Religion Clause

Friday, January 20, 2017

Homeowners Sue Over Opposition To Their Christmas Display

A lawsuit alleging violations of the federal Fair Housing Act and the Idaho Human Rights Act has been filed by a Hayden, Idaho couple who are in a battle with their neighbors and their homeowners association over an elaborate Christmas display they put on every year to raise funds for two local charities. The display, which includes a live nativity scene with a small camel, sheep, donkey, Santa Claus, and the Grinch, attracts large crowds. The complaint (full text) in Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, filed 1/13/2017), alleges religious discrimination, contending that the Homeowners Association objects to the couple's Christian beliefs being pressed on others in the neighborhood. KHQ News report on the lawsuit.

West Virginia School District Sued Over Bible Lessons

As announced in a press release from Freedom From Religion Foundation, the organization has filed suit against the Mercer County, West Virginia schools challenging the "Bible in the Schools" program which provides Bible study to elementary and middle school students in 19 schools. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, filed 1/18/2017), contends that Bible classes have been taught in the county schools for over 75 years, and that the Bible instruction by teachers who travel from school to school violates the Establishment Clause.

Court Orders Further Hearing In Suit By Church Member Challenging His Expulsion

In Campbell v. Shiloh Baptist Church, 2016 Conn. Super. LEXIS 3277 (CT Super. Ct., Dec. 1, 2016), plaintiff Thedress Campbell claims that Shiloh Baptist Church and its pastor removed him from the membership list and barred him from the church without following the church's bylaws. Campbell had questioned expenditures by the pastor and had reported asbestos in the church to state authorities. The Connecticut trial court held in part:

Although the Connecticut Supreme Court has articulated a preference for the application of the neutral principles approach in property disputes, it has not had occasion to articulate whether such an approach is to be followed in the resolution of other types of internal church conflicts. This court believes that it would....

... [T]he Constitution and Bylaws of the Church vests the authority for the expulsion or dismissal of members in the membership or congregation of the Church.... [T]he court is not deprived by the first amendment of jurisdiction to resolve whether the plaintiff was in fact expelled from the Church because this decision is not so intertwined with religious principles that it can make this determination without interfering with a legitimate claim to the free exercise of religion. Such an issue may be resolved in the present case by the application of neutral principles of law, here those of the secular laws of corporations. The evidence presented to the court did not address whether the voice of the Church was given expression by vote of its membership.... [T]herefore the court orders that the hearing be continued for the limited purpose of determining whether the Church had actually spoken, or whether the ... letter [informing him of his dismissal] was an ultra vires act of Pastor Porter and Deacon Jones.

Thursday, January 19, 2017

Florida Supreme Court Denies Review In Tax Credit Scholarship Challenge

Yesterday in McCall v. Scott, (FL Sup. Ct., Jan. 18, 2017) the Florida Supreme Court declined to hear in appeal in a case challenging the constitutionality of Florida's Tax Credit Scholarship Program. In August, a state appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to pursue the case. (See prior posting.) Tampa Bay Times reports on the state Supreme Court's action.

Court Upholds Refusal To Accommodate Correctional Officer's Khimar

In Tisby v. Camden County Correctional Facility, (NJ App., Jan. 18, 2017), a New Jersey state appeals court upheld the refusal by the warden of a state correctional facility to grant a religious accommodation to a female Muslim corrections officer who sought to wear a khimar (a tight fitting head covering without a veil) at work. The appeals court agreed that the requested accommodation would impose an undue hardship in light of the safety risks involved and the ability to hide contraband in head coverings. NJ.com reporting on the decision says that plaintiff will appeal to the state Supreme Court.

New York Trial Court Holds State's "Get" Law Unconstitutional In Some Applications

In an important decision handed down last week, a New York state trial court held unconstitutional, at least in some situations, the New York statutory provision allowing a divorce court to pressure a Jewish husband economically to give a Jewish religious bill of divorce ("get") to his wife. Under New York's DRL §236B(6)(o), when a wife sues for divorce the court may consider her husband's maintenance of a barrier to her remarriage in deciding on distribution of marital property or the award of spousal maintenance.

In Masri v. Masri, (NY Sup Ct Orange Cty, Jan. 13, 2017), the court recognized that a previous state appellate case had upheld the constitutionality of the statutory provision where the husband has withheld a get to extract concessions from the wife in the matrimonial litigation. However the court distinguished the case before it from that precedent. The court said in part:

The withholding of a Get to extort financial concessions from one's spouse constitutes simony, i.e., an exchange of supernatural things for temporal advantage. When the husband himself so unambiguously subordinates his religion to purely secular ends, he may properly be said to have forfeited the protective mantle of the First Amendment, and the court may, quite rightfully and without constitutional hindrance, impose the secular remedies authorized by the Domestic Relations Law.

Here, however, there is not the slightest evidence that the Defendant has withheld a Get from Plaintiff to extract concessions in matrimonial litigation or for other wrongful purposes. According to Plaintiff's own evidence, Defendant has invoked religious grounds for refusing to cooperate in obtaining a Jewish religious divorce, i.e., that Plaintiff by going to secular court has waived her right to rabbinical arbitration concerning the Get....

... [I]n the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments.... There is no evidence that the Defendant has withheld a Get to extract concessions ... or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

New York Law Journal reports on the decision.

Wednesday, January 18, 2017

In SCOTUS Oral Argument On Trademark Law, Blasphemy Becomes Relevant

The U.S. Supreme Court today heard oral arguments in Lee v. Tam (transcript of full oral argument). At issue is whether the disparagement provision in the Lanham Act is an unconstitutional restriction on speech. The statute provides that the Patent and Trademark Office may refuse to register a trademark that disparages individuals, institutions, beliefs or national symbols, or brings them into contempt or disrepute. In the case the PTO refused to register "The Slants" as the name of a rock band on the ground that the name is disparaging to Asians. SCOTUSblog's case page has links to a wealth of primary and secondary material on the case.

In his rebuttal in today's oral argument, Deputy Solicitor General Malcolm Stewart made an interesting reference to trademarks that may constitute illegal insults to religion under the law of a foreign country:

The preparation of the principal register is not just an ancillary consequence of this program. It's the whole point to provide a list of trademarks so other people know what has been approved, what's off limits.

And the consequence of Mr. Connell's position is that the government would have to place on a principal register, communicate to foreign countries the biased racial epithets, insulting caricatures of venerated religious figures. The test for whether the government has to do that can't be coextensive with the test for whether private people can engage in that form of expression.....

... [T]he government, at the very least, has a significant interest in not incorporating into its own communications words and symbols that the public and foreign countries will find offensive.

(See prior related posting.)

City Removes Cross From Park To Settle Lawsuit

A settlement has effectively been reached in Freedom From Religion Foundation v. City of Santa Clara, a suit challenging a cross on city owned property in Santa Clara, California. (See prior posting.) The cross was originally donated in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. According to a press release yesterday from FFRF, the cross has been removed and donated to the Catholic Santa Clara University. The case remains pending in a California federal district court until motions to dismiss are filed and approved.

Trump To Be Sworn In On Family Bible and Lincoln Bible

According to Religion News Service, at his inauguration this Friday, Donald Trump will take the oath of office on two Bibles-- his family Bible given to him by his mother in 1955 when he graduated Sunday school, and the Lincoln Bible borrowed from the Library of Congress. The Lincoln Bible was also used by President Obama during his swearing in ceremonies.

Chanel Sued By Former Employee Alleging Denial of Religious Accommodation

The Fashion Law reported yesterday on a religious discrimination lawsuit filed last November in a California state trial court against the fashion company Chanel. Mia Komarevic, former manager of a Chanel outlet in San Francisco, alleges that after she reported a Director who had violated company policy by wearing merchandise out of the store for the night and then returning it as new, her fellow managers retaliated in several ways. Among other things, they attempted to force her to resign by refusing to grant her a religious accommodation, forcing her to work on Sundays in violation of her Serbian Orthodox beliefs. Ultimately she was fired for unspecified "performance reasons." Earlier this month, defendants removed the case to federal district court for the Northern District of California. (Komarevic v. Chanel, Inc., (Case No. 4:17-cv-00008).

Tuesday, January 17, 2017

Ten More Appointed To U.S. Holocaust Memorial Council

Yesterday the White House announced that President Obama has appointed ten more individuals to the board of the U.S. Holocaust Memorial Council. Perhaps the best-known among this group of appointees is Melissa Rogers who has served in the Obama administration as Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships. Also appointed was Sarah Hurwitz who has served as Michelle Obama's speech writer. Others appointed to the Council are: Daniel Benjamin; Michael Bosworth; Raffi Freedman-Gurspan; Samuel Gordon; Allan Holt; Edward Lazarus; Susan Lowenberg; and Maureen Schulman. Fifty-five members of the Council are appointed by the President for 5 year terms.

UPDATE: On Jan. 17 the President added one more appointee to the Holocaust Memorial Council-- Benjamin Rhodes who has been Obama's Deputy National Security Advisor for Strategic Communications.

Religious Leaders Have Have Variety of Top Agenda Items For President Trump

In advance of Donald Trump's inauguration on Friday, religious leaders have a variety of suggestions for Trump's top agenda items. Here is a sampling:

Tony Perkins, president of the Family Research council, says:

To start, religious liberty in the military needs to be addressed. Over the past several years we have witnessed chaplains being disciplined for their faith, and religious speech being censored. President-elect Trump can direct that religious liberty in the military be clarified and strengthened, and that appropriate training is conducted to ensure the law is followed.

In addition, our foreign policy, contrary to the law, has not prioritized religious freedom like it should. President-elect Trump must direct that religious freedom be properly integrated into all foreign policy of the United States at every level....

[G]overnment nondiscrimination legislation is needed to protect supporters of marriage between one man and one woman. People of faith should not be punished by the government for living in accordance with their beliefs.

Rev. Robert Sirico, president of the Acton Institute says:

Abolish the Office of Faith-Based Initiatives.

Even though there is long-standing precedent for government at all levels to contract with various church-affiliated organizations, such as the Lutheran Samaritas or Catholic Charities USA, these organizations end up going to great lengths to separate their services from their religious mission. This alters the genius of faith-based charities, their effectiveness and their very mission.

This well-intentioned subsidy obfuscates the nature of religious charities by incentivizing them to draw a stark line between their faith and their works. What animates believers to care for the poor is precisely their religious belief — not to serve the interests of the state, politicians and their bureaucracies.

Franklin Graham, president of the Billy Graham Evangelistic Association and Samaritan’s Purse, says:

I think maybe God has allowed Donald Trump to win this election to protect this nation for the next few years by giving maybe an opportunity to have some good judges.

Elijah M. Brown, general secretary of North American Baptist Fellowship, says:

President-elect Trump should ... demonstrate his sincere commitment to the many individuals and faith communities around the world living at the edge of extinction by nominating in his first 100 days an ambassador-at-large for international religious freedom.

Monday, January 16, 2017

University Settles Suit By Christian Counseling Student

The Springfield News-Leader reports that last month Missouri State University agreed to pay former student Andrew Cash $25,000 to settle a lawsuit brought by him charging that he was suspended from the Masters program in Counseling because of his religious beliefs. (See prior posting.) Cash says he was not allowed to complete his internship at a Christian counseling institute because it refuses to counsel same-sex couples, a position which Cash embraces. Under the settlement, Cash cannot seek readmission to Missouri State University.

Prosperity Gospel Pastor, Bishop Eddie Long, Dies

As reported by CNN and AP, controversial Atlanta area mega-church pastor, Bishop Eddie Long, died Sunday morning of cancer at age 63. At its height, his New Birth Missionary Baptist Church where he preached a "prosperity gospel" had 25,000 members. CNN summarizes his career:

Long was a national figure and one of the most innovative and polarizing pastors in the contemporary church. He was also a paradox.

He was a preacher who led an infamous march against same-sex marriage and denounced homosexuality, but he also settled a lawsuit by four young men who said he pressured them into sexual relationships....

He was a man who gave away cars and paid the college tuition of needy people, but he also was investigated by Congress after a charity he created had provided him with a million-dollar home and a Bentley luxury car.

"When he spoke, black people all over the country listened to him," said Shayne Lee, a sociologist who studies the black Pentecostal church. "He was part of the repackaging of Christianity for post-civil rights African-Americans."

Egyptian Prosecutors Say Insufficient Evidence In Case Of Attack On Christian Woman

According to AP, in Egypt prosecutors have dropped a case against several members of a Muslim mob allegedly involved last May in stripping a Christian woman of her clothes and parading her naked through the streets in a village in Minya province. The mob was reacting to a rumor that the woman's son had an affair with a Muslim woman. Prosecutors cited a lack of evidence, but another case growing out of the same violence, which also targeted Christian homes, continues in court.

Sunday, January 15, 2017

Recent Prisoner Free Exercise Cases

In Aguilar v. Lemke, 2017 U.S. Dist. LEXIS 2526 (ND IL, Jan. 5, 2017), an Illinois federal district court allowed an inmate to move ahead with his claim that his placement in segregation in violation of his due process rights resulted in restrictions on his ability to practice his Roman Catholic religion.

In Garrett v. Stephens, (5th Cir., Jan 12, 2017), the 5th Circuit upheld dismissal of an inmate's claim that confiscation of his property forced him to modify his daily religious practices.

In Sareini v. Burnett, 2017 U.S. Dist. LEXIS 3083 (ED MI, Jan. 10, 2017), a Michigan federal district court held that the Supreme Court's 2015 decision in Holt v. Hobbs is not a basis for reopening a court's 2011 dismissal of an inmate's religious items and holiday claims.

In Santos v. Holland, 2017 U.S. Dist. LEXIS 3682 (ED CA, Jan. 10, 2016), a California federal magistrate judge, ruling on an inmate's habeas corpus petition, recommended concluding that a state court was reasonable when it held that an inmate's free exercise rights were not violated by using his religious necklace with the Eternal Warrior Shield as evidence of affiliation with the Mexican Mafia.

In Skandha v. Spencer, 2017 Mass. App. Unpub. LEXIS 45 (MA App., Jan. 12, 2017), a Massachusetts state appeals court rejected an inmate's claim that his religious rights were violated by the requirement that he sign a diet sheet in advance of receiving a vegan meal.

In Faulker v. Phillips, 2016 U.S. Dist. LEXIS 181805 (SD CA, Dec. 2, 2016), a California federal magistrate judge recommended that an inmate's complaint that he was denied a kosher diet be dismissed on various grounds, with one narrow exception.

In Blair v. Thompson, 2017 U.S. Dist. LEXIS 5164 (WD KY, Jan. 13, 2017), a Kentucky federal district court dismissed an inmate's claim of a conspiracy to interfere with the practice of his religion by stealing, moving, and destroying his religious materials.

In Venkataram v. Bureau of Prisons, 2017 U.S. Dist. LEXIS 5418 (SD FL, Jan. 12, 2017), a Florida federal magistrate judge recommended that a Hindu inmate be permitted to proceed with his claim seeking declaratory relief that his 1st Amendment and RLUIPA rights were infringed by the failure to provide him a vegetarian diet prepared and served in accordance with his religious beliefs.

In Gonzalez v. Rivera, 2017 U.S. Dist. LEXIS 4612 (ED AR, Jan. 12, 2017), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181873, Dec. 16, 2016) and permitted an inmate to proceed with his complaint that he was not given meatless meals on Good Friday and that Catholic Easter services were not available even though they were proved to Protestant prisoners.

In Stein v. Mohr, 2016 U.S. Dist. LEXIS 181896 (SD OH, Dec. 13, 2016), an Ohio federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 181898, Dec. 6, 2016) and dismissed an inmate's complaint that he was not placed on the list to attend the Asatru religious feast of Yule, that he was not allowed to make a copy of a religious poster, and that the chapel library had only 3 Asatru religious books and they were subsequently stolen.

Indiana RFRA Not Defense To Tax Evasion

In Tyms-Bey v. State of Indiana, (IN App., Jan. 13, 2017), an Indiana appeals court, in a 2-1 decision, held that a state RFRA defense cannot be raised in a tax evasion prosecution. According to the majority opinion:

as a matter of law ..., in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that [defendant] could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest.

Judge Najam dissenting said in part:

Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA.

Saturday, January 14, 2017

NJ Court Upholds Historic Preservation Funds To Churches In State Constitutional Challenge

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Super., Jan 9, 2017), a New Jersey trial court upheld a county's allowing churches to be among those receiving grants from the county's Historic Preservation Trust Fund. Even though Art. 1, Par. 3 of the New Jersey Constitution prohibits the use of tax funds to build or repair any church or place of worship, the court said that the constitutional provision "is not meant to be read literally" but must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations...." The Daily Record reports on the decision.

Presidential Proclamation Recognizing Religious Freedom Day

President Obama yesterday issued a Proclamation designating January 16, 2017 as Religious Freedom Day. The date is the 231st anniversary of the passage of the Virginia Statute for Establishing Religious Freedom in 1786. The President's Proclamation reads in part:

Religious freedom safeguards religion, allowing us to flourish as one of the most religious countries on Earth, but it also strengthens our Nation as a whole. Brave men and women of faith have challenged our conscience and brought us closer to our founding ideals, from the abolition of slavery to the expansion of civil rights and workers' rights. And throughout our history, faith communities have helped uphold these values by joining in efforts to help those in need -- rallying in the face of tragedy and providing care or shelter in times of disaster.