Friday, September 30, 2016

Nevada Supreme Court Upholds School Choice Plan, But Invalidates Appropriations For It

In Schwartz v. Lopez, (NV Sup. Ct., Sept. 29, 2016), the Nevada Supreme Court gave a mixed victory to opponents of the state's school choice program.  The state's Educational Savings Account program is the most extensive in the country.  It allows parents of any child who has attended a public or charter school for at least 100 days to receive into an educational savings account a portion of the state's public school funding for use at an eligible alternative private (including religious) school. (See prior posting.) The Court held that the plan does not violate Art. 2, Sec. 11 of the Nevada Constitution that requires the legislature to provide for a uniform system of common schools. Nor does it violate Art. 11, Sec. 10 that prohibits use of public funds for sectarian purposes since the funds cease being public funds when deposited in a parent's educational savings account.

The Court however held that no valid appropriation had been made by the legislature to fund the Educational Savings Account program.  The state is using funds appropriated for public schools. Therefore the Court remanded to the trial courts the two cases under review ordering the issuance of declaratory judgments and permanent injunctions against implementing the Educational Savings Account program until the legislature makes a valid appropriation to cover its costs.

Justices Douglas and Perry dissented in part contending that the Court should not have reached the issue of whether the plan violates Art. 11, Sec. 10's prohibition on use of public funds for sectarian purposes. Las Vegas Sun reports on the decision.

Two RLUIPA Suits Over Rezoning For Islamic School Are Settled

According to the Ann Arbor News, Pittsfield Township, Michigan yesterday reached agreements to settle two related RLUIPA lawsuits challenging the township's refusal to rezone a vacant parcel of land for construction of a pre-K through 12 school by the Michigan Islamic Academy. One suit was brought by the Justice Department (see prior posting). The Consent Order (full text), which must still be approved by the court, is described in a DOJ press release:
As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non- discrimination policies and practices [by signage and on the Internet].  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.
The other suit was brought by the Michigan Islamic Academy (see prior posting).  In settling that suit, Pittsfield Township's insurers will pay $1.7 million in damages and attorneys' fees.  CAIR-MI described this as "one of the largest-ever RLUIPA settlements."  As part of the settlement, Michigan Islamic Academy agreed to add a residential development with "significant landscape buffering" between the school and adjacent residential lots.

Muslim Palestinian Teacher's Discrimination Claims Survive Motion To Dismiss

In Hashem v. Hunterdon County, (D NJ, Sept. 20, 2016), a New Jersey federal district court refused to dismiss certain claims by a New Jersey high school history teacher that her school and her supervisors discriminated and retaliated against her on the basis of religion, race and national origin.  The teacher, Sireen Hashem, a Muslim Arab of Palestinian descent, was reprimanded for showing a video, at the suggestion of another teacher who had also shown it, featuring the young Nobel laureate Malala Yousafzai, the Pakistani girl's education advocate. Subsequently Hashem's contract was not renewed.  According to the court:
Hashem alleges that she was instructed not to "teach current events in the same manner as her non-Arab, non-Palestinian and non-Muslim colleagues." ...On a separate occasion, Hashem was allegedly told "not [to] mention Islam or the Middle East in her class, and that she "should not bring her culture, life experience or background into the classroom."
While dismissing a number of her claims, the court allowed the teacher to move ahead with claims for employment discrimination, disparate treatment, retaliation and discriminatory discharge.

Thursday, September 29, 2016

Baptist Joint Committee Appoints New Executive Director

In a press release issued earlier this week, the Baptist Joint Committee for Religious Liberty announced that it has chosen Amanda R. Tyler as its next executive director. She will replace Brent Walker who is retiring.  The Baptist Joint Committee is a D.C.-based advocacy group that promotes both religious liberty and separation of church and state.

Appeals Court Upholds Ban On Father Discussing Religion During Child Visitation

In Koch v. Koch, (FL App., Sept. 28, 2016), a Florida state appellate court upheld a trial court's order in a parenting plan that was part of a divorce proceeding prohibiting the father from discussing any religious matters during his two hours per week visitation time with his 3 children.  The trial court had concluded that religiously-based admonishments, threats of damnation, and demonization of the children’s mother was abusive to the children, causing them anxiety and severe emotional distress.

Jewish Religious Court Lacks Standing To Appeal Bankruptcy Stay of Its Proceedings

As previously reported, last year a New York federal bankruptcy court held that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals brought in a Jewish religious court (bais din). In In re Congregation Birdchos Yosef, (SD NY, Sept. 27, 2016), a New York federal district court dismissed for lack of standing an appeal of the bankruptcy court's decision brought by the Jewish religious court involved:
 Any effect on the Bais Din from that decision is indirect, seeks to challenge orders directed at third parties, and is insufficient to confer standing.....
Appellant argues that “[t]he Bais Din is a gatekeeper who ensure [sic] that community members can seek to enforce community standards and Jewish law,” and that the Bankruptcy Court’s Order enforcing the automatic stay “interferes with this function.”... This contention underscores the lack of any direct, financial impact the Bankruptcy Court’s Order has had – or could have – on the Bais Din....
That the Bais Din claims that its or its constituents’ constitutional right to the free exercise of religion was impaired by the Bankruptcy Court’s ruling does not give it standing.

Supreme Court Calendar Adjusted This Year For Jewish High Holidays

National Law Journal reports that the U.S. Supreme Court has adjusted its argument calendar to accommodate the Jewish High Holidays which this year come in early October.  The first day of Rosh Hashana falls on Oct. 3-- the first Monday in October.  While 28 USC Sec. 2 requires the Supreme Court to begin its term on the first Monday in October, this year the Court will only hold a brief session that day for announcements and swearing in new members of the Supreme Court bar. The Court also will not sit at all on Yom Kippur, October 12.  Currently 3 Justices are Jewish-- Justices Ginsburg, Breyer, Kagan.  Supreme Court nominee Merrick Garland is also Jewish.

Wednesday, September 28, 2016

Islamist Sentenced By International Criminal Court For Destruction of Religious Sites In Mali

In In the Case of  The Prosecutor v. Ahmad Al Faqi Al Mahdi, (ICC,  Sept. 27, 2016), a trial chamber of the International Criminal Court sitting in The Hague unanimously found Ahmad Al Faqi Al Mahdi guilty of war crimes for directing attacks against religious and historic buildings-- primarily mausoleums that were UNESCO World Heritage sites-- in Timbuktu, Mali in 2012. The Chamber sentenced Al Mahdi, leader of a morality brigade known as the Hesbah, to 9 years in prison.  A summary issued by the International Court sets out background:
In early April 2012, following the retreat of Malian armed forces, the groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control of Timbuktu. From then until January 2013, Ansar Dine and AQIM imposed their religious and political edicts on the territory ... the Hesbah....
The mausoleums of saints and mosques of Timbuktu are an integral part of the religious life of its inhabitants.... These mausoleums are frequently visited by the residents – they are places of prayer and, for some, places of pilgrimage....
Mr. Al Mahdi expressed his opinion that all Islamic jurists agree on the prohibition of any construction over a tomb, but recommended not destroying the mausoleums so as to maintain relations between the population and the occupying groups. Nevertheless, Ag Ghaly [the Ansar Dine leader] gave the instruction to proceed.... Despite his initial reservations, Mr Al Mahdi accepted to conduct the attack without hesitation on receipt of the instruction.... He ... wrote a sermon dedicated to the destruction of the mausoleums, which was read at the Friday prayer at the launch of the attack. He personally determined the sequence in which the buildings were to be attacked.
The International Criminal Court issued a press release announcing the decision. AP reports on the case.

City Seeks To Ban Elaborate Christmas Display

In Plantation, Florida, the city-- citing code violations-- is asking a Broward County court to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have put up at their home for the last 23 years.  According to WSVN News yesterday, the Hyatts' neighbors complain that the display draws thousands to the neighborhood each year between Thanksgiving and the end of December, creating noise, litter and severe traffic problems.

State High School Athletic Association Sued Over Its Refusal To Allow Broadcast of Pre-Game Prayers

In Tampa, Florida yesterday, a Christian high school filed a lawsuit in federal district court against the Florida High School Athletic Association (FHSAA) which refused to allow the school to use the loudspeaker at a state football championship game for pre-game prayer.  The complaint (full text) in Cambridge Christian School v. Florida High School Athletic Association, (MD FL, filed 9/27/2016), alleges that both Cambridge Christian and its opponent at the game, another private Christian school, wanted to lead students, teacher and fans in communal prayer before the game.  FHSAA, the state agency that supervises and regulates interscholastic athletics for both public and private schools in Florida, refused on the ground that as a state agency, it could not legally grant permission of this kind, especially since the stadium in which the championship game was being played is a public facility paid for mostly by tax dollars. The teams ended up praying together on the field, but could not be heard by spectators and fans.

The school contends that the refusal to allow it to use the loudspeaker for prayer, while it is available for non-religious messages and cheer leading before, during and after the game, violates its rights under the free exercise, free speech and establishment clauses of the state and federal constitutions as well as under the Florida Religious Freedom Restoration Act. Tampa Bay Times reports on the filing of the lawsuit.

Preliminary Injunction Denied In Challenge To Grants To Churches

Americans United reported Monday that a Massachusetts state trial court has denied a preliminary injunction in Caplan v. Town of Acton, Massachusetts, a suit challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. (See prior posting.) Plaintiffs contended that the grants violate the Anti-Aid provision of the Massachusetts constitution.

Tuesday, September 27, 2016

Catholic Order Sued For Release of Records of Abusive Priests

AP reports on a lawsuit filed in Cook County Illinois Circuit Court on Monday against  a Chicago-based religious order, the Claretians Missionaries, seeking release of all records relating to allegations of abuse by any of its priests.  The suit was filed by Eric Johnson, a 51-year old Colorado man who says that he was abused over 40 years ago by a 15-year old boy, Bruce Wellems, who later became a prominent Claretian priest known for his work with at-risk youths. In the 1990's the Claretians promised Johnson that they would closely monitor Wellems and not allow him access to children unless another adult was present.  Johnson filed suit when the Claretians did not follow through on that promise.

Suit By Web Designer Challenges LGBT Anti-Discrimination Law

Last week, Lorie Smith, the owner of a Colorado graphic and web design company, filed suit in federal district court challenging the constitutionality of Colorado's public accommodation anti-discrimination law.  The complaint (full text) in 303 Creative LLC v. Elenis, (D CO, filed 9/20/2016) alleges that the anti-discrimination provisions as they apply to plaintiffs violate various provisions of the 1st and 14th Amendments, including the free exercise clause.  The complaint alleges:
7. Colorado law makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication stating that they will not design, create, or publish websites celebrating same-sex marriages. See Colo. Rev. Stat. § 24-34-601(2)(a).
8. Colorado law also makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication indicating that a person’s patronage at 303 Creative is “unwelcome, objectionable, unacceptable, or undesirable” because of sexual orientation. See Colo. Rev. Stat. § 24-34-601(2)(a).
9. Therefore, Lorie and 303 Creative cannot explain on 303 Creative’s website their religious belief that God designed marriage as an institution between one man and one woman and why they cannot create wedding websites promoting and celebrating any other conception of marriage.
ADF issued a press release announcing the filing of the lawsuit.

Court Requires School To Allow Transgender 5th Grader To Use Bathrooms Matching Her Gender Identity

In Board of Education of Highland Local School District v. U.S. Department of Education, (SD OH, Sept. 26, 2016), an Ohio federal magistrate judge granted a preliminary injunction to a fifth grade transgender girl requiring her school to allow her to use the girls' restroom.  The court found that she was likely to succeed on her Title IX and equal protection claims, saying in part:
the Sixth Circuit, as well as several other courts of appeals, have held that sex-discrimination claims based on gender noncomformity are cognizable under Title IX’s close cousin, Title VII.
Finding that heightened scrutiny is called for on plaintiff's equal protection claim, the court said in part:
Amici from school districts in twenty states around the country ... provide further support for the Court’s conclusion that Highland cannot show that allowing a transgender girl to use the girls’ restroom would compromise anyone’s privacy interests. When they adopted inclusive policies permitting transgender students to use bathrooms and locker rooms that correspond with their gender identity, all of these school districts wrestled with the same privacy concerns that Highland now asserts.... The school administrators agreed that although some parents opposed the policies at the outset, no disruptions in restrooms had ensued nor were there any complaints about specific violations of privacy.
The court conversely denied the school's motion for a preliminary injunction to prevent federal agencies from enforcing their interpretation of Title IX.

EEOC Sues Over Hospital's Requirement For Clergy Certification To Grant Religious Accommodation

AP reports that the EEOC filed a religious discrimination lawsuit in a Pennsylvania federal district court last Thursday charging that Erie (PA)'s St. Vincent Hospital wrongfully fired six employees who refused for religious reasons to get flu shots.  At issue is the hospital's requirement that for employees to obtain religious exemptions from the requirement, they must present a certification from a member of the clergy.  The six employees who did not provide proof of their religious beliefs were adherents of  Russian Orthodox, Independent Fundamental Baptist, Christian mysticism, Methodist and nondenominational Christian faiths. [Thanks to Tom Rutledge for the lead.]

Court Refuses To Invoke Ministerial Exception Doctrine To Dismiss Discrimination Suit At Early Stage

In Yin v. Columbia International University, (D SC, Sept. 26, 2016), a South Carolina federal district court, agreeing with a magistrate's recommendation, rejected defendant's invocation of the ministerial exception doctrine as a basis for dismissing for failure to state a claim (Rule 12(b)(6)) a Title VII and the Equal Pay Act lawsuit.  Plaintiff, a female Asian-American Ph.D., was terminated from her faculty position at CIU, a multi-denominational Christian college. She claimed racial, gender and national origin discrimination as well as retaliation. The college claimed that plaintiff (who taught in the school's education program) was required to further the spiritual and pastoral mission of the University including teaching the gospel, spreading the Christian faith, and participating in worship.  However the court held since plaintiff's complaint does not reflect these duties, it is too early in the proceedings to dismiss on ministerial exception grounds.

Monday, September 26, 2016

Recent Articles of Interest

From SSRN:
From SmartCILP:

New Guam Law Lifting Abuse Limitation Period Will Likely Force Archdiocese Into Bankruptcy

AP reports that Guam Governor Eddie Calvo on Friday signed Substitute Bill No. 326-33 (full text) which retroactively eliminates the statute of limitations for civil suits alleging child sexual abuse. Passage came after abuse allegations were leveled against Guam's Catholic Archbishop Anthony Apuron.  A letter (full text) from the Apostolic Administrator of the Archdiocese of Agana read at mass on Sept. 18 says that he is urging the Vatican to remove Apuron and appoint a successor.  He apologizes to victims, but says that retroactive lifting of the statute of limitations will likely force the Archdiocese to file for bankruptcy.

Sunday, September 25, 2016

Recent Prisoner Free Exercise Cases

In Whitney v. Varner, 2016 U.S. Dist. LEXIS 127018 (MD PA, Sept. 19, 2016), a Pennsylvania federal district court held that where an inmate refused to provide a written indication of his religious preference, prison officials could not be found to have substantially burdened the exercise of his unknown belief.

In Sims v. Frakes, 2016 U.S. Dist. LEXIS 127229 (D NE, Sept. 19, 2016), a Nebraska federal district court allowed a Native American inmate to proceed on his claim for prospective injunctive relief challenging limitations placed on sweat lodge and Pow Wow ceremonies.

In Windham v. Rodriguez, 2016 U.S. Dist. LEXIS 127501 (ED CA, Sept. 19, 2016), a California federal magistrate judge rejected a Muslim inmate's claim that destruction of his Qur'an by a corrections officer substantially burdened his religious exercise, and held that to the extent he is suing for deprivation of property, he has an adequate post-deprivation remedy.

In Gray v. Perkins, 2016 U.S. Dist. LEXIS 128117 (D NH, Sept. 20, 2016), a New Hampshire federal district court dismissed an inmate's complaint that in a cell search his Bibles, religious books, and religious pamphlets were seized and not returned.

In Bethel v. Jenkins, 2016 U.S. Dist. LEXIS 128815 (SD OH, Sept. 21, 2016), an Ohio federal district court, adopting a magistrate's recommendation, held that an exception that treated religious books shipped to inmates more favorably than other books did not violate the Establishment Clause or equal protection clause.

In Furnace v. Gipson, 2016 U.S. Dist. LEXIS 129156 (ED CA, Sept. 20, 2016), a California federal magistrate judge recommended that an inmate be permitted to file and proceed with his third amended complaint claiming that prison authorities denied him a religious name change and denied his request to purchase religious items.

In Eleby v. Graham, 2016 U.S. Dist. LEXIS 129831 (ND NY, Sept. 21, 2016), a New York federal magistrate judge recommended dismissing a complaint by a Nation of Islam inmate who objected to a 6-day period during Ramadan where, because of a lockdown, Muslim inmates were not permitted to meet for communal meals or prayer and were provided a bag meal instead of a hot halal meal to break fast at sun up.

In Lewis v. Maye, 2016 U.S. Dist. LEXIS 129861 (D KS, Sept. 21, 2016), a Kansas federal magistrate judge recommended dismissing a suit by a Nation of Islam inmate who contended that the prison chaplain did not consider the NOI holiday of Savior's Day important enough to be recognized or given precedence over other activities in the multi-faith Life Connections Program.

In Harris v. Escamilla, 2016 U.S. Dist. LEXIS 130006 (ED CA, Sept. 22, 2016), a California federal magistrate judge recommended dismissing a Muslim inmates's complaint that during a cell search a corrections officer stepped on his Qur'an and there was delay in his obtaining a replacement copy.

In Miles v. Guice, 2016 U.S. Dist. LEXIS 130316 (ED NC, Sept. 23, 2016), a North Carolina federal district court dismissed a suit by a member of Nations of Gods and Earths who wanted group worship, holiday fasting, a vegan diet and written materials, and wanted to possess a medallion or flag.

In Howard v. Foster, 2016 U.S. Dist. LEXIS 130465 (D NV, Sept. 23, 2016), a Nevada federal district court refused to dismiss an inmate's complaint about conduct that an officer assigned to oversee Muslim religious services was disruptive and yelled so that inmates were unable to complete their services.

No Taxpayer Standing To Challenge NC Magistrate Opt-Out Law

In Ansley v. Warren, (WD NC, Sept. 20, 2016), a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates to recuse themselves from performing same-sex marriages on the basis of sincerely held religious beliefs. Plaintiffs, asserting taxpayer standing, pointed to expenditures involved in implementing the opt-out provisions.  The court held, however:
Plaintiffs have not pointed to the establishment of any specific appropriation of funds by the legislature to implement the allegedly unconstitutional purpose of S.B. 2. The funding provisions that Plaintiffs challenge here—travel expenses for magistrates and retirement contributions—are not “expenditures made pursuant to an express [legislative] mandate and a specific [legislative] appropriation,” ... but are “incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute,” which is not sufficient for the purposes of standing.
Dealing with a separate due process concern, the court said:
Because a magistrate’s “sincerely held religious objection” is secret, a person appearing before a state magistrate on a matter in said magistrate’s jurisdiction will not be aware of a potential bias against them. A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude.... But such matters must be dealt with as they arise.

Limit On Parolee's Ability To Attend Church Is Too Broad

In United States v. Hernandez, (ED NY, Sept. 20, 2016), a New York federal district court held unconstitutional a condition of supervised release limiting church attendance that was imposed on defendant after he completed 4 years in prison for receiving child pornography.  Defendant, a 38-year old man, was not permitted to attend church services where minors are present. The court said that this totally prevents him from attending the church of his choice with his father. The court concluded:
Defendant has a right to attend church services. Preventing him from going to his place of worship because the services are also attended by minors unnecessarily burdens that right. It is reasonable to apply a condition that defendant not physically touch minors while attending church services, unless doing so is a part of his religious obligation.... This condition is narrowly tailored. It strikes the necessary balance of allowing defendant to exercise his freedom to associate and participate in religious services, while protecting minors.

Muslim Safety Officer Awarded $100,000 In Discrimination Suit

In Dingus v. Tennessee Department of Safety, (ED TN, Sept. 20, 2016), a Tennessee federal district court, on remand from the 6th Circuit, awarded damages of $100,000 to a former Tennessee safety officer for mental anguish and emotional distress he suffered as a result of religious discrimination.  De'Ossie Dingus, a Sunni Muslim, sued under Title VII claiming discrimination and harassment over the years. Knoxville News Sentinel reports on the decision.

Saturday, September 24, 2016

Interlocutory Appeal Unavailable In Ministerial Exception Case

In Trinity Christian School v. Commission on Human Rights & Opportunities, 2016 Conn. Super. LEXIS 2256 (CT Super. Ct., Aug. 22, 2016), a Connecticut trial court dismissed an interlocutory appeal from a decision of the state Commission on Human Rights.  In the case, a Commission referee refused to dismiss a pregnancy discrimination claim brought by an employee against Trinity Christian School.  The school appealed claiming that it is immune from liability under Connecticut's Religious Freedom Restoration Act.  The court held however that any defense the school has is under the ministerial exception doctrine, which is an affirmative defense to liability.  Therefore an interlocutory appeal is not available. The court rejected the school's argument that merely requiring it to defend the case with an affirmative defense would impose a burden on religious belief.

Hearing On Hyde Amendment And Born Alive Protection Act

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled The Ultimate Civil Right: Examining the Hyde Amendment and the Born Alive Infants Protection Act.  The hearing was held as the 40th anniversary of the Hyde Amendment approaches.  A video of the full hearing and transcripts of prepared testimony by witnesses are available on the committee's website. The Born Alive Infants Protection Act (HR 3504) has passed the House but has not been voted on by the Senate.