Recent Prisoner Free Exercise Cases

In Quick v. Annucci, 2016 U.S. Dist. LEXIS 115217 (ND NY, Aug. 29, 2016) a New York federal district court allowed a Muslim inmate to move ahead against the prison superintendent with his complaint that he was denied the cold alternative diet and was told it was only available to Jewish inmates.

In Lindh v. Warden, Federal Correctional Institution, 2016 U.S. Dist. LEXIS 116243 (SD IN, Aug. 30, 2016), an Indiana federal district court enjoined a federal prison under RFRA from conducting a visual strip search of a Muslim inmate as a pre-condition for a non-contact visit in the communications management housing unit.

In Meece v. Ballard, 2016 U.S. Dist. LEXIS 116364 (WD KY, Aug. 30, 2016), a Kentucky federal district court denied a preliminary injunction to a Reform Jewish inmate who claimed his free exercise rights were substantially burdened when he was removed from the kosher diet program for purchasing food inconsistent with Orthodox Jewish kosher rules, but not with Reform Jewish practices for kosher diets.

In Brown v. Clarke, 2016 U.S. Dist. LEXIS 117017 (WD VA, Aug. 31, 2016), a Virginia federal district court referred to mediation a Muslim inmate's claim that he was wrongly removed from the Common Fare diet for six month.

In Percival v. Stuhler, 2016 U.S. Dist. LEXIS 117129 (WD MI, Aug. 31, 2016), a Michigan federal district court dismissed an inmate's complaint that he was not allowed to attend group worship while he was in toplock for misconduct.

In Mohammed v. Daniels, 2016 U.S. Dist. LEXIS 117201 (ED NC, Aug. 31, 2016), a North Carolina federal district court dismissed as unproven a Muslim inmate's claim that he was denied access to his Quran during Ramadan. It also dismissed his complaint that he was not allowed to make a telephone call to the chaplain.

B.L. v. Zong, 2016 U.S. Dist. LEXIS 117509 (MD PA, Aug. 30, 2016), is a suit by a male inmate charging a female correctional officer with an extensive pattern of sexual predation.  Defendants did not move to dismiss plaintiff's claim that he was forced to engage in sexual activity that violated his religious tenets.  However a Pennsylvania federal magistrate judge recommended dismissing claims against others relating to plaintiff's work assignment that allowed the predation to occur and eventual transfer to another institution that briefly interfered with plaintiff's religious exercise.

In Burley v. Ball, 2016 U.S. Dist. LEXIS 117971 (WD MI, Sept. 1, 2016), a Michigan federal district court disagreed with a magistrate's recommendation (2016 U.S. Dist. LEXIS 118338, Aug. 12, 2016) and dismissed a Jewish inmate's complaint that the chaplain denied him a transfer to another facility where he could participate in a Passover seder and obtain food that was kosher for Passover.

In Johnson v. Roskosci, 2016 U.S. Dist. LEXIS 118804 (MD PA, Sept. 2, 2016), a Pennsylvania federal district court allowed an inmate to move ahead with his complaint under the free exercise clause that his religious cultural beads were taken from him because they did not have crosses on them. The court dismissed with leave to amend his retaliation as well as his 8th and 14th Amendment claims.

In Robinson v. Cameron, 2016 U.S. Dist. LEXIS 119090 (WD PA, Sept. 1, 2016), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that his religious rights are substantially burdened by the requirement that in order to participate in the sex offender program he must admit guilt. Plaintiff says his religious belief is that confession is to be made only to God.

Obama Presses China's Xi On Religious Freedom

President Obama is in China for the Sept. 4-5 G-20 Summit.  (See prior posting.) Today he met with China's President Xi, and the White House released a Readout of the President’s Meeting with President Xi Jinping of China which included the following:

The President reiterated America’s unwavering support for upholding human rights in China and stressed the need for China to protect religious freedom for all of its citizens.

IRS Adopts Final Rules Recognizing Same-Sex Marriages For Tax Purposes

Yesterday the Internal Revenue Service published in the Federal Register a release (full text) adopting final rules recognizing same-sex marriages for federal tax purposes. The new rules provide in part:

[A] marriage of two individuals is recognized for federal tax purposes if the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of domicile....

Two individuals who enter into a relationship denominated as marriage under the laws of a foreign jurisdiction are recognized as married for federal tax purposes if the relationship would be recognized as marriage under the laws of at least one state, possession, or territory of the United States....

The terms spouse, husband, and wife do not include individuals who have entered into a registered domestic partnership, civil union, or other similar formal relationship not denominated as a marriage under the law of the state, possession, or territory of the United States where such relationship was entered into....

Church's RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church's RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church's RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to "avoid the pre-emptive force" of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church's free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city's traffic safety concerns.

President Appoints Delegation To Canonization of Mother Theresa

President Obama yesterday announced the appointment of a delegation to represent the United States at the Canonization ceremony for Mother Teresa in the Vatican on September 4.  The delegation will be headed by Assistant to the President for Homeland Security and Counterterrorism, Lisa Monaco.  It also includes U.S. Ambassador to the Vatican Kenneth Hackett; National Security Council Executive Secretary Suzy George; CEO of Catholic Charities Sister Donna J. Markham; and CEO of Catholic Relief Services Dr. Carolyn Y. Woo.

Court Refuses To Dismiss Abortion Buffer Zone Challenge, But Denies Preliminary Injunction

In Reilly v. City of Harrisburg, (MD PA, Aug. 31, 2016), a Pennsylvania federal district court refused to grant a preliminary injunction to bar enforcement of a Harrisburg, Pennsylvania ordinance that provides for a 20-foot buffer zone around health care facilities to protect women seeking to access to abortion clinics from picketers and sidewalk counselors.  The court however refused to dismiss some of plaintiffs' challenges to the law.  In particular the court allowed plaintiffs to move ahead with their claims that the ordinance is not narrowly tailored and that it is overbroad.  The court rejected several other challenges including free exercise, vagueness and prior restraint claims.

French Official Proposes New Efforts To Align Muslims With French Secular Values

Al Jazeera reports that in France on Monday, Muslim leaders met with Interior Minister Bernard Cazeneuve to discuss the future of Islam in the country. The Interior Minister wants to set up three new organizations to help French Muslims align their beliefs with the secular values of France. One of the organizations would focus on integration of the Muslim faith, the second on the building of mosques, and the third on Imams. Imams would be required to use French instead of Arabic for their sermons, and they would need to "understand French values".  The move comes in the wake of new tensions in the country over full-body swim suits worn by Muslim women. (See prior posting.)

U.S. Pressure On China Over Religious Freedom As Obama Heads There For G20

On Sept. 4-5, President Obama will attend the G20 Summit in Hangzhou, China. (Yahoo News).  Yesterday the U.S. Commission on International Religious Freedom issued a statement (full text) urging the President to raise religious freedom concerns with China's President Xi and asking him to press for the release of prisoners of conscience.  This follows a White House meeting on Tuesday by National Security Advisor Susan E. Rice with Chinese human rights advocates to discuss religious freedom and other human rights issues in China. (White House statement).

Egypt Passes Church Construction Law

Egypt's Parliament yesterday approved a new law governing the building and renovation of Christian churches. 10% of Egypt's population is Coptic Christian.  Reuters reports that the law allows provincial governors (instead of the security services) to approve or deny church building and renovation permits. Coptic Church officials see then new law as progress, but Christian activists would have preferred a unified law governing both mosque and church construction. Restrictions in the new law are still more extensive than those which apply to mosque construction.   In the past, suspected Christian church building has led to sectarian riots.

Suit Charges Discriminatory Application of Driver's License Photo Accommodation

The ACLU yesterday filed a federal lawsuit against the Lee County, Alabama officials in charge of issuing drivers' licenses claiming that they are unconstitutionally administering the state's religious accommodation provision allowing head coverings in license photos.  The complaint (full text) in Allen v. English, (MD AL, filed 8/30/2016, alleges that plaintiff Yvonne Allen is a devout Christian who as part of her religious practice covers her hair with a headscarf.  When Allen requested to wear her head covering for her license photo, officials told her that the religious accommodation for head coverings only applies to Muslims.  The suit alleges that this practice violates the religion clauses of the federal and state constitutions. ACLU issued a press release announcing the filing of the lawsuit.

FOIA Suit Seeks All State Department Records On Combating Genocide

Yesterday, a conservative civil rights and religious liberty advocacy group filed a lawsuit seeking to enforce its Freedom of Information Act request for all State Department records and communications reflecting efforts to carry out the terms of the Genocide Convention, to hold ISIS accountable for atrocities it has committed, and to respond to the ISIS genocide of Christians.  The complaint (full text) in American Center for Law & Justice v. U.S. Department of State, (D DC, filed 8/30/2016), sets out in 22 paragraphs the scope of the records sought in its July 18 FOIA request sent to the State Department, and adds that the State Department "has a reputation for flaunting and disregarding its public accountability and FOIA obligations." The lawsuit follows actions by ACLJ in recent weeks pressing the United Nations to take action to respond to ISIS genocide against Christians and others.

So Far, 6 Charged Under Russia's New Law Limiting Missionary Activities

As previously reported, in July Russia's President signed into law new anti-terrorism legislation that, among other things, banned preaching, praying, proselytizing, and disseminating religious materials outside of officially-designated locations.  Last week, Forum 18 reported that so far six people have been charged under the new limits on missionary activity. Two Baptists, and a third person merely identified as Protestant, have had fines imposed on them.  A Hare Krishna adherent was acquitted.  Charges against two others-- a Pentecostal and a Seventh Day Adventist-- are still pending.  The Forum 18 posting has extensive details on each case.

Court Issues Narrow Preliminary Injunction Against North Carolina's Transgender Bathroom Access Law

In an 83-page opinion handed down last week, a North Carolina federal district court issued a narrow preliminary injunction preventing enforcement North Carolina's transgender bathroom access law against two students and one employee of the University of North Carolina.  In Carcano v. McCrory, (MD NC, Aug. 26, 2016), the court concluded that the provisions requiring transgender individuals to use school bathrooms, locker rooms and showers corresponding to the biological sex listed on their birth certificate likely violate Title IX as interpreted by the U.S. Department of Education and upheld by the 4th Circuit.  In reaching its conclusion, the court relied heavily on evidence that the prior practice of dealing with bathroom use by transgender students on a case-by-case basis had worked well.

The court however rejected plaintiffs' contention that the North Carolina law violates the equal protection clause, saying in part:

it appears that the privacy interests that justify the State’s provision of sex-segregated bathrooms, showers, and other similar facilities arise from physiological differences between men and women, rather than differences in gender identity....

The court reserved judgment on plaintiffs' substantive due process claims relating to informational privacy and unwanted medical treatment.  Baptist Press reports on the decision.

According to AP, plaintiffs yesterday filed an appeal with the 4th Circuit on the equal protection issue.

Appeals Court Refuses To Dismiss Suit Over Entitlement To Mosque Property

In United Islamic Society v. Masjed Abubakr Al-Seddiq, Inc., (MN App. Aug. 29, 2016), a Minnesota state appellate court affirmed a trial court's refusal to dismiss a suit over ownership of mosque property because "it is premature to decide that resolution of this case will necessarily involve improper government entanglement with religion."  The suit involves a dispute between two non-profit corporations over which one is is the rightful beneficiary of properties held in trust for the benefit of the Rochester, Minnesota Muslim community.  The court said in part:

A determination of whether this case can be resolved using neutral principles of law depends upon a close reading of UIS’s civil complaint and trust petition. In its civil complaint, UIS makes no mention of any religious doctrine and does not request relief for religious reasons. UIS instead requests a determination that it is the intended beneficiary of the trust based on the lease, warranty deeds, meeting minutes, and MAAS resolution....

Defendants argued that because the transfer of the properties to the North American Islamic Trust included a requirement that the properties are to be held in "waqf," the court will need to interpret the meaning of waqf, a religious term, to resolve the dispute.  The appellate court however disagreed, saying:

If the district court declares the declaration of trust valid, there appears to be no reason to interpret or analyze “waqf.” Similarly, if the district court declares the declaration of trust invalid ... a beneficiary determination likely depends on testimony and the documents in the record regarding the parties’ intent, which may include, among others, the warranty deeds that reference “Waqf (Islamic trust).” ...The limited information in the record about “waqf” simply does not suggest that a doctrinal analysis of “waqf” will be necessary to or dispositive of a beneficiary determination.

The court also rejected the argument that the case should be dismissed because of an arbitration clause in the declaration of trust, saying:

Because appellants did not invoke the arbitration clause in the declaration of trust until MAAS and NAIT’s summary-judgment motion, which was filed more than two years after the start of UIS’s civil action and after extensive litigation in both cases, we conclude that the district court’s finding that appellants waived their right to invoke the arbitration clause is not clearly erroneous.

Recent Articles, Books and Upcoming Conference of Interest

From SSRN:

• Jeffrey Benjamin Meyers, Nietzsche and the Law of the ‘The Other’: The Jew in Refraction, (August 19, 2016).
• Carl J. Minniti, The Lanham Act's Unconstitutional Hodgepodge, (17 Rutgers Journal of Law and Religion 315, 2016).
• Claudia E. Haupt, Unprofessional Advice, (University of Pennsylvania Journal of Constitutional Law, Vol. 19, 2017).
• Evelyn Aswad, The Role of U.S. Technology Companies as Enforcers of Europe's New Internet Hate Speech Ban, (Forthcoming in Columbia Human Rights Law Review Online).
• Dr. R.N. Mangoli &Tanushri Anchan, Honour Based Violence: A Threat to Humanity, (August 23, 2016).
• Eduardo M. Penalver, Laura Spitz, Elizabeth Brundige & Lucia Domínguez Cisneros, U.S. Nonprofit Activity in Cuba: The Cuban Context, (Cornell Legal Studies Research Paper No. 16-31, 2016).

Recent & Forthcoming Books:

• Nelson Tebbe, Religious Freedom in an Egalitarian Age, (Harvard Univ. Press, Jan. 2017).
• Harvey Cox, The Market as God, (Harvard Univ. Press, Sept. 2016).
• Finbarr Curtis, The Production of American Religious Freedom, (NYU Press, Aug. 2016).
• Robert W. Hefner (ed.), Shari'a Law and Modern Muslim Ethics, (Indiana Univ. Press, Aug. 2016).
• Robert Schmuhl, Fifty Years with Father Hesburgh-- On and Off the Record, (Univ. of Notre Dame Press, Aug. 2016).

Upcoming Conference:

• 2016 Conference of Religiously Affiliated Law Schools, Regent University, Sept. 29-30.

Court Upholds California's Removal of Belief Exemption From Vaccination Requirement

In Whitlow v. State of California, (SD CA, Aug. 26, 2016), a California federal district court refused to grant a preliminary injunction against California's recently enacted SB 277 , a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior exemption for those whose personal beliefs oppose immunization. The court said:

it is clear that the Constitution does not require the provision of a religious exemption to vaccination requirements, much less a PBE.

San Diego Union Tribune reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Daker v. Warren, (11th Cir., Aug. 22, 2016), the 11th Circuit reversed and remanded the district court's dismissal of a Muslim inmate's free exercise challenge (but not his RLUIPA challenge) to a total ban on hardcover books and the dismissal of his RLUIPA challenge (but not his free exercise challenge) to holding religious services only on Wednesdays.

In Berger v. Burl, 2016 U.S. Dist. LEXIS 111380 (ED AR, Aug. 22, 2016), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 111559, Aug. 5, 2016) and dismissed an an atheist inmate's claim that his rights were infringed when he was not allowed to grow a beard and long hair for non-religious reasons while others were permitted to do so for religious reasons.  The court allowed him to proceed on his complaint that a Christian group was allowed to line up outside his cell to sing and preach when he was placed in lock down.

In Robertson v. Call, 2016 Kan. App. Unpub. LEXIS 682 (KS App., Aug. 19, 2016), a Kansas appellate court affirmed dismissal of a free exercise challenge by a Messianic Jewish inmate to a rule that prevents prisoners in segregation from having face-to-face meetings with their spiritual advisers.  The court remanded for further findings an Establishment Clause challenge to the rule.

In Martin v. MacLaren, 2016 U.S. Dist. LEXIS 112812 (WD MI, Aug. 24, 2016), a Michigan federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint that he was denied access to his book titled "The Fundamentals of the Yoruba Religion (Orisa Worship)."

In Al-Azim v. Everett, 2016 U.S. Dist. LEXIS 113109 (ED VA, Aug. 23, 2016), a Virginia federal district court allowed an inmate to move ahead with his complaint that he was not receiving meals that complied with Nation of Islam dietary requirements. However the court dismissed his complaints about the need for more time for group religious activities and his inability to purchase CDs of Minister Farrakhan's sermons directly from the Final Call, Inc.

In Blalock v. Smith, 2016 U.S. Dist. LEXIS 114215 (ND NY, Aug. 24, 2016), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with his complaint that he was not permitted to wear his pants hemmed above the top of his ankle as religiously required; but recommended dismissing complaints over his inability to attend two congregate prayer services and over a cell search that confiscated religious books.

In Greene v. County of Durham Office of the Sheriff Department, 2016 U.S. Dist. LEXIS 114425 (MD NC, Aug. 26, 2016), a North Carolina federal district court permitted a Muslim inmate to proceed with a claim that arose when he was a pre-trial detainee that he was denied access to the day room for Islamic studies, but dismissed for failure to exhaust administrative remedies his complaint that his Ramadan meal was thrown away and he was not given a replacement.

Texas Anti-SLAPP Law Does Not Protect Free Exercise Rights

In Davis v. Mount Gilead Baptist Church, (TX App., Aug. 25, 2016), a Texas state appellate court held that Texas' anti-SLAPP statute-- designed to prevent the use of frivolous suits to chill speech rights-- only applies to suits filed in response to defendant's exercise of free speech, right of petition or right of association.  It does not apply to suits that respond to free exercise of religion.

Legislative Scorecard On Issues Important To Non-Theists Released

The Center for Freethought Equality last week released its scorecard for U.S. House members in the 114th Congress on seven votes of importance to secular and non-theistic Americans. In releasing the scorecard, CFE said in part:

Representatives were scored based on their voting records on legislation that either bolstered or weakened the separation of church and state. The scorecard included legislators’ co-sponsorship for the Darwin Day Resolution (H.Res. 548), which would recognize February 12 as a celebration of the accomplishments of naturalist Charles Darwin while opposing the teaching of creationism and intelligent design in public schools....

Of all the legislators ranked, Rep. Judy Chu (CA-27) and Rep. Mike Honda (CA-17) had the highest scores.

Denial of Zoning Variance To Yeshiva Violates RLUIPA

In Yeshiva Gedolah Na'os Yaakov v. Township of Ocean NJ, (D NJ, Aug. 25, 2016), a New Jersey federal district court held that that Ocean, New Jersey's Zoning Board of Adjustment violated RLUIPA when it denied a use variance to allow plaintiffs to operate a Jewish post-high school yeshiva.  Making findings about the school's code of conduct for its students, the court ordered the township to grant approval of use of the building for a school of up to 80 students (less than the 96 the school wanted), subject to a detailed list of improvements and changes to the property. Reporting on the decision, Asbury Park Press quoted plaintiffs' attorney who said in a prepared statement:

Zoning regulation should never be used as a tool to accommodate the unreasonable fears and prejudice of small-minded individuals desperate to keep a certain population out of their neighborhoods.