a family in Windsor.  According to a June 8 report by the Detroit Jewish News, Dr. Craig Singer (a physician, as well as a mohel certified by Hebrew Union College) was told by border officials that he would need a permit as a temporary foreign worker, and that he could be prosecuted for performing a surgical procedure in Canada without proper authorization. Canada's Immigration and Refugee Protection Regulations, Paragraph 186(l) provide that a foreign national may work in Canada without a work permit "as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling."  Enforcement guidelines provide:

Persons seeking entry under the authority of R186(l) should be able to provide documentation to support their request for entry that addresses: the genuineness of the offer of employment of the religious denomination that seeks to employ them; and their ability to minister to a congregation under the auspices of that religious denomination.

House Holds Hearings On Global Religious Freedom

Yesterday a subcommittee of the House Foreign Affairs Committee held hearings titled The Global Religious Freedom Crisis and Its Challenge to U.S. Foreign Policy.  Witnesses from the State Department and the U.S. Commission on International Religious Freedom testified.  Transcripts of their testimony are available from the Committee's website.

Suit Between Indian Tribes Challenges Building Site For History Center

Non Doc reported yesterday on a federal court lawsuit filed in May by the Caddo Nation against the Wichita and Affiliated Tribes challenging the construction of a History Center by the Wichitas in western Oklahoma on land held jointly by the Wichita Tribe, Caddo Nation and Delaware Tribe.  A Caddo press release has further background.  The History Center is being built on a 71-acre parcel below a hill on which the Riverside Indian School is located.  The boarding school has been in operation since 1872 and was attended by Caddo students, as well as students from other tribes.  Students who died at the school were buried near it.  The Wichita say that all the graves are by the school at the top of the hill, but in the lawsuit members of the Caddo Nation contend that there are also graves at the site of the History Center below. According to Non Doc:

The Caddo filed a lawsuit May 25 seeking to halt construction for two weeks while the tribe conducted archeological work with ground-penetrating radar, or GPR, which can identify potential artifacts or features without the need to disturb a site by digging.

A U.S. District Court judge ordered a temporary stop to work at the site, one and a-half miles north of Anadarko, pending a hearing. The order was lifted May 31, and the Wichita resumed work. The Caddo then filed an appeal on June 7 to the 10th U.S. Circuit Court in Denver. No hearing date has been set at this time.

UN Commission Says ISIS Has Committed Genocide Against Yazidis

Yesterday, the International Commission of Inquiry on the Syrian Arab Republic established by the United Nations Human Rights Council issued a report (press release) concluding that ISIS' actions against the Yazidis constitutes genocide and amounts to crimes against humanity and war crimes. The 41-page report (full text) includes a Summary section which reads in part:

ISIS has sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part....

While noting States’ obligations under the Genocide Convention, the Commission repeated its call for the Security Council to refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction.

AP has more on the report.

In Liberia, Court Orders Sale of Seminary To Satisfy Amounts Owed To Fired President [UPDATED]

All Africa on Wednesday reported on the latest installment in the litigation in Liberia between Dr. Lincoln S. Brownell, the former president of Baptist Theological Seminary, and the Seminary.  Brownell was removed as president in 2007.  In 2013 he brought suit in Liberia's National Labour Court seeking damages for his removal, and the court awarded him $300,000 (US). In 2014, the Labour Court ordered the Seminary shut down, and now the Labour Court has issued a writ of execution on the property of the Seminary so Brownell can obtain the amounts due him under the court award. The writ calls for the sale of the real and personal property of the Seminary to realize the $300,000.  The writ calls for the arrest of the president of the Seminary if property cannot be found.

UPDATE: Front Page Africa (June 19) reported that Liberia's Supreme Court has issued a writ of prohibition preventing the sale of Seminary properties after evidence was introduced that the $300,000 had been paid.  The court immediately sent a team of sheriffs to reopen the Seminary.

Obama Meets At White House With Dalai Lama

President Obama met yesterday in the Map Room of the White House with the Dalai Lama, spiritual head of the Tibetan Buddhists and until his retirement in 2011 head of the exiled Tibetan government.  As reported by CNN, the meeting angered the Chinese who see the Dalai Lama as the head of a separatist movement.  In a statement (full text) issued after the meeting, the White House said:

The President and the Dalai Lama discussed the situation for Tibetans in the People’s Republic of China, and the President emphasized his strong support for the preservation of Tibet’s unique religious, cultural, and linguistic traditions and the equal protection of human rights of Tibetans in China....

... [T]he President reiterated the longstanding U.S. position that Tibet is a part of the People’s Republic of China, and the United States does not support Tibetan independence.  The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government will resume.

Charitable Contributions In Bitcoin?

Last week, the American Institute of Certified Public Accountants submitted a Comment Letter (full text) to the Internal Revenue Service in response to a two-year old IRS Release seeking input on issues relating to virtual currencies (such as Bitcoin). The AICPA said in part:

The AICPA encourages the IRS to release additional, much needed, guidance on virtual currency. Specifically, we request further guidance on the following items: ***

Provide guidance to explain when a donation of virtual currency, valued above $5,000, does not need a qualified appraisal to substantiate a charitable contribution deduction. Additionally, provide guidance on how to document the virtual donation values.

A charitable contribution of property with a value in excess of $5,000 requires a qualified appraisal from a qualified appraiser. An exception exists for contributions of publicly traded stock. The rationale is that the prices of these publicly traded stocks are available on published exchanges, thus not requiring a qualified appraisal. The same is true for most, if not all, types of virtual currency. That is, an exchange publishes the values of this currency on any given day. Therefore, a similar exception should apply for virtual currency donations in excess of a certain amount.

In Nigeria, Christian Students React To Ruling On Hijabs In Schools

Christian students in middle schools and high schools in the Osun State in Nigeria are upset about a June 3 Osun State High Court ruling holding that Muslim women students at the schools have a right to wear the hijab.  According to Tuesday's Premium Times, this is seen by Christian students as a breach of the understanding arrived at in 1975 when the state government took over schools originally founded by Christian missionaries. They see the court's decision as suggesting that wearing a hijab is a means of propagating Islam.  So at the urging of the Christian Association of Nigeria, on Tuesday Christian students showed up at school wearing Christian robes and vestments. Meanwhile, the High Court ruling has been appealed and teachers are attempting to ignore the controversy and continue teaching their classes as usual.

Court Says Suit Over Church Member's Trespassing Ban Should Be Dismissed

In Towns v. Cornerstone Baptist Church, 2016 U.S. Dist. LEXIS 77575 (ED NY, June 13, 2016), a New York federal magistrate judge recommended dismissing with prejudice the third amended complaint in a lawsuit by a long-time member of Cornerstone Baptist Church against the church, its pastor, the New York Police Department and others.  Plaintiff claimed that his rights were violated when, because of a dispute about church governance and programming, he was banned by the church from entering its property.  In a letter the church threatened him with arrest for trespassing if he attempted to enter church property. Among other things, the judge concluded that this was a non-justiciable religious controversy and that there was no joint action between the church and police officials, saying in part:

Although plaintiff has the right to worship how he chooses, Cornerstone's decision to ban him from its property is not a violation of his constitutional rights.

The court also rejected plaintiff's conspiracy and retaliation claims.

9th Circuit Hears Oral Arguments In Pregnancy Center Disclosure Law Challenge

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in  A Woman's Friend Pregnancy Resource Clinic v. Harris. (Video of full oral arguments).  In the case, a California federal district court refused to enjoin the effectiveness of California's Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. (See prior posting.)

In Israel, Sharia Courts Must Now Display Israeli Flag

In Israel, personal status matters, such as marriage and divorce and in some cases custody and inheritance, are handled by religious courts of the various religious communities. These courts-- Jewish religious courts for the Jewish population, Sharia courts for the Muslim population, as well as Druze and Christian courts-- are part of the state judicial system. I24 reported yesterday that Justice Minister Ayelet Shaked has ordered that Sharia courts must now display Israeli flags and national symbols. Previously they have not done so. Shaked has also taken steps aimed at appointment of the first female as an Israeli Sharia Court judge and member of the selection committee for Muslim religious judges.

Postal Service Issues Eid Postage Stamp

On June 10, the U.S. Postal Service announced the issuance of a new Eid Greetings Forever Stamp, recognizing the Muslim festivals of Eid al-Fitr and Eid al-Adha. The ceremony releasing the postage stamp was held at the Islamic Center of America in Dearborn, Michigan.  A second special ceremony was held on June 13 at the Muhammad Ali Center in Louisville, KY. World Religion News has more on the dedication ceremony and on reactions to the issuance of the stamp during this period of political tension over Muslim immigration.

Obama Counters Trump's Statements On Muslims

President Obama, speaking in Washington yesterday after a meeting with his National Security Council (full text of remarks) responded to claims by Republican presumptive nominee Donald Trump that the President should be using the term "radical Islam" to refer to terrorists, and more broadly to some of Trump's proposals relating to Muslim immigrants:

So there’s no magic to the phrase “radical Islam.”  It’s a political talking point; it's not a strategy.  And the reason I am careful about how I describe this threat has nothing to do with political correctness and everything to do with actually defeating extremism.  Groups like ISIL and al Qaeda want to make this war a war between Islam and America, or between Islam and the West.  They want to claim that they are the true leaders of over a billion Muslims around the world who reject their crazy notions.  They want us to validate them by implying that they speak for those billion-plus people; that they speak for Islam.  That’s their propaganda.  That's how they recruit.  And if we fall into the trap of painting all Muslims with a broad brush and imply that we are at war with an entire religion -- then we’re doing the terrorists' work for them....

... We now have proposals from the presumptive Republican nominee for President of the United States to bar all Muslims from emigrating to America.  We hear language that singles out immigrants and suggests that entire religious communities are complicit in violence.  Where does this stop?... 

Are we going to start treating all Muslim Americans differently?  Are we going to start subjecting them to special surveillance?  Are we going to start discriminating against them because of their faith?  We’ve heard these suggestions during the course of this campaign.  Do Republican officials actually agree with this?  Because that's not the America we want.  It doesn't reflect our democratic ideals.  It won’t make us more safe; it will make us less safe -- fueling ISIL’s notion that the West hates Muslims, making young Muslims in this country and around the world feel like no matter what they do, they're going to be under suspicion and under attack.  It makes Muslim Americans feel like they're government is betraying them.  It betrays the very values America stands for.

We've gone through moments in our history before when we acted out of fear -- and we came to regret it.  We've seen our government mistreat our fellow citizens.  And it has been a shameful part of our history.

Challenge To Sunday Exception In Property Maintenance Law Rejected

In State of Ohio v. McKinley, (OH App., June 9, 2016), defendant appealed his convictions for violating Youngstown, Ohio's Property Maintenance Code which requires that commercial building demolition projects once begun, continue daily until finished (excluding holidays, Sundays, and inclement weather days). Defendant's attempt to demolish a hospital building had not been completed after two-and-one-half years. Among the assignments of error rejected by an Ohio appellate court was defendant's claim that the statute, by allowing an exception for Sunday in assessing whether demolition work has continued, but not for other religions' days of rest, infringes defendant's free exercise rights. According to the court:

Appellant has failed to show how he has been injured by the exception to working on Sundays in the ordinance. Thus, he does not have standing to assert either a free exercise or establishment claim. 

9th Circuit Rejects RFRA Defense Raised By Hawaii Cannabis Ministers

In United States v. Christie, (9th Cir., June 14, 2016), the U.S. 9th Circuit Court of Appeals upheld the convictions of the founder of the Hawaii Cannabis Ministry and his wife on charges of conspiracy to manufacture and distribute marijuana.  The court rejected defendants' claim that their convictions violate their rights under the Religious Freedom Restoration Act.  The court held that the government had a compelling interest in mitigating the risk that cannabis from the Ministry would be diverted to recreational users, and that the government achieved that compelling interest in the least restrictive manner. The court said in part:

there is specific evidence that the Ministry’s distribution methods created a realistic possibility that cannabis intended for members of the Ministry would be distributed instead to outsiders who were merely feigning membership in the Ministry and adherence to its religious tenets. Additionally, the government’s interest in this case is all the more compelling given the Ministry’s well-publicized willingness to extend membership in the Ministry (with all that that entails) to minors.

Courthouse News Service reports on the decision.

Trump Reacts To Orlando Attack In Speech Focusing On Immigration

Yesterday Republican presumptive Presidential nominee Donald Trump delivered a controversial speech (full text) in reaction to the June 12 killing of 49 people at a night club in Orlando, Florida. Focusing on immigration, Trump said in part:

We cannot continue to allow thousands upon thousands of people to pour into our country, many of whom have the same thought process as this savage killer.

Many of the principles of Radical Islam are incompatible with Western values and institutions.

Radical Islam is anti-woman, anti-gay and anti-American.

I refuse to allow America to become a place where gay people, Christian people, and Jewish people, are the targets of persecution and intimidation by Radical Islamic preachers of hate and violence.

Here is part of the New York Times coverage:

Without distinguishing between mainstream Muslims and Islamist terrorists, Mr. Trump suggested that all Muslim immigrants posed potential threats to America’s security and called for a ban on migrants from any part of the world with “a proven history of terrorism” against the United States or its allies. He also insinuated that American Muslims were all but complicit in acts of domestic terrorism for failing to report attacks in advance, asserting without evidence that they had warnings of shootings like the one in Orlando.

Mr. Trump’s speech, delivered at St. Anselm College in Manchester, N.H., represented an extraordinary break from the longstanding rhetorical norms of American presidential nominees. But if his language more closely resembled a European nationalist’s than a mainstream Republican’s, he was wagering that voters are stirred more by their fears of Islamic terrorism than any concerns they may have about his flouting traditions of tolerance and respect for religious diversity.

Amish Man Wins Exemption From State Building Code

A Michigan state trial court judge has held that a member of the Old Order Amish is entitled to an exemption from the Michigan Residential Building Code.  According to the Sault St. Marie News, in a June 6 opinion visiting Judge Harold Johnson sitting in the 50th District Court held that denial of the exemption would violate both the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Amish defendant William Miller objected on religious grounds to requirements for electric and plumbing systems, indoor bathrooms, modernized kitchens and electronic devices such as smoke alarms and carbon monoxide detectors.

Bahrain Prohibits All Political Activity By Religious Leaders

Gulf News and Middle East Confidential report that on Saturday Bahrain's King Hamad Bin Eisa Al Khalifa promulgated amendments to the 2005 Political Society Law.  That law banned political societies with religious agendas and and banned the use of religious organizations to promote political ideas.  It also prohibited judges, diplomats and security and military personnel from joining any political society. Saturday's amendments, endorsed by parliament last month, however, go farther. They prohibit any religious figure who delivers sermons from being a member of a political society or engaging in political activities. Critics say the amendments are aimed at restricting the activities of the Shia population that have been protesting against the government and calling for structural political reforms. Justice Minister Shaikh Khalid Bin Ali Al Khalifa said that places of worship have been exploited for political purposes.