Religion Clause

Sunday, September 11, 2016

Recent Prisoner Free Exercise Cases

In Begnoche v. Derose, 2016 U.S. Dist. LEXIS 119747 (MD PA, Sept. 2, 2016), a Pennsylvania federal district court dismissed an inmate's claim that the Therapeutic Community program involved religious content and interfered with his ability to practice his Native American religious beliefs.

In Shakur v. Thomas, 2016 U.S. Dist. LEXIS 119767 (ND NY, Sept. 6, 2016), a New York federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 72707, June 2, 2016)(see prior posting), finding a plausible showing that an inmate's position as a Muslim Shia inmate facilitator is protected 1st Amendment speech or conduct for purposes of a retaliation claim. The court also adopted uncontested recommendations that plaintiff be allowed to move ahead with various claims of denial of Ramadan and festival meals and participation in congregational prayer.

In Espinosa v. Stogner, 2016 U.S. Dist. LEXIS 120646 (D NV, Sept. 6, 2016), a Nevada federal district court dismissed an inmate's complaint that prison authorities violated the Free Exercise and Establishment clauses by refusing to recognize his "secular/religious Humanism" as an accepted faith group. However the court granted plaintiff leave to amend his complaint to allege "how his brand of humanism differs from tradition secular moral philosophy in a way sufficient to qualify as a religion under the Free Exercise Clause."

In Wilson v. Avertest, 2016 U.S. Dist. LEXIS 121593 (MD PA, Sept. 7, 2016), a Pennsylvania federal magistrate judge recommended dismissal of free exercise and 4th Amendment complaints by plaintiff who under a house arrest and alcohol monitoring program was required to undergo a below-the-waist strip search. Plaintiff claimed that his Jewish faith requires that he "not to bare his nakedness for any unnecessary reason."

In Wilkes v. Hunter, 2016 U.S. Dist. LEXIS 121707 (ND CA, Sept. 8, 2016), a California federal district court dismissed, with leave to amend, plaintiff's claim that jail deputies refused to allow him to bring a Christian cross into jail.

In Brown v. Mohr, 2016 U.S. Dist. LEXIS 122292 (SD OH, Sept. 9, 2016), an Ohio federal magistrate judge recommended refusing to dismiss a Jewish inmate's claim that he was denied a kosher diet for 10 weeks, but recommended dismissing his complaint that he was housed in a cell with a neo-Nazi inmate.

Saturday, September 10, 2016

Court Rejects Sioux Challenge To Pipeline On Sacred Land, But Feds Delay Permission

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC Sept. 9, 2016), the D.C. federal district court refused to enjoin construction of the Dakota Access Pipeline near the Standing Rock Indian Reservation on sacred ancestral lands of the Sioux Tribe. (See prior related posting.) Summarizing its 58-page decision, the court said:

The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.

However, shortly after the decision was handed down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement (full text) reading in part:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals....

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites. It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

CNN reports on developments.

Friday, September 09, 2016

Settlement Ends Long-Running Dispute Over Control of Sikh Temple In California

A long-running dispute over control of a Sikh Temple in Yuba City, California, appears to have come to an end after a court-ordered election of new board members resulted in a cooperative transition of leadership. According to yesterday's Appeal-Democrat, the election (ordered by the court to be held without regard to the Temple by-laws quorum requirements) led to victory by a slate of 73-board members who were opposed to the incumbent directors. The parties then entered a settlement agreement covering all four of the pending cases growing out of the controversy. The agreement was presented to the court yesterday. Under the settlement, the new directors take office immediately and they will amend the Temple's bylaws to reduce from 8 to 4 years the term of board members. During a board meeting yesterday evening, the new board received the keys and financial records of the Temple.

Another Suit Challenges Feds' Interpretation Of Title IX To Protect Transgender Rights

On Wednesday, another lawsuit was filed-- this time by a group of Minnesota parents-- challenging the Department of Education and Department of Justice's recent Guidance declaring that Title IX protects transgender students from discrimination and requires that they be permitted to use restrooms and locker rooms consistent with their gender identity. The complaint (full text) in Privacy Matters v. U.S. Department of Education, (D MN, filed 9/7/2016) contends that the Guidance violates the Administrative Procedure Act, Title IX, the right to privacy and to control the upbringing of one's children. It also contends that the Guidance infringes plaintiffs' religious free exercise rights under the state and federal constitutions and RFRA, saying:

Some Student Plaintiffs have a sincere religious belief that they must practice modesty, which includes a requirement that they not undress or use the restroom with the opposite sex.

Some Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect the modesty of their children. This includes a requirement that their children not undress or use the restroom with the opposite sex.

ADF issued a press release announcing the filing of the lawsuit.

Muslim Police Officer Sues For Religious Accommodation

A Muslim police officer in the Town of West New York, NJ, filed a religious discrimination lawsuit this week in New Jersey federal district court alleging that he was not provided a religious accommodation to the police department's Appearance Policy. The complaint (full text) in Awadallah v. Town of West New York, (D NJ, filed 9/7/2016), alleges that plaintiff wears a light beard as part of his Muslim religious beliefs. It contends that defendants initially denied the possibility of an accommodation and then delayed action on his request. He was not permitted to work overtime while he was wearing his beard, and was required to submit proof of his religious beliefs. Ultimately his accommodation request was denied. Plaintiff alleges this violates Title VII and the New Jersey Law Against Discrimination. [Thanks to Jeff Pasek for the lead.]

6th Circuit Dismisses Suit Over Catholic Bishops' Health Care Directives

In Means v. U.S. Conference of Catholic Bishops, (6th Cir., Sept. 8, 2016), the U.S. 6th Circuit Court of Appeals affirmed a Michigan federal district court's dismissal of a suit against the U.S. Conference of Catholic Bishops (USCCB) and against three individuals who served as chairs of the Catholic Health Ministries-- the sponsor of a health care system that includes the Catholic hospital at which plaintiff Tamesha Means claims she was inadequately treated. Means visited the hospital when she prematurely went into labor at 18 weeks into her pregnancy. The hospital, complying with the USCCB's Catholic health care directives, did not give Means the option of terminating her pregnancy, even though her physician suspected she had a serious bacterial infection that can cause infertility and even death. After the statute of limitations on medical malpractice had run, Means sued the entities responsible for promulgating and adopting the Catholic health care directives, charging them with negligence.

The 6th Circuit dismissed the USCCB from the case for lack of personal jurisdiction. As to the other defendants, the court said in part:

Means asks us to recognize a duty under Michigan law on the part of a religious organization to a specific patient to adopt ethical directives that do not contradict the medical standard of care. Whether such a duty exists is far from certain, especially if the standard of care violates the organization’s religious beliefs. Nevertheless, even if the CHM defendants had such a duty, Means’s factual allegations do not create the plausible inference that any breach of that duty proximately caused any injury to Means within the strictures of Michigan negligence law....

Means alleges—and we do not doubt—that she suffered physical and mental pain, emotional injuries, a riskier delivery, shock and emotional trauma from making funeral arrangements for her dead child, and other “discomforts and pain.” But these allegations are not sufficient to state an injury under Michigan negligence law. In Michigan, “present physical injury” is necessary to state a claim for negligence.

[Thanks to Tom Rutledge for the lead.]

Two Charged With Conspiracy In Plan To Coerce Jewish Religious Divorce

On Wednesday, the U.S. Department of Justice announced the filing of a criminal complaint against an Israeli rabbi connected with the Satmar Hasidic community in Kiryas Joel, New York, as well as against a 25-year old Kiryas Joel resident, charging them with conspiracy to commit kidnapping and conspiracy to commit murder for hire. The plot, revealed to authorities by a confidential source ("CS") who was contacted by the two, started as a planned kidnapping in order to coerce the victim into granting a Jewish religious divorce ("get") to the intended victim's wife. The plot developed into one of possible murder of the victim. The criminal complaint (full text) in United States v. Liebowitz, (SD NY, filed 9/6/2016), charges Rabbi Aharon Goldberg and Shimen Liebowitz with advancing over $57,000 to have the plan carried out. JTA reports on the case.

Thursday, September 08, 2016

Sioux-- and Green Party Candidate-- Protest North Dakota Pipeline Across Sacred Land

The Washington Post this week reported on the showdown between members of the Standing Rock Sioux Tribe and the company building the Dakota Access crude-oil pipeline across North and South Dakota. The tribe claims that the pipeline will run through sacred ancestral lands which were taken from the tribe over the years. It will cross the Missouri River just a mile north of the Standing Rock Indian Reservation. Thousands of Native Americans have traveled to North Dakota over the past weeks to join the protest. As reported by CBS News, on Tuesday Green Party Presidential candidate Jill Stein visited the protest site and, at the urging of activists, spray painted a message on a bulldozer blade. In response, yesterday a warrant was issued for Stein's arrest, charging her with misdemeanors-- criminal trespass and criminal mischief. On Tuesday, a judge issued a temporary restraining order halting construction only on part of the land. A ruling on the Tribe's request for an injunction is expected Friday. (NPR News).

In Canada, Gay Activists Sue Christian Group That Infiltrated Pride Parade

Last month in Canada, two LGBT activists filed a class action lawsuit against a group of Christian conservatives who, calling themselves the "Gay Zombies Cannabis Consumers Association," registered under false pretenses to march in the 2016 Toronto Pride Parade. According to the complaint (full text) in Hudspeth v. Whatcott, (Ont. Super. Ct., filed 8/11/2016), the Gay Zombies, wearing green costumes that disguised their identities, handed out 3000 flyers showing graphic pictures of sexually transmitted diseases and vilifying homosexuality. Alleging civil conspiracy, intentional infliction of mental distress, and defamation, the suit seeks an injunction to bar defendants from future participation in or attendance at the Toronto Pride Parade; an order barring them from further distribution of the offensive flyers; and damages totaling $103 million (Canadian). Daily Xtra (Aug. 12) reported on the lawsuit.

Massachusetts Agency Says Transgender Non-Discrimination Can Apply To Some Church Events

Massachusetts Senate Bill 2407, banning discrimination on the basis of gender identity in public accommodations, becomes effective October 1. The bill also requires public accommodations to allow restroom use consistent with a person's gender identity. Last week (Sept. 1), the Massachusetts Commission Against Discrimination released its Gender Identity Guidance (full text) setting out the Commission's interpretation of the new law. The Guidance suggests that in some situations, the anti-discrimination ban can apply to churches:

Under G.L. c. 272, § 98, places of public accommodation may not discriminate against, or restrict a person from services because of that person’s gender identity. For example, a hotel or motel may not refuse to book a room for a person because of the person’s gender identity. Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

The Guidance adds in a footnote: "All charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis." The Guidance also provides: "In the limited circumstances where it is necessary, an individual’s gender identity may be demonstrated by any evidence that the gender identity is sincerely held as a part of the person’s core identity." Daily Caller reports on the Guidance.

Suit Says Arizona Charter School Teaches Religious Curriculum

Yesterday Americans United filed a federal court lawsuit alleging that an Arizona public charter school teaches a religiously-based required American Government course, and interjects religion in a number of other parts of its curriculum. The complaint (full text) in Doe v. Heritage Academy, Inc., (D AZ, filed 9/7/2016), alleges that the taxpayer-funded charter school with three campuses in Arizona violates the Establishment Clause as well as the Arizona constitution by providing religious education to its students. The required American Government class is taught by the school's founder and principal, Earl Taylor, Jr., and uses materials from the National Center for Constitutional Studies-- an organization founded by Taylor. The complaint alleges in part:

In class, Taylor teaches the students that the Ten Commandments — including those that mandate worship of God — must be obeyed in order to attain happiness; that socialism violates God’s laws; and that true patriots believe in the “universal religion of all mankind,” the tenets of which ... incorporate the beliefs of some Christian denominations.

AU issued a press release announcing the filing of the lawsuit. [Thanks to Jeff Pasek for the lead.]

Challenge To Church Governance Matters Dismissed On Ecclesiastical Abstention Grounds

In Azige v. Holy Trinity Ethiopian Orthodox Tewahdo Church, (NC App., Sept. 6, 2016), a North Carolina state appellate court dismissed on ecclesiastical abstention grounds a lawsuit by a faction of church members alleging that the church bylaws had been violated in extending the terms of certain parish council members and in taking other actions. The court said in part:

Although plaintiffs seek to present this dispute as a simple procedural disagreement over the adoption of bylaws in accord with proper procedure, the substance of the complaint belies this claim. The amended complaint alleges that each plaintiff is “a registered member” of the church; defendants dispute their membership....

Membership in a church is a core ecclesiastical matter. The power to control church membership is ultimately the power to control the church. It is an area where the courts of this State should not become involved....

The issues before us would require interpretation of the bylaws which do impose doctrinal requirements. Even if a declaration of plaintiffs’ status as registered members is not specifically the issue before us, in order to determine if plaintiffs even have standing to bring the other issues or to determine if the correct number of members voted for the challenged amendments, the trial court would need to address the contested membership status...

Wednesday, September 07, 2016

Obama Nominates First Muslim Federal Court Judge

As reported by National Law Journal, yesterday President Obama nominated (White House announcement) Abid Qureshi, partner in the D.C. law firm of Latham & Watkins, for a federal district judgeship in the District of Columbia. Qureshi, a Harvard Law School graduate, is the first Muslim ever nominated for a seat on a federal court. A litigator whose expertise includes white collar defense, Qureshi is also the global Chair of Latham’s Pro Bono Committee. (Bio). Muslim Advocates issued a press release commending President Obama for the nomination.

Israel's Supreme Court OK's Sabbath Rail Line Repairs

Yesterday Israel's Supreme Court sitting as the High Court of Justice stepped into the government's political battle over whether planned repairs to the country's commuter rail lines can take place on Saturdays, the Jewish Sabbath. As reported by JTA, last week, Prime Minister Benjamin Netanyahu canceled permits issued by Transportation Minister (and political rival) Yisrael Katz that allowed the work to proceed on the Sabbath. Katz's permits led the ultra-Orthodox parties (part of Netanyahu's coalition government) to threaten to bring down the government. Netanyahu's intervention meant that the repair work did not pick up until Saturday night and this led to traffic jams and stranded commuters on Sunday (a workday in Israel).

Following this, a left-wing lawmaker (Meretz party) filed a petition with Israel's Supreme Court seeking to get the Sabbath repairs to move ahead. As reported by The Forward and Arutz Sheva, yesterday the Court issued an interim order barring Netanyahu from stopping urgent Saturday work. According to the Court, the Railway Authority has been issued a permit allowing Saturday work during the entire month of September, and only the Labor Minister has authority to revoke the permit. A special Knesset session to discuss the matter has been postponed until September 19, so that Arab members of the Knesset who will be celebrating Eid Al-Adha the week before will be able to attend.

Obama Speaks To Laotians On Human Rights and Religious Liberty

Yesterday, as part of his trip to Laos, President Obama delivered an address (full text) to the people of the country. Speaking at the Lao National Cultural Hall in Vientiane, his remarks included references both to Laos' religious and cultural heritage and to America's views on human rights:

... [I]n countless stupas and in your daily lives, we see the strength that draws -- so many of you from your Buddhist faith -- a faith that tells you that you have a moral duty to each other, to live with kindness and honesty, and that we can help end suffering if we embrace the right mindset and the right actions. And in literature like the epic of Sinxay, we see the values that define the people of Laos, which is modesty and compassion, and resilience and hope....

I believe that nations are stronger and more successful when they uphold human rights. We speak out for these rights not because we think our own country is perfect -- no nation is -- not because we think every country should do as we do, because each nation has to follow its own path. But we will speak up on behalf of human rights because we believe they are the birthright of every human being. And we know that democracy can flourish in Asia because we’ve seen it thrive from Japan and South Korea to Taiwan.

Across this region, we see citizens reaching to shape their own futures. And freedom of speech and assembly, and the right to organize peacefully in civil society without harassment or fear of arrest or disappearing we think makes a country stronger. A free press that can expose abuse and injustice makes a country stronger. And access to information and an open Internet where people can learn and share ideas makes a country stronger. An independent judiciary that upholds the rule of law, and free and fair elections so that citizens can choose their own leaders -- these are all the rights that we seek for all people.

We believe that societies are more stable and just when they recognize the inherent dignity of every human being -- the dignity of being able to live and pray as you choose, so that Muslims know they are a part of Myanmar’s future, and Christians and Buddhists have the right to worship freely in China. The dignity of being treated equally under the law, so that no matter where you come from or who you love or what you look like you are respected. And the dignity of a healthy life -- because no child should ever die from hunger or a mosquito bite, or the poison of dirty water. This is the justice that we seek in the world.

Tuesday, September 06, 2016

NYT: Peale Had Religious Influence on Trump

The New York Times yesterday reports on the influence of New York City's Marble Collegiate Church and its former leader, Dr. Norman Vincent Peale, on Republican presidential candidate Donald Trump.

Firing of Employee For Anointing Office With Oil Is Upheld

In Cheeley v. City of Miami, (SD FL, Aug. 10, 2016), a Florida federal district court dismissed a Title VII religious discrimination claim brought by an employee in Miami's Capital Improvements Program department. Eric Cheeley was fired after he admitted that he had applied an oily liquid in the shape of crosses on walls, cubicles and doorways-- anointing various areas in order to bless the department. He contended that the city should have accommodated his sincerely held religious belief that he needed to anoint the office. The court concluded, however, that:

Cheeley has not presented sufficient evidence to permit a reasonable juror to find that the City could have accommodated Cheeley’s religious beliefs without undue hardship.

Yesterday's Christian Post reported on the decision.

Winery Says Zoning Restrictions On Outdoor Weddings Violate RLUIPA and Speech Rights

The Ventura County Star reported yesterday on a lawsuit filed in a California federal district court by a southern California winery challenging a Ventura County ordinance that requires conditional use permits for outdoor events, including weddings. Six months ago the county denied Epona Estate's application for a permit to allow weddings, charitable fundraisers, luncheons and similar events at the winery. The suit contends that the restriction on outdoor weddings violates the winery's free speech rights as well as its rights under the Religious Land Use and Institutionalized Persons Act.

Monday, September 05, 2016

Iran's Supreme Leader Questions Saudi Control of Hajj

According to today's Jerusalem Post, Iran's supreme leader Ayatollah Ali Khamenei has questioned Saudi Arabia's continued control of the hajj pilgrimage. Last year over 2000 pilgrims, many of them Iranians, died in a crush of crowds outside Mecca. (See prior posting.) Iran is a regional rival of Saudi Arabia, and this year talks on arrangement for Iranians to make the hajj broke down. No Iranians will attend this year. (See prior posting.) A message on Khamenei's website reads:

Because of these (Saudi) rulers' oppressive behavior towards God's guests (pilgrims), the world of Islam must fundamentally reconsider the management of the two holy places and the issue of haj.

The hajj is projected to begin on September 9.