Recent Prisoner Free Exercise Cases

In Pinkston-El-Bey v. Illinois, 2009 U.S. Dist. LEXIS 6724 (SD IL, Jan. 30, 2009), an Illinois federal district court dismissed at the screening stage claims by an inmate who is a member of the Washitaw Nation of Muurs. Plaintiff sued the governor of Illinois and the warden of virtually every penal institution in Illinois, alleging that state prisons have not adequately accommodated religious beliefs of Washitaw Ismaili Moslems.

In Goodvine v. Swiekatowski, 2009 U.S. Dist. LEXIS 6946 (WD WI, Jan. 26, 2009), a Wisconsin federal district judge permitted a Sunni Muslim prisoner to proceed with RLUIPA and 1st and 14th Amendment claims relating to restrictions on his religious literature, refusing him a copy of the Qu'ran, denying him a halal diet, refusing to adjust his meal schedules to accommodate fasts and refusing to assist him in his religious research.

In Washington v. Brown, 2009 U.S. Dist. LEXIS 6846 (ED CA, Jan. 21, 2009), a California federal magistrate judge denied defendants' motion for summary judgment and permitted plaintiff to proceed with claims that various prison officials denied him participation in the Ramadan fast.

In Robinson v. Jacquez, 2009 U.S. Dist. LEXIS 7560 (ND CA, Jan. 23, 2009), a California federal district court held that an inmate's allegations, liberally construed, state a 1st Amendment claim that that he was not provided kosher meals or permitted to attend Jewish religious services.

In Shatner v. Page, 2009 U.S. Dist. LEXIS 8324 (SD IL, Feb. 4, 2009), an Illinois federal district judge awarded a prisoner, who was a member of both the Church of Light and the Rosicrucian faith, damages totally $1770 for impropoer deprivation of his Sacred Tarot, Tarot cards, religious books and his religious medallion (as well as for imprper reading of his legal mail). The court found violations of plaintiff's free exercise rights, or RLUIPA and of the Illinois Religious Freedom Restoration Act.

New York City Considering Converting Some Catholic Schools To Charter Schools

New York City public schools are overcrowded. In Brooklyn, some Catholic schools threaten to close for lack of enrollment. WABC today reports that New York's Mayor Michael Bloomberg and Bishop Nicholas Dimarzio of the Brooklyn diocese are considering a plan to select four Catholic schools in Brooklyn and Queens and convert them to publicly funded charter schools. Religion would be eliminated from the curriculum for the schools that are converted. In order for the plan to be carried out, New York state will need to change its law that now bans the conversion of religious schools to charter schools. Newsday reports that the city will also consider similar conversion arrangements for other private and non-Catholic religiously operated schools in the city.

Student Christian Groups Lose Challenge To University Non-Discrimination Rules

In Every Nation Campus Ministries v. Achtenberg, (SD CA, Feb. 6, 2008), a California federal district court upheld the application of the California State University’s non-discrimination policy to four Christian groups at two universities. At San Diego State University and California State University Long Beach, officials refused official recognition to the four student groups because they refused to admit non-Christians as members. They also denied membership to "individuals who believe they are innately homosexual, or advocate the viewpoint that homosexuality is a natural part of God's created order." Relying on the 9th Circuit’s 2008 decision in Truth v. Kent School District (see prior posting), the court concluded that the schools may apply their policy against discrimination on the basis of race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability to these student groups. It concluded:

the CSU student organization program is a limited public forum to which the state may restrict access as long as the restrictions are reasonable and viewpoint-neutral in light of the purpose served by the forum, which they are. The Court further finds the First Amendment burdens imposed by the policy are viewpoint-neutral and uniformly applied to all clubs irrespective of their particular viewpoints. Accordingly, Plaintiffs' free association, free speech, and free exercise rights are not impermissibly infringed by the policy, nor is there any evidence that Plaintiffs have been treated inequitably in their exclusion from the forum due to their discriminatory membership criteria.

In the course of its decision, the court said that it was leaving open the question of whether the restrictions imposed by these groups amount to discrimination on the basis of sexual orientation, since some homosexuals could become members under the groups’ criteria. Today's San Diego Union Tribune, reporting on the decision, says an appeal in the case is likely.

Breakaway Church Keeps Property In Largely Evidentiary Ruling

In Hudson Presbyterian Church v. Eastminster Presbytery, (OH App., Feb. 4, 2009), an Ohio appellate court upheld a state trial court’s decision that a break-away Presbyterian congregation retained title to its property. The Presbyterian Church USA claimed that under the PCUSA constitution (Book of Order, Sec. G-8.0201), congregational property is held in trust for the parent church body. Rejecting a claim that the dispute was ecclesiastical in nature, and thus outside of the court’s jurisdiction, the court held that defendant had failed to prove that an express trust over the congregation’s property had been created. It found that no admissible evidence of the Presbyterian Church USA's constitution had been introduced, and that defendant had not preserved for appeal the issue of whether a charitable trust had been created. The Layman Online discusses the opinion further.

Federal Statute On Tolling Of Limitations For Military Raised In Clergy Abuse Case

In 2002, the California legislature created a one-year window in which clergy sexual abuse claims could be asserted, even though the statute of limitations had previously run on them. (See prior posting.) LA City Beat this week reports on a case in which a plaintiff, who was abused as a 16-year old Catholic high schooler, has brought suit asserting that he may still file because the federal Servicepersons’ Civil Relief Act tolls the expiration of the one-year window. Plaintiff enlisted in the Air Force in 1993 at age 22, and has since been serving on active duty, including in Iraq. The Act provides that the time a person is serving on active duty in the military may not be included in computing any limitation period for filing any civil action. The Los Angeles archdiocese is claiming that the Civil Relief Act should not be read to apply to a person, like plaintiff, who volunteered for military service instead of being drafted, or called up as a reservist or member of the National Guard. [Thanks to Pontifications for the lead.]

Amendment To Stimulus Bill Defeated; Ban on Constrution Aid for Religious Use Remains

As previously reported, both the House and Senate versions of the economic stimulus bill contain a provision authorizing grants to state higher education agencies for "Higher Education Facilities." However the bill imposes limitations on sub-grants to colleges and universities for renovation and modernization of buildings. No grant may be used for "modernization, renovation, or repair of facilities— (i) used for sectarian instruction, religious worship, or a school or department of divinity; or (ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission..."

As reported by CNS News yesterday, a number of conservative Christian groups have attacked this provision as discriminatory, arguing that the language is so broad that it could prevent a state university from receiving renovation funds for a building if it permitted a group to hold a worship service in the building.

During debate on the stimulus bill yesterday, Sen. Jim DeMint proposed an amendment to eliminate this restriction on grants. (S. Amend. 189). The proposed amendment was defeated by a vote of 43 yes, 54 no, 2 not voting. After the vote, DeMint issued a release captioned "Democrats Vote to Discriminate Against Students of Faith." Blaming the ACLU, DeMint said that the provision remaining in the bill will "in effect bar use of campus buildings for groups like the Fellowship of Christian Athletes, Campus Crusade for Christ, Catholic Student Ministries, Hillel, and other religious organizations." This appears to be something of an overstatement. The bill would preclude grants to renovate buildings used primarily by such groups, but not for other campus buildings. The ACLU says there is nothing novel about this restriction. (Fox News.)

UN Reviews Saudi Arabia Human Rights Record Today

The United Nations Human Rights Council implements a Universal Periodic Review process that reviews the human rights record of each of the UN's 192 members once every four years. Today in Geneva, the Council will focus on the human rights record of Saudi Arabia. AFP reports that among the Council's numerous concerns are strict Islamic practices in Saudi Arabia that require a male guardian's permission for women to travel, work or marry. Critics also say that the country's sharia-based legal system has too few precedents and places too much discretion in the hands of religiously trained judges. Other human rights concerns have also been raised. Human Rights Watch reports that the Council will consider three separate reports: one from the Saudis, one from UN observers and one from non-governmental organizations. Saudi's Human Rights Commission will say that progress has been made, and will ask for patience as it deals with "inherited customs and traditions."

Georgia Good News Club Lawsuit Settled

Liberty Counsel announced yesterday that a Georgia federal district court has approved a settlement in a lawsuit filed last month against the Cobb County School District. The suit, filed on behalf of Child Evangelism Fellowship's Good News Clubs, alleged that the school district charged higher fees for CEF to use school facilities after school than is charged to secular groups. (See prior posting.) The court-approved consent decree provides for access to facilities in the future for CEF on the same fee basis as is granted to similar secular student organizations. It will, in addition, permit CEF to use facilities immediately after school, rather than only later in the afternoon. The settlement also provides that the school district will repay CEF the excessive fees it paid, and will pay attorney's fees and costs.

Britain's National Health Service Issues Guide On Religion In Health Care

A Press Association report yesterday focuses on guidelines issued last month by Britain's National Health Service titled Religion or Belief: A Practical Guide for the NHS. While the new publication focuses on many aspects of religion in the workplace and in providing health care services, a nurse who was temporarily suspended for offering to pray for a patient focuses concern on a section of the guidelines that bars proselytizing. That section says in part:

Members of some religions, including Mormons, Jehovah’s Witnesses, evangelical Christians and Muslims, are expected to preach and to try to convert other people. In a workplace environment this can cause many problems, as non-religious people and those from other religions or beliefs could feel harassed and intimidated by this behaviour.

Commenting on the issue, Dr Peter Saunders, general secretary of the Christian Medical Fellowship, said: "It is quite ironic that people seem to be seeing Christian belief as something unhelpful."

High School Sued Over Refusal To Recognize Student Bible Club

Yesterday a high school student in Lindenhurst, New York, filed a federal lawsuit against his high school challenging its refusal to give official recognition to a student Bible Club. The school claimed that recognition would violate the Establishment Clause. The complaint (full text) in A.Q. v. Board of Education of Lindenhurst Union Free School District, (ED NY, filed 2/5/2009), alleges that the school's insistence on treating the Bible Club as an outside community group violates the federal Equal Access Act, as well as students' speech, religion, equal protection and due process rights. Alliance Defense Fund yesterday issued a release announcing the filing of the lawsuit.

Property Adjudication In Lubavitch Feud is Upheld, But Injunction Reversed

Earlier this week, a New York appellate court handed down another decision in the long running legal battle between two factions of the Chabad Lubavitch movement. (See prior related posting.) In Merkos L'Inyonei Chinuch, Inc. v Sharf, (NY App. Div., Feb. 3, 2009), the appellate court upheld the trial court's decision that Congregation Lubavitch, Inc. (the Messianist faction of Chabad) had no ownership interest in two adjoining properties making up the headquarters and central synagogue of the Lubavitch movement. The court held that

the existence of a divisive doctrinal dispute within the Lubavitch community does not render this action nonjusticiable, even if the facts underlying the action arise from that dispute and ... the commencement of the action was motivated by that dispute. Property disputes between rival religious factions may be resolved by courts, despite the underlying doctrinal controversy, when it is possible to do so on the basis of neutral principles of law....

However the court did reverse the award of a permanent injunction against CLI, finding that plaintiffs failed to show a threatened or probable violation of their property rights. There was no evidence linking CLI to vandalism against a plaque on the building. [Thanks to Y.Y. Landa for the lead.]

Obama Sets Up Revamped Faith-Based Office; Delays Decisions On Religion-Based Hiring By Grantees

President Barack Obama today issued an Executive Order (full text) setting up the White House Office of Faith-Based and Neighborhood Partnerships as the successor to the Bush administration's Office of Faith Based and Community Initiatives. Several paragraphs were added to the section of the Bush Executive Order expanding the functions of the Office. Among the additions are "ensur[ing] that services paid for with Federal Government funds are provided in a manner consistent with fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and prohibiting laws respecting an establishment of religion."

The Executive Order creates a new President's Advisory Council on Faith-Based and Neighborhood Partnerships made up of not more than 25 members. In a separate announcement, the President today named the first 15 members. They are a diverse group, including some individuals from secular social service agencies, as well as religious ones. A number of Protestant clergy, an academic (Melissa Rogers of Wake Forest University), and the president of Catholic Charities USA are among the Council members. As previously announced, the President also appointed Joshua DuBois as Director of the new office. (See prior posting.)

One provision in the Executive Order allows the White House to submit to the Attorney General constitutional and statutory questions on whether existing or prospective grants and practices are consistent with law. This reflects the President's decision not to issue a blanket regulation on whether recipients of faith-based funding can hire on religious grounds. Instead, as reported today by Politico, it will consider the issue on a case-by-case basis. According to US News, this is consistent with a report issued by the Brookings Institution last December (full text) that called for further study of the issue based on better data. (See prior related posting.)

Obama Gives Wide-Ranging Talk At National Prayer Breakfast

This morning, President Barack Obama attended the annual National Prayer Breakfast at the Washington Hilton hotel. (Washington Post.) The vice president, and various members of the Cabinet and of Congress also attended, as did representatives from around the world. The keynote address at the breakfast was delivered by former British Prime Minister Tony Blair. (USA Today.) President Obama gave a fascinating speech (full text), alluding to national and world problems facing his administration. He observed:

it strikes me that this is one of the rare occasions that still brings much of the world together in a moment of peace and goodwill. I raise this history because far too often, we have seen faith wielded as a tool to divide us from one another – as an excuse for prejudice and intolerance.

Previewing the Executive Order that he will sign later today creating the White House Office of Faith-Based and Neighborhood Partnerships, he said:

The goal of this office will not be to favor one religious group over another – or even religious groups over secular groups. It will simply be to work on behalf of those organizations that want to work on behalf of our communities, and to do so without blurring the line that our founders wisely drew between church and state.... We will also reach out to leaders and scholars around the world to foster a more productive and peaceful dialogue on faith.

Obama also spoke of his own religious upbringing and journey:

I was not raised in a particularly religious household. I had a father who was born a Muslim but became an atheist, grandparents who were non-practicing Methodists and Baptists, and a mother who was skeptical of organized religion, even as she was the kindest, most spiritual person I’ve ever known....

I didn’t become a Christian until many years later, when I moved to the South Side of Chicago after college. It happened not because of indoctrination or a sudden revelation, but because I spent month after month working with church folks who simply wanted to help neighbors who were down on their luck....

Oath Requirement In Oregon Tax Form Violates Free Exercise Rights

In Aslin v. Coos County Assessor, (OR Tax Ct., Jan. 13, 2009), a county tax assessor in Oregon refused to accept an unsigned personal property tax return from James Aslin. Aslin objected on religious grounds to the oath, included in the tax form, that required him to state "under penalties of false swearing" that the return is accurate. He submitted his return with the declaration crossed out and "I don't swear" written in the signature box. The Oregon Tax Court held that by rejecting Aslin's return without offering him an alternative method to confirm or declare the information in it was true, the assessor's office violated Aslin's free exercise rights under Art. I, Sec. 3 of the Oregon Constitution.

Muslim Charity May Get Access to Seized Documents

The Toledo Blade yesterday reported on an order issued Jan. 30 by an Ohio federal district judge ordering the government to produce copies of all the material seized in the 2006 searches of the headquarters of a Muslim charity and of its president's home. The search followed a freeze of the assets of KindHearts by the Treasury Department while the Office of Foreign Assets Control decides whether the group should be classified as a "Specially Designated Global Terrorist" organization. The freeze is still in effect. (See prior posting.)

The order is a first step toward giving KindHearts access to the documents, hard drives, videotapes and the like that up to now have been available only under severe restrictions. KindHearts' attorneys say that the organization needs access to the documents to defend against the charges that it funded the terrorist organization Hamas. Up to now, a magistrate's order gave KindHearts' lawyers access to a computer disk containing documents, but the attorneys were not permitted to print them out or share them with their clients. Under the court's new order, the government can still withhold specific documents where explicit justification is furnished.

Pope Says Holocaust Denying Bishop Must Recant

The Washington Post yesterday reported that Pope Benedict XVI's lifting of the excommunication of Lefebvrite bishop Richard Williamson (see prior posting) has generated a storm of protest from Benedict's home country, Germany. German Chancellor Angela Merkel said that the Pope's action welcoming Williamson back into the Church gives "the impression that Holocaust denial might be tolerated." Meanwhile, Zenit.org yesterday reported that the Pope did not know of Williamson's views when he acted. The Vatican released the full text of a note from Vatican Secretariat of State clarifying the Vatican's position. It says in part:

The viewpoints of Bishop Williamson on the Shoah are absolutely unacceptable and firmly rejected by the Holy Father, as he himself noted last Jan. 28, when, referring to that savage genocide, he reaffirmed his full and indisputable solidarity with our brother recipients of the First Covenant, and affirmed that the memory of that terrible genocide should induce "humanity to reflect on the unpredictable power of evil when it conquers the human heart," adding that the Shoah remains "for everyone a warning against forgetting, against negating or reductionism, because violence committed against even one human being is violence against all."

Bishop Williamson, to be admitted to episcopal functions in the Church, must also distance himself in an absolutely unmistakable and public way from his position on the Shoah, which was unknown to the Holy Father in the moment of the lifting of the excommunication.

OSCE Find Problems With Kazakhstan's Religion Law

On January 31, the OSCE Office for Democratic Institutions and Human Rights released a lengthy opinion (full text) on the proposed amendments to Kazakhstan's Religion Law. The amendments, passed by Kazakhstan's parliament last month, have been sent by the country's president to the country's Constitutional Council for review. (See prior posting.) The OSCE memo says that while Parliament met some of the concerns about the law, the law still does not meet Kazakhstan's OSCE commitments. The memo identifies eleven remaining areas of concern, ranging from problems in the provisions on registration of religions to overly-rigid parental consent provisions. Forum 18 yesterday posted a long report on the OSCE opinion.

Court Affirms IRS Has Misdelegated Church Summons Authority

In United States v. Living Word Christian Center, (D MN, Jan. 30, 2009), a Minnesota federal district judge adopted earlier recommendations made by a federal magistrate judge refusing to enforce an IRS summons for various church records. (See prior posting.) The court agreed that "an 'appropriate high-level Treasury official' has not made the necessary 'reasonable belief' determination required by Congress [in IRC Sec. 7611] before a church tax inquiry and examination of a church's records can occur." The IRS had delegated the determination to the Director of Exempt Organization Examinations. The government unsuccessfully argued that the court should defer to the IRS interpretation of the statutory requirement. At issue was an IRS summons seeking information about loans, lease of an aircraft and compensation paid by a Brooklyn Park (MN) megachurch to its pastor, Mac Hammond. Yesterday's Chronicle of Philanthropy reported on the decision.

Missouri Baptist Convention Loses Attempt To Regain Conference Center

In Executive Board of the Missouri Baptist Convention v. Windermere Baptist Conference Center, (MO App., Feb. 3, 2009), a Missouri appellate court rejected attempts by the Missouri Baptist Convention to regain control of the valuable Windermere Baptist Conference Center that broke away from the Convention (along with 4 other institutions) in a dispute over the fundamentalist stance of new MBC leaders. The court held that 2001 amendments to Windermere's articles of incorporation taking away MBC's power to elect Windermere trustees were validly adopted. MBC was not a member of Windermere and so, under the Missouri's non-profit corporation law, it was not entitled to vote on the amendments. The court also rejected MBC's contention that Windermere's charter should be rescinded and its property returned to MBC, as well as various other claims by MBC. ABP yesterday reported on the decision. (See prior related posting.)

Canadian Court's Order Against Falun Gong Focuses On Expressive Conduct

In Vancouver (City) v. Zhang, (B.C. Sup. Ct., Jan. 29, 2009), the Supreme Court of the Canadian province of British Columbia granted the city of Vancouver an injunction requiring Falun Gong protesters to remove a hut and billboard that they had constructed on a residential street in front of the Chinese Consulate. The protesters' vigil has been going on since 2001. The court held that the city could apply a ban on structures encroaching or obstructing free use of a street to the expressive conduct involved in the Falun Gong's protest. Its application does not violate the expression protections in Canada's Charter of Rights and Freedoms. The court said: "The protest vigil has expressive content. However, the method of the respondents' expression ... is incompatible with the fundamental purpose of the street and is therefore excluded from the protection of s. 2(b) of the Charter." The court emphasized that the city has not banned other forms of protest, such as carrying signs and posters or engaging in peaceful meditation. CBC News last week reported on the decision.