Court Rejects Use Permit For Hindu Temple Because of Deed Restrictions

Yesterday's Arizona Republic reports that a recent Maricopa County Superior Court decision invalidated a use permit that the Chandler City (AZ) Planning and Zoning Commission, as well as City Council, had approved for construction of a Hindu Temple. Neighbors challenging the proposed construction relied on "residential only" deed restrictions on the land owned by the non-profit Hindu group that wished to build a brightly colored worship center.

Minnesota Supreme Court Challenger Focuses On Religion As Basis of Government

The Minnesota Independent last week reported on the campaign of Tim Tingelstad for a seat on the Minnesota Supreme Court. Challenging incumbent Justice Paul Anderson, Tingelstad's website is filled with appeals to restore religion as the foundation of government. For example, the section of his website captioned Church & State says in part: "Through misinterpretation, the Constitution has been used as an instrument to remove God and his Word from our public lives.... Today's concept of 'separation of church and state' does not come from the Constitution, nor does it come from a historically accurate review of American history." [Thanks to Scott Mange for the lead.]

Christians In Iraq Flee Violence In Mosul

CNN reported yesterday that in the Iraqi city of Mosul, 900 Christian families have fled after a series of threats and 13 killings by Muslim extremists who have warned Christians to convert to Islam or face possible death. The violence follows demonstrations two weeks ago by Christians seeking greater representation on provincial councils in elections scheduled for January. In response to the violence, the Iraqi defense minister visited Mosul, police have set up security checkpoints, more troops have been deployed to the city and security patrols have been increased.

Recent Prisoner Free Exercise Cases

In Mells v. Civigenics, Inc., (5th Cir., Oct. 3, 2008), the U.S. 5th Circuit Court of Appeals dismissed as frivolous an inmate's free exercise claim, agreeing with the district court that plaintiff had failed to exhaust his administrative remedies.

In Mitchell v. Department of Corrections, 2008 U.S. Dist. LEXIS 77624 (ED WA, Oct. 3, 2008), a Washington federal district court rejected claims by plaintiff, a Nation of Islam member, that his free exercise, RLUIPA, Establishment Clause and equal protection rights were violated by prison policies. His challenges related to the unavailability of specific NOI religious services and instruction, the ban on his wearing a colored kufi, a limitation on prayer oils, and rules relating to attendance at cultural events.

In Sullivan v. Ozmint, 2008 U.S. Dist. LEXIS 77587 (D SC, Oct. 2, 2008), a South Carolina federal district court, adopting a magistrate's recommendations, rejected complaints that Muslim inmates were allowed to pray only in common areas, and not in closed areas of the prison such as the barber shop.

In Shaw v. Norman, 2008 U.S. Dist. LEXIS 77696 (ED TX, Oct. 1, 2008), a Texas federal magistrate judge rejected dismissal of an inmate's 1st Amendment and RLUIPA claims, growing out of confiscation of his Koran, prayer rug and beads. Defendants claimed plaintiff did not have property papers for the prayer rug, the Koran had been altered with tape, and that plaintiff was improperly using the beads by wearing them around his neck.

In Johnson v. Ohio Department of Rehabilitation & Corrections, 2008 U.S. Dist. LEXIS 79483 (SD OH, Oct. 9, 2008), an Ohio federal district court permitted a Rastafarian prisoner to move ahead with his claim that subjecting him to prison grooming policies violated his 1st Amendment rights. However the court refused plaintiff's request for a temporary restraining order. (See prior related posting.)

In Muhammad v. Brumfield, 2008 U.S. Dist. LEXIS 79559 (ED CA, Oct. 6, 2008), a California federal magistrate judge ordered dismissal of a suit brought by an inmate who wished to participate in services with the Lost Found Nation of Islam. The court said plaintiff had not demonstrated any substantial burden on his religious practice.

In Wakefield v. Tilton, 2008 U.S. Dist. LEXIS 78881 (ED CA, Oct. 2, 2008), a California federal magistrate judge recommended that an inmate be permitted to proceed against one defendant with his claim that denial of a daily shower infringed his free exercise rights. The magistrate judge recommended dismissal of various other claims.

In Palermo v. White, 2008 U.S. Dist. LEXIS 80047 (D NH, Sept. 5, 2008), a New Hampshire federal magistrate judge allowed plaintiff a Wiccan, to proceed with his free exercise, RLUIPA and equal protection claims. Plaintiff alleged that as a pre-trial detainee he was denied a vegetarian diet, religious texts and religious items.

Appeal Filed In School Graduation Speech Case

An appeal to the 10th Circuit Court of Appeals has been filed in Corder v. Lewis Palmer School District No. 38. Yesterday's Colorado Springs (CO) Gazette reports on the filing in the case in which a high school valedictorian was required to apologize for including unauthorized religious material in her 30-second portion of a joint graduation speech. In July, a Colorado federal district court upheld officials' actions, finding that schools can reasonably regulate the content of school-sponsored speech. (See prior posting.) A release by Liberty Counsel, which is representing former student Erica Corder in the appeal, says that the school had no authority over Corder once she was no longer a student.

EEOC Sues Company On Behalf of Driver Fired For Not Working Sundays

Yesterday's Charlottesville (VA) Daily Progress reported that the the U.S. Equal Employment Opportunity Commission late last month filed a Title VII religious discrimination lawsuit against Cardinal Health Inc. The suit charges that the company failed to accommodate the religious needs of a driver who for religious reasons refused to work on Sundays. Employee Howard Thompson was fired from his Charlottesville-based job after three years of working for Cardinal, when he refused to work on rotating Sundays. A spokesman for Cardinal Health says the company is confident that it has complied with the law.

Developments In Two Army Religious Discrimination Matters

There have been developments in two arenas involving alleged religious discrimination in the U.S. Army. According to the AP, Attorneys for Pfc. Jeremy Hall filed a motion Friday in federal court in Kansas to dismiss Hall's suit against the military. The suit charged Hall was prevented from holding a meeting of atheist soldiers when he was deployed in Iraq. Hall plans to leave the Army next year, and this avoids litigation over Hall's standing to continue the suit. However a lawsuit filed in October by the Military Religious Freedom Foundation on behalf of Spc. Dustin Chalker raises related claims that soldiers were forced to attend events that featured Christian prayers. [Thanks to Scott Mange for the lead.]

Meanwhile, in an unrelated case, the AP reports that an Army trainee who physically attacked a Jewish soldier who was also in basic training at Ft. Benning will not face criminal charges. Instead he will face non-judicial punishment. The victim, Pvt. Michael Handman, and his family think the beating was motivated by anti-Semitism, since it came only a few days after Handman complained about anti-Semitic harassment by two drill sergeants. However Army investigators say the beating was not motivated by religious bigotry. (See prior related posting.)

Federal Court Rejects 1st Amendment Challenge To CA Gay Marriage Holding

In Wooten v. California, 2008 U.S. Dist. LEXIS 79078 (ED CA, Oct. 3, 2008), a California federal district court rejected claims by a pro se plaintiff that the California Supreme Court violated the federal Constitution's Free Exercise and Establishment clauses when it legalized same-sex marriage in the state. (See prior posting.) The court concluded that the state court’s ruling did not interfere with plaintiff's right to preach whatever he wishes about same –sex marriage. Nor did the decision elevate one religious view over another.

Attorney Cited For Skipping Court On Yom Kippur; Contempt Charges Then Dropped

CBS2Chicago reports that yesterday Jewish attorney Moria Bernstein faced a contempt citation issued by County Judge Veronica Mathein. Bernsten told the judge she could not appear at an emergency hearing on a divorce property settlement scheduled Thursday because Bernstein was observing Yom Kippur. After a contentious arguments on whether the Thursday hearing was in fact an emergency, Judge Mathein decided to vacate the contempt citation and arrest order that she had previously issued.

Class Has Preliminary Success In Suit On Religious Worker Visa Procedures

Ruiz-Diaz v. United States, 2008 U.S. Dist. LEXIS 79217 (WD WA, Aug. 21, 2008), is a class action brought on behalf of certain foreigners in the United States who are seeking Religious Worker visas. It challenges a government regulation (8 CFR 245.2) that precludes those individuals from filing for Adjustment of Status before their Religious Worker application is adjudicated. The complaint alleges that this discriminates against certain classes of immigrants based on their religion, violates their free exercise, equal protection and due process rights and their rights under the Religious Freedom Restoration Act. Concluding that plaintiffs have "a fair chance of success on the merits", the court ordered that they not be treated as unlawfully present in the country, or unlawfully employed, while the litigation is pending, thereby preventing their detention or deportation for being out of status.

6th Circuit Holds Administrative Finality Needed Before Suing Under RLUIPA

In Grace Community Church v. Lenox Township, (6th Cir., Oct. 10, 2008), the U.S. 6th Circuit Court of Appeals held that before a property owner may file suit under RLUIPA to challenge a zoning decision, the property owner must have obtained a final, definitive position from zoning authorities. Here the court dismissed a challenge to a special use permit revocation by the Lenox Township, Michigan Planning Commission, finding that Grace Community Church filed suit before it attempted to explain or rebut evidence presented against it and without appealing the revocation to the Zoning Board of Appeals. The court also concluded that the same ripeness objections applied to the Church's equal protection claim." (See prior related posting.) [Thanks to Brian D. Wassom for the lead.]

Court Upholds Divorce Decree Limit On Promoting Different Faith To Children

When Joel and Lisa Rownak divorced in 2005, Joel was awarded custody of the couple's minor children. The divorce decree contained a provision, originally proposed by Joel and agreed to by Lisa, that "the minor children be raised in the Protestant faith." The decree went on to enjoin both parents "from promoting another religious belief system/faith to the minor children unless both parties should consent." In Rownak v. Rownak, (AR Ct. App., Oct. 8, 2008), an Arkansas appellate court upheld a contempt finding against Joel for violating this provision by promoting the Latter Day Saints faith to his children.

In upholding the trial court's finding, the court of appeals said that the divorce decree "has for its basis a valid contract between the parties and does not violate appellant’s constitutional rights." Apparently the trial court went on to change custody of the children from Joel to Lisa because of changed circumstances, which included Joel's changing his church membership from southern Baptist to LDS. However, for reasons that are not explained, Joel did not appeal this portion of the trial court's decree. As part of its findings in the contempt proceeding, the trial court concluded that the LDS church is not a Protestant faith. Yesterday's Springdale (AR) Morning News reported on the decision. [Thanks to Spencer Macdonald for the lead.]

Suit Challenges Freezing of Assets of Muslim Charity

Yesterday, the ACLU of Ohio announced it has filed suit in an Ohio federal district court on behalf of a Muslim charity, KindHearts for Charitable Humanitarian Development, Inc. The charity was founded in 2002 (after the government shut down a number of Muslim charities) with the purpose of providing humanitarian aid in the U.S. and abroad in compliance with U.S. law. However, in February 2006 the Treasury Department's Office of Foreign Assets Control summarily froze the charity's assets "pending investigation" of whether it should be classified as a "Specially Designated Global Terrorist" organization. The freeze is still in effect.

The lawsuit (full text of complaint) challenges action taken by OFAC, arguing that the authority given by the USA PATRIOT Act (50 USC 1701(a)(1)(B)) to freeze assets pending investigation violates the First, Fourth and Fifth Amendments. The complaint alleges that the statute is unconstitutionally vague, and that it "sets forth no substantive criteria for when such a freeze pending investigation is permitted, requires no notice or opportunity to respond, and sets no time limit on the freeze." (See prior related posting.)

Two Decsions In France On Rights of Muslim Women To Wear Religious Garb

USA Today reported yesterday on two decisions in France balancing French secularism with the right of Muslim women to wear religious garb. The French anti-discrimination agency, HALDE, ruled on Sept. 15 that women wearing the burqa and niqab-- full body and face covering-- could be excluded from state-sponsored French language classes for immigrants. HALDE called the burqa a symbol of "female submission that goes beyond its religious meaning." The head of HALDE said that language teachers need to see their students' faces when offering phonetic instruction. Meanwhile, on Wednesday, an appellate court in the city of Nancy affirmed a decision fining the owner of a bed and breakfast for refusing a room to two women wearing Muslim headscarves.

Cert Denied In Parents' Complaints About School Books

Last Monday, the U.S. Supreme Court denied certiorari in Parker v. Hurley (No. 07-1368). (Order List.) In the case, the 1st Circuit had rejected free exercise and parental privacy challenges by two sets of parents who complained that they were not given an opportunity to exempt their elementary school children from exposure to books that offended their religious beliefs. The books depicted families headed by same-sex couples or dealt with love between members of the same sex. (See prior posting.) AP reported yesterday on the cert denial. Numerous other denials of cert were also ordered Monday. (See prior posting.)

Major Law Firm Sued for Religious Discrimination In Firing of Associate

American Lawyer reported Monday on a religious discrimination lawsuit filed in New York state court against the 1000-lawyer Dechert law firm. Former associate Marc Lubin says that one of the reasons he was fired was the fact that he was an Orthodox Jew. The partner who fired Lubin complained that he "was different", which Lubin understood to mean that his religious practices required him to eat kosher food and precluded his attendance at some events, such as the firm's Christmas party.

9th Circuit Rejects RFRA Challenge To Hydroelectric Project By Snoqualmie Tribe

In Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, (9th Cir., Oct. 7, 2008), the U.S. 9th Circuit Court of Appeals upheld FERC's granting of a 40-year license renewal to Puget Sound Energy, Inc. to operate the Snoqualmie Falls Hydroelectric Project. The Falls are a sacred site for religious practices for the Snoqualmie Tribe. Plaintiffs alleged that the project deprived the Tribe of access to the Falls, eliminated the mist necessary for the Tribe’s religious experiences, and changed the sacred water cycle. The court concluded that FERC's action did not violate the Religious Freedom Restoration Act. Applying the test from its recent Navajo Nation decision, the court held that no substantial burden was placed on the Tribe's free exercise of religion. Tribe members will not lose a government benefit or face sanctions for practicing their religion. FERC's application of a different, but more generous, definition was harmless error. The court also rejected the Tribe's challenge under the National Historic Preservation Act, and PSE's cross-petition challenging water flow requirements imposed by FERC. [Thanks to Robert H. Thomas for the lead.]

ACLU Brings Another Suit Against Ohio Judge For Religious Courtroom Poster

The ACLU of Ohio yesterday announced the filing a lawsuit against Richland County Common Pleas Court Judge James DeWeese, challenging a poster hung in his court room that displays "Humanist Principles" next to the Ten Commandments. (Photo of poster.) The complaint (full text), filed in federal district court in the Northern District of Ohio, alleges that the poster violates the Establishment Clause of the U.S. Constitution, as well as Art. I, Sec. 7 of the Ohio Constitution. In 2002, the ACLU obtained an injunction against a different 10 Commandments display in DeWeese's courtroom. In August, an Ohio federal court held that the current display is sufficiently different from the one enjoined in 2002 that DeWeese was not in contempt of the prior injunction. (See prior posting.) That holding apparently led to this new lawsuit.

White House Council Report Supports More Aid For Faith-Based Urban Schools

The White House Domestic Policy Council last week issued a 176-page report titled Preserving a Critical National Asset: America's Disadvantaged Students and the Crisis in Faith-based Urban Schools. The Introduction summarizes the report's recommendations:

[B]etween the 1999–2000 and 2005–06 school years, the K–12 faith-based education sector lost nearly 1,200 schools and nearly 425,000 students. This is a cause for national concern.... [I]f we are to succeed in protecting these valuable education options, more must be done. A sustained collaborative effort by educators, elected officials, philanthropists, neighborhood leaders, and many others will be required. America’s faith-based urban schools—so prized by so many families—are well worth this effort. Their preservation will greatly benefit countless disadvantaged students, numerous underserved communities, and as a result, our Nation at large.

In its section on public policy, the report supports vouchers, "backpack funding" that would allow students to take public dollars to the school of their choice, tax credits, faith-based charter schools and additional support services. Much of the report is a transcript of the White House Summit on Inner-City Children and Urban Schools held last April. (See prior posting.)

Yesterday, Americans United issued a release taking issue with the report, saying: "Government officials should focus on improving public schools, not subsidizing religious education."

Challenge To Green Bay Creche Dismissed On Standing Grounds

In Freedom from Religion Foundation, Inc. v. City of Green Bay, (ED WI, Oct. 7, 2008), a Wisconsin federal district court dismissed an Establishment Clause challenge to a nativity scene displayed last year on the roof of the entrance to Green Bay's City Hall. Plaintiffs sought a declaratory judgment, an injunction and nominal damages. Without reaching the merits, the court concluded that plaintiffs lacked standing because "none of the relief they seek would redress the injuries they claim." City Council had already enacted a moratorium on all displays, until a policy is worked out in the future. Also the city took down the display at issue on December 26, just hours before this lawsuit was filed. The claim for nominal damages was not sufficient by itself to create standing. The AP reported on the decision. (See prior related posting.)