Religion Clause

Wednesday, March 28, 2018

DC Circuit Hears Oral Arguments In Bus Ad Case

On Monday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full arguments) in Archdiocese of Washington v. Washington Area Metropolitan Transit Authority. In the case, the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief." (see prior posting).

Puerto Rico Supreme Court Stays Seizure of Catholic Church Assets In Teacher Pension Dispute

AP reports that Puerto Rico's Supreme Court yesterday temporarily stayed a ruling entered earlier in the day by a trial court judge against the Catholic Archdiocese of San Juan. At issue is a lawsuit by Catholic school teachers seeking to preserve $4.7 million in pensions owed to them. In 2016, the Archdiocese canceled pensions for current and former teachers because payouts exceeded contributions. The pension plan, created in 1979, did not require contributions by the teachers. Nearly half of the 80 schools operating in 1979 have now closed. The lower court had ordered seizure of any money or property owned by the Church in Puerto Rico to satisfy the pension liabilities. [Thanks to Scott Mange for the lead.]

Pro-Life Supporters Model Protest After Parkland School Walkouts

The pro-life movement has announced plans to piggyback on the student anti-gun violence walkouts that took place in schools around the country after the Parkland, Florida shooting. Pro-life high school students are planning a similar 17-minute walkout from classes on April 11. As reported by Lifesite News, the idea originated with Rocklin, California high school student Brandon Gillespie after his history teacher was suspended for questioning the anti-gun violence walkout and commenting that the walkout would likely not have been tolerated if it was to protest abortion. Sponsors of the pro-life march have tied it to the Parkland demonstrations by saying it will "test if there’s a double standard from school administration when it comes to allowing students to protest against destroyers of life and the tools they use." Yesterday the Thomas More Law Center issued a press release stating that it will provide legal guidance to students planning the walkout, adding:

With the pro-life walk out, Gillespie seeks to answer the question of whether “Not One More” applies to all children, regardless of their age or birth status.

Tuesday, March 27, 2018

Britain's Court of Appeals Rules Against Gay Priest's Employment Discrimination Claim

In Pemberton v Inwood, (EWCA , March 22, 2018), the England and Wales Court of Appeal ruled against Jeremy Pemberton, a gay Church of England priest who was prevented from taking a position as a hospital chaplain when he married his same-sex partner. Pemberton sued claiming employment discrimination and harassment. Lady Justice Asplin's opinion held that the action taken against Pemberton falls within a statutory exception from the Equality Act's discrimination provisions for religious organizations that impose various requirements regarding marriage and sexual orientation. Rejecting Pemberton's harassment claim, Justice Asplin said in part:

If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.

The Guardian reports on the court's decision. (See prior related posting.)

Cult Leader Sentenced To 99 Years In Starvation Death of Young Boy

Dallas Morning News reports that a Texas jury last Friday sentenced 52-year old Aracely Meza-- the religious leader of a church known as Iglesia Internacional Jesus es el Rey-- to 99 years in prison and a $10,000 fine in the 2015 starvation death of a 2-year old boy. Meza had ordered food to be withheld from the boy in order to exorcise the demon of manipulation that she believed possessed him. The boy and his family lived on a commune run by Meza, who claims to be a prophet. When the boy died, his parents were afraid to report the death to police because they were undocumented aliens from Mexico. With Meza, they took the boy for burial back to Mexico, where the parents remain.

Vermont Legislators Join Fight Against Mormon Utopian Village Plans

The NewVistas Foundation is a non-profit organization promoting the building of model communities based on writings of Mormon prophet Joseph Smith. NewVistas wealthy founder David Hall is buying up land in Provo, Utah and near Joseph Smith's birthplace in Vermont to create two of these villages. As reported in 2016 by Bloomberg Businessweek :

Hall is a fourth-generation Mormon. “Joseph Smith was just the wildest guy out there,” he says. “Lots of things he did were stupid, but in my view, he was a sage or a seer and didn’t even understand what came to him.” As the story goes, the plat plan appeared to Smith while he was studying Enoch, an Old Testament prophet who designed a city so perfect it was whisked off to heaven. The text accompanying the blueprint, written out by Smith and his comrades, says each plat should house 15,000 to 20,000 people within one square mile (though the definition of a mile has changed slightly), and that the design should be replicated worldwide. Written in the style of 15th century English, it reads: “When this square is thus laid off and supplied, lay off another in the same way, and so fill up the world in these last days, and let every man live in the city, for this is the city of Zion.”

These plans have stirred opposition, and in Vermont (as reported this week by AP) a resolution opposing the planned village has been introduced in the Vermont House of Representatives. HR 20 (full text) introduced March 21 with 12 co-sponsors, says in part:

the NewVistas project would destroy the traditional and compacts settlement pattern in the four towns, convert large amounts of productive agricultural lands and forestland into development, undermine the historic character of these towns, degrade the area’s natural resources, and reduce game and wildlife populations.

Monday, March 26, 2018

Faith Healing Parents Convicted In Daughter's Death

AP reports that in Reading, Pennsylvania, Jonathan and Grace Foster were convicted of involuntary manslaughter and child endangerment in the death of their 2-year old daughter. The Fosters are members of Faith Tabernacle Congregation which teaches that doctors and pharmaceuticals should be avoided. Their daughter died of pneumonia after the couple failed to seek medical treatment for the girl whose cold symptoms turned severe.

Israeli Court Says Jews Have Right To Pray At Temple Mount Gates

Arutz Sheva and Jerusalem Post report that in Israel yesterday, a Jerusalem Magistrate's Court has ruled that police acted improperly in attempting to prevent three 14-year old Jewish girls from praying at the Bab al-Huttah gate to the Temple Mount in the Old City of Jerusalem. Police contended that the girls were attempting to create a provocation since they timed their prayers to coincide with the end of Muslim prayers on the Temple Mount. The girls had undertaken similar activity before and were issued restraining orders by the police. The court held that the girls have the same right as Muslims to pray at that location, saying in part:

[I]t is the right of every person to pray in the State of Israel on the streets of a city, provided this does not violate the rights of others.... The police representative's argument that throwing of objects would have resulted from the young women's presence is unacceptable to me, as I wouldn't have accepted the claim that a man with a wallet full of cash walking in a neighborhood where many pickpockets live violates public safety and invites offenses.

Sunday, March 25, 2018

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life. A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.

Recent Prisoner Free Exercise Cases

In Furr v. Kelley, 2018 U.S. Dist. LEXIS 43468 (ED AR, March 16, 2018), an Arkansas federal magistrate judge recommended dismissing claims by a Native American inmate that he was denied various ceremonial objects and a religious adviser.

In Burley v. Abdellatif, 2018 U.S. Dist. LEXIS 44187 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44390, Jan. 26, 2018) and dismissed a number of claims but allowed an inmate to move ahead with his claim that the prison physician violated his 1st Amendment protection against retaliation by refusing to treat him because he is Jewish.

In Maye v. Klee, 2018 U.S. Dist. LEXIS 44188 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44618, Jan.24, 2018) and granted a Nation of Islam inmate summary judgment on his complaint that the prison chaplain did not permit him to participate in Eid al-Fitr celebrations. He was allowed to move ahead with a free exercise claim against one other defendant. Supplemental briefing was ordered on the issue of damages.

In Le Bourgeois v. Wolf, 2018 U.S. Dist. LEXIS 44990 (ED WI, March 19, 2018), a Wisconsin federal district court dismissed an inmate's complaint that his religious book was seized and destroyed. He was allowed to move ahead with various other claims.

In Goff v. Todd, 2018 U.S. Dist. LEXIS 46294 (ED LA, March 21, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 47329, Feb. 27, 2018) and in a suit by a Muslim inmate ordered that defendants file further pleadings explaining the prison policy that prevents plaintiff from wearing kufi caps.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 46307 (WD NC, March 21, 2018), a North Carolina federal district court dismissed (unless an amended complaint is filed) a suit by an inmate claiming that he was discriminated against and insulted based on his Moorish-American religion, that his religious material was confiscated and his religion was classified as a security threat group.

In Booker v. Engelke, 2018 U.S. Dist. LEXIS 46918 (WD VA, March 22, 2018), a Virginia federal district court allowed a Nation of Islam inmate to proceed with his complaint that his free exercise rights are infringed by limits on his access to the common fare diet, the content of that diet, the requirement that he eat his meals very quickly, and his inability to observe Eid-ul-Adha.

In Cary v. Mox, 2018 U.S. Dist. LEXIS 47078 (ED MI, March 22, 2018), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 48417, Feb. 8, 2018) and denied a preliminary injunction sought by an inmate who is a member of the Native American Traditional Way. Plaintiff asked for a ban on prison authorities physically touching medicine bags and herbs as part of a rewrite of procedures for searching these items.

In Maciejka v. Williams, 2018 U.S. Dist. LEXIS 47474 (SD FL, March 21, 2018), a Florida federal magistrate judge recommended that a former inmate who is Catholic be allowed to proceed on a claim for nominal damages. Plaintiff alleged that while in prison he was unable to attend group worship, celebrate certain religious holidays, obtain spiritual advice, keep religious materials and publications, or obtain religious property such as a Rosary and Scapular.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 47691 (ED CA, March 21, 2018), a California federal magistrate judge recommended dismissing a Jewish inmate's claim that he was denied the facility chapel to practice obligatory prayers and holy day events.

Saturday, March 24, 2018

New White House Memorandum On Military Service By Transgender Persons

Yesterday the White House released a Memorandum from the President on Military Service By Transgender Individuals (full text). Implementing February 2018 recommendations and a related report (full text) from the Secretary of Defense, the memo replaces an earlier Presidential Memorandum and authorizes the military services to implement the Defense Department's recommendations. Those recommendations preclude most new enlistments by transgender individuals. They allow enlistment by transgender persons only if they have not been diagnosed with gender dysphoria, or if previously diagnosed with gender dysphoria they have been stable for 36 months in their biological sex. Those who require or have undergone gender transition are disqualified. The Hill reports on the new Memorandum.

All of this may l\have little immediate effect. Vanity Fair reports:

It is possible that the ban will never actually be put in place: while the Trump administration is framing the order as “a new policy developed through extensive study by senior uniformed and civilian leaders,” it is substantively the same as the previous Trump policy, which is currently facing multiple lawsuits on constitutional grounds. Four federal courts have issued injunctions in cases filed by civil rights groups, and may ultimately end up before the Supreme Court. The Pentagon said Friday that it will continue to abide by Obama-era policies welcoming transgender troops while those legal battles continue.

Friday, March 23, 2018

Alabama Legislature Approves Ballot Issue On Ten Commandments

The Alabama legislature yesterday approved S 181 (full text), submitting a proposed state constitutional amendment to the voters. The operative provisions of the proposed amendment read:

Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment.

The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.

The inclusion of the ban on using public funds to defend the constitutionality of the amendment is apparently a response to criticism from opponents that the amendment will merely invite costly lawsuits. (See AP report on the passage of the bill.) Also, apparently the amendment is not intended to repeal the somewhat overlapping provisions of the existing Sections 3 , 3.01 (Amendment 622) and 263 of the state constitution. [Thanks to Tom Rutledge for the lead.]

4 Nations Sign Statement On Combating Online Hate Speech

On Tuesday, the Justice Ministers of Greece, Malta, Italy and Israel at the 6th Global Forum for Combating Antisemitism, held in Jerusalem, signed a Joint Statement on Countering Online Hate Speech and Incitement to Violence and Terrorism (full text [scroll down in article]). Among other things, the statement urged Internet companies to adopt a clear and transparent industry standard for identifying hate speech. It went on to encourage Internet companies to take action against hate speech publications and to remove them from their online platforms.

Rabbi Defends Against Zoning Charges Citing Religious Obligation of Hospitality

Savannah Morning News yesterday reported on litigation pending in a Georgia state trial court charging violation of local zoning laws. Last December, City of Savannah attorneys filed suit against Rabbi Arnold Belzer and his wife for renting out their home as a short-term vacation rental. Apparently the rental was advertised through Air BNB. Rabbi Belzer argues that fines or an injunction would impose a substantial burden on their free exercise rights. Their pleadings assert:

As devout people of faith, Rabbi and Mrs. (Arlene) Belzer have a sincerely held religious belief in the Jewish practice of hospitality. They consider the practice of hospitality to be a religious obligation found in Jewish scripture and tradition.

7th Circuit: School's Christmas Pageant Does Not Violate Establishment Clause

In Freedom From Religion Foundation v. Concord Community Schools, (7th Cir., March 21, 2018), the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas Spectacular put on by an Elkhart, Indiana high school does not violate the Establishment Clause. The court describes the revised pageant's challenged second half:

the show spends about four and a half minutes each explaining and performing a song to represent Hanukkah and another for Kwanzaa. Images are projected onto large screens to accompany both songs. For the remaining 20 minutes, students perform numerous Christmas songs that are more religious in nature (e.g., “Jesus, Jesus, Rest Your Head,” “O Holy Night”). During one of the songs, a nativity scene appears on stage for two minutes. The manger uses mannequins, not student actors. There are no New Testament readings.

The court explained its conclusion as follows, in part:

It is worth emphasizing that no one factor alone—the secular first half, the nativity’s lack of prominence, the inclusion of other holidays—leads us to conclude that the 2015 Spectacular passes muster under the endorsement test. Overall, the 2015 performance in its current form would not cause a reasonable observer to believe that Concord is signing off on a particular religious message....

Although the matter is not open‐and‐shut, we see no reason to reverse the district court’s conclusion on summary judgment that the 2015 show did not pressure individuals to support any religious beliefs.

Education Week reports on the decision.

Abortion Protester Cleared of Disorderly Conduct Charge

A trial court judge in Huntsville, Alabama last week found 66-year old Alison Harris not guilty of disorderly conduct. (Docket sheet). According to a press release from the Thomas More Society:

Harris, a frequent sidewalk counselor at the Alabama Women’s Center for Reproductive Alternatives, was arrested on May 26, 2017, on the public walkway in front of the abortion clinic as she prayed and tried to persuade parents to choose life for their preborn children. The arresting officer had obtained a warrant at the request of a clinic employee for Harris’ use of a megaphone fourteen days earlier. The megaphone had been repeatedly tested by city police to ensure that it was below the decibel limit allowed by the Huntsville City ordinance.

Megaphones are used by sidewalk counselors at the Huntsville abortion clinic, where, alongside a four-lane highway, abortion escorts use cow bells, car horns, and loud-speakers to drown out the pro-life messages.

Thursday, March 22, 2018

Omnibus Spending Bill Does Not Contain Johnson Amendment Repeal

Several non-profit organizations have noted that the 2,232-page version of the omnibus Consolidated Appropriations Act, 2018 (full text) made public yesterday does not contain a repeal of the Johnson Amendment. A press release from the National Council of Nonprofits says in part:

Public trust is essential for charitable nonprofits, houses of worship, and foundations to do their work – and keeping the Johnson Amendment in place allows the public to continue trusting that our organizations can focus on our missions without being torn apart by divisive partisan politics.

A Baptist Joint Committee press release expresses similar sentiments, saying in part:

Those who depend on houses of worship and community nonprofits can breathe a sigh of relief, as concerted efforts to weaken the longstanding law that keeps the 501(c)(3) sector free from partisan campaigning were rebuked yet again.

Some hoped they could slip a bad policy change into must-pass legislation, but advocates for keeping nonprofits nonpartisan spoke up and prevailed.

Navy Again Rejects Application To Become Secular Humanist Chaplain

Washington Examiner yesterday reported that for a second time the U.S. Navy has rejected the application of Jason Heap to become the Navy's first Secular Humanist chaplain. His application was first rejected in 2014 (see prior related posting), but more recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval. Senator Richard Wicker, chairman of the Senate Armed Services Committee, applauded the Navy's rejection of Heap's application, saying:

The appointment of an atheist to an undeniably religious position is fundamentally incompatible with atheism’s secularism. This decision preserves the distinct religious role that our chaplains carry out.

Wednesday, March 21, 2018

Scottish Court Convicts For Anti-Semitic YouTube Video

The Jewish Chronicle reports that a Sheriff's Court in Airdrie, Scotland yesterday found 30-year old Mark Meechan guilty of a hate crime for a YouTube posting that went viral. The video featured a dog owned by Meechan's girlfriend. Meechan had trained the dog to give a Nazi salute when Meechan said "sieg heil" or "gas the Jews." Meechan, who has apologized, says the video was his attempt to annoy his girl friend:

My girlfriend is always ranting and raving about how cute and adorable her wee dog is, so I thought I would turn him into the least cute thing I could think of, which is a Nazi.

The Sheriff's Court judge however ruled:

The accused knew that the material was offensive and knew why it was offensive. He would have known it was grossly offensive to many Jewish people.

Sentencing in the case is scheduled for April 23.