Monday, September 01, 2014

Recent Articles and Book of Interest

From SSRN:
From SmartCILP:
Recent Book:

Sunday, August 31, 2014

Recent Prisoner Free Exercise Cases

In Phillip v. Schriro, 2014 U.S. Dist. LEXIS 117720 (SD NY, Aug. 22, 2014), a New York federal district court allowed a Muslim inmate to proceed with most of his claims that his free exercise rights were violated when he was denied participation in Friday Jumu'ah services while in punitive segregation.

In Vann v. Fischer, 2014 U.S. Dist. LEXIS 118247 (SD NY, Aug. 25, 2014), a New York federal district court dismissed a complaint by a Santeria practitioner that his religious rights were violated by Directives requiring that he obtain approval to wear his religious beads, conceal them while wearing them, and not wear them while in transit.

In Moon v. Pratte, 2014 U.S. Dist. LEXIS 118707 (ED MO, Aug. 26, 2014), a Missouri federal district court allowed a Muslim inmate to proceed with his claims for religious discrimination. Plaintiff had claimed denial of halal food, a clean place to pray, Islamic religious materials, and services or speakers.

In Ex parte Herrera, 2014 Tex. App. LEXIS 9511 (TX App., Aug. 26, 2014), a Texas state appeals court denied habeas corpus relief to petitioner, in pre-trial home confinement under charges of sexually assaulting a child, who was barred from attending church services as a condition of his electronic monitoring.

In Kyles v. Chartier, 2014 U.S. Dist. LEXIS 119270 (D SC, Aug. 26, 2014), a South Carolina federal district court adopted a magistrate's recommendation and held that the religious exercise of a Hebrew Messianic Yisraelite inmate was not substantially burdened by allowing him to worship with the Jewish congregation but not in separate services.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 119490 (D CO, Aug. 27, 2014), a Colorado federal district court denied injunctive relief to an inmate who claimed that authroties were preventing him from observing his religion of Biblical Christianity that has its own times for various holidays and its own dietary requirements. The court concluded that the relief requested either related to past events or was too vague to implement.

In Williamson v. Twaddell, 2014 U.S. Dist. LEXIS 119566 (CD IL, Aug. 25, 2014), an Illinois federal district court permitted a Messianic Black Hebrew Israelite inmate to proceed with his complaint that he was denied kosher meals, access to Messianic service, baptism, a prayer cap and a ATanach@ religious book.

In Farrad v. Evans, 2014 U.S. Dist. LEXIS 119704 (SD NY, Aug. 15, 2014), a New York federal district court dismissed an inmate's complaint that he was denied Islamic services and ministerial consultation while he was in the prison's medical ward.

In Lloyd v. City of New York, 2014 U.S. Dist. LEXIS 119706 (SD NY, Aug. 4, 2014), a New York federal district court allowed Muslim inmates held at Rikers Island to move ahead with their complaint that they were not provided adequate or appropriate worship space, but dismissed their complaint that they were not furnished an adequate supply of religious materials.

5th Circuit: Religious Accommodation Turns On Employee's Personal Sincere Beliefs

In Davis v. Fort Bend County, (5th Cir., Aug. 26, 2014), in a 2-1 decision, the U.S. 5th Circuit Court of Appeals in a Title VII religious accommodation case held that employee Lois Davis, a county desktop support supervisor, had arguably acted out of religious belief when she absented herself from working on Sunday on a move into a new courthouse building in order to attend a special church ground breaking and community service event.  The district court had granted summary judgment to defendant holding that "being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice." The majority in the Court of Appeals concluded, however, that there is a genuine issue of material fact as to whether Davis had a sincere religious belief that she needed to attend church on that Sunday:
 A showing of sincerity ... does not require proof that the July 3rd church event was in itself a true religious tenet, but only that Davis sincerely believed it to be religious in her own scheme of things.
The majority also concluded that there is a genuine factual issue as to whether allowing an available substitute to work Davis' shift would have created undue hardship. Judge Smith dissented.

School Officials Do Not Enjoy Immunity In Equal Protection Suit Claiming Anti-Jewish Fellow-Student Harassment

In Shiveley v. Green Local School District Board of Education, (6th Cir., Aug. 27, 2014), parents sued school board members for permitting the anti-Jewish haressment and bullying of their daughter by fellow students.  School board members claimed qualified immunity.  In a 2-1 decision, the court held that defendants were not entitled to immunity as to plaintiffs' equal protection claim.  The majority said:
It is difficult to imagine how any school administrator could think he would not be liable for allowing unregulated religious and gender-based persecution that spanned a four-year period.
The majority also held that defendants were not entitled to immunity on plaintiffs' state law claim that defendants were liable for negligence for making the deliberate decision not to enforce anti-bullying policies even though they knew of the bullying of their daughter, including a report that her name was on a "kill list."

All three judges agreed that plaintiffs were entitled to qualified immunity as to plaintffs' substantive due process claim. saying that " it was not clearly established that school officials violate due process by failing to address student-on-student harassment."

Friday, August 29, 2014

Another Controversy Over Religious Symbols and Public Schools

Two elementary schools in Midlothian, Texas are the latest focus of controversy over religious symbols on public property. As reported by today by Courthouse News Service, the plaques, featuring two crosses, read: "Dedicated in the Year of Our Lord 1997 to the Education of God's Children and to their Faithful Teachers in the Name of the Holy Christian Church." Freedom From Religion Foundation complained about the plaques two months ago. The Dallas Observer yesterday reported on what happened next:
The district, advised by its attorneys that it would lose any lawsuit regarding the plaques, covered them with duct tape and prepared for their being replaced as the new school year began. Wednesday, the district posted a notice on its website that the plaques had been uncovered, but the district was "unsure who uncovered them" and had "no plans to recover them."
Meanwhile each side is marshalling its arguments. FFRF says:
Public schools may not advance, prefer, or promote religion. The plaque on the front of Mt. Peak Elementary violates this basic constitutional prohibition by creating the appearance that the school, and by extension the district, prefer religion to nonreligion and Christianity to all other religions.
Liberty Institute responds:
Our preliminary investigation of the Midlothian plaque issue leads us to believe the school district created a limited public forum for plaques relating to the topic of the building dedication.  The plaque at issue is thus private speech and the First Amendment prohibits the government from censoring private speech simply because of its religious viewpoint.
And media headlines fan the controversy, such as this one from Christian News: "Texas School District Duct Tapes Over Plaques Glorifying God Following Atheist Complaint."

Recent Prisoner Free Exercise Cases

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 113266 (D NJ, Aug. 15, 2014), a New Jersey federal district court reaffirmed its prior holding that an inmate, who variously claimed his relgion as Muslim or Jewish, did not have his ability to practice his religion affected by his inability to have his beard at the prison's kitchen.

In Fields v. Martin, 2014 U.S. Dist. LEXIS 114224 (ED MI, Aut.18, 2014), a Michigan federal district court accepted a magistrate's report and rejected an inmate's claim that his Buddhist religion required him to have a vegan diet.

In Nelson v. Jackson, 2014 U.S. Dist. LEXIS 115111 (SD OH, Aug. 19, 2014), an Ohio federal magistrate judge recommended rejecting a Jewish inmate's complaint that he was served meat and dairy products during the same meal and was required to cook or reheat his kosher meals in a microwave on the Sabbath.

In Mason v. Clear Creek County, 2014 U.S. Dist. LEXIS 115840 (D CO, Aug. 20, 2014), a Colorado district court, while dismissing a number of claims unrelated to prison conditions, permitted a Messianic Hebrew inmate to proceed with his claim that he was denied a religious diet and subjected to religious persecution.

In Hardy v. Agee, 2014 U.S. Dist. LEXIS 115488 (WD MI, Aug. 20, 2014), a Michigan federal district court dismissed a complaint by a Muslim inmate that because of his refusal to take a job in the kitchen he was placed on room restriction and was prevented from attending Islamic services and classes.

In Chau v. Young, 2014 U.S. Dist. LEXIS 116252 (ND CA, Aug. 20, 2014), a California federal district court dismissed a complaint by a Muslim inmate that a "modified program" imposed after a prison riot prevented his participation in Friday prayers, Islamic study classes and Ramadan observance with other inmates.

In Hunter v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 116156 (SD GA, Aug. 20, 2014), a Georgia federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that he was coerced into participating in a Christian faith-based program.

In Annabel v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 116440 (WD MI, Aug. 21, 2014), a Michigan federal district court rejected an inmate's claim that his free exercise rights were infringed when correctional officers mocked his Judaic Christian religion. It also rejected his claim that he was rataliated against for settling a lawsuit granting him a kosher diet.

Bolivian Evangelical Group Sues To Challenge New Rules Imposed On Religious Groups

In Bolivia last month, the National Association of Evangelicals of Bolivia filed a Petition of Unconsitutionality with the country's Constitutional Tribunal challenging new provisions regulating churches. The Protestant group is challenging Law 351 ("Granting of Juridical Personality to Churches and Religious Groups") passed in March 2013 and Supreme Decree 1987 implementing the law. The petition argues that various provisions of the law violate Art. 4 of the country's constitution protecting religious liberty. As reported by Morning Star News:
Decree 1987 imposes a list of burdensome preconditions upon religious organizations that contradict the language of Article 4. For example, denominations must file a “notarized listing” of the names, ID numbers, tax certificates and police files of national leaders, as well as notarized lists of names and ID numbers of their entire membership....
Decree 1987 also requires churches, synagogues and mosques to file copies of their bylaws with the Ministry of Foreign Affairs. To gain official approval, these documents must include procedures for “the admission and exclusion of members, the rights and obligations of members, an internal disciplinary regimen which includes infractions, sanctions and procedures,” and other such provisions.
NAEB argues that Decree 1987 requires churches "to operate under a model of administration contrary to our own faith doctrines."

N.H. Supreme Court Dismisses Challenge To Education Tax Credits On Standing Grounds

In Duncan v. State of New Hampshire, (NH Sup. Ct., Aug. 28, 2014), the New Hampshire Supreme Court vacated and remanded a trial court decision that invalidated New Hampshire's Education Tax Credit program. The trial court held that the program was a violation of the state constitution's ban on compelling any person to support sectarian schools. (See prior posting.) In yesterday's decision, the state Supreme Court did not reach the merits of the argument, but instead dismissed on standing grounds.  The Court summarized its holding:
We do not reach the merits of the petitioners’ declaratory judgment petition because we conclude that: (1) the 2012 amendment to RSA 491:22, I, which allows taxpayers to establish standing without showing that their personal rights have been impaired or prejudiced, is unconstitutional; and (2) absent that amendment, the petitioners have no standing to bring their constitutional claim.
AP reports on the decision.

Thursday, August 28, 2014

6th Circuit Affirms Dismissal of Suit By Christian Evangelists Preaching At Arab Festival

In Bible Believers v. Wayne County, (6th Cir., Aug. 27, 2014), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, affirmed the distrct court's dismissal of civil rights claims by Christain evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearbor, Michigan. Police insisted that they leave when the crowd turned hostile. The majority held that this action by the police did not violate plaintiffs' 1st or 14th Amendment rights:
The video from the 2012 Festival demonstrates that Appellants’ speech and conduct intended to incite the crowd to turn violent. Within minutes after their arrival, Appellants began espousing extremely aggressive and offensive messages—e.g., that the bystanders would “burn in hell” or “in a lake of fire” because they were “wicked, filthy, and sick”—and accused the crowd of fixating on “murder, violence, and hate” because that was “all [they] ha[d] in [their] hearts.” These words induced a violent reaction in short order; the crowd soon began to throw bottles, garbage, and eventually rocks and chunks of concrete..... As in Feiner, the situation at the 2012 Festival went far beyond a crowd that was merely unhappy and boisterous; as Richardson explained to the Bible Believers, the threat of violence had grown too great to permit them to continue proselytizing.
Judge Clay dissented, saying:
This is a clear heckler’s veto, breaching the principle that “hostile public reaction does not cause the forfeiture of the constitutional protection afforded a speaker’s message so long as the speaker does not go beyond mere persuasion and advocacy of ideas [but rather] attempts to incite to riot.”
AP reports on the decision. [Thanks to How Appealing for the lead.]

Suit By Pastor To Sex Offenders Challenges Law Restricting His Ministry

In Montgomery, Alabama yesterday, Ricky Martin, pastor of the Triumph Church in Clanton, Alabam filed a lawsuit challenging a recently enacted state law aimed at shutting down his ministry to sex offenders. The complaint (full text) in Martin v. Houston, (MD AL, filed 8/27/2014) contends that Al. Code Sec. 45-11-82 violates RLUIPA, the Alabama Religious Freedom Amendments, and the free exercise, bill of attainder and due process clauses of the federal Constitution. The law, which is applicable only in Chilton County, prohibits registered adult sex offenders who are not related from living in the same residence or within 300 feet of another registered sex offender. Martin, as part of his ministry, allows sex offenders to live in trailers behind his church while they are locating more permanent housing. AL.com reports on the case.

Court Awards Attorneys' Fees In Utah Polygamy Law Challenge

Last year, a Utah federal district court held that most of Utah's anti-polygamy statute is unconstitutional. (See prior posting.) After that grant of summary judgment, there remained a claim for monetary damages by plaintiffs based on 42 USC Sec. 1983. Yesterday in Brown v. Shurtleff, (D UT, Aug. 27, 2014) the court entered judgment on this remaining claim, awarding attorneys' fees, costs and expenses to plaintiffs.  The court concluded that defendants had waived their claims of prosecutorial immunity and qualified immunity.  Plaintiffs, subjects of the reality series "Sister Wives," decded to drop their claim for addtiional damages stemming from the criminal investigation and public comments in their case. The court's order reiterated last year's holding that the only portion of the Utah statute which is constituitonal is a provision that bars marriages inwhich an individual seeks multiple marriage licenses from the state. Provisions barring cohabiting or entering a religious marriage with someone else are unenforceable. Salt Lake Tribune reports on the decision.

Justice Department Sues Minnesota Town Over Denial of Use Permit To Mosque

The Justice Department announced yesterday the filing of a civil lawuit against St. Anthony Village, Minnesota for violating the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  The suit challenges the village's refusal to issue a conditional use permit to the Abu Huraira Islamic Center that seeks to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. According to the Minneapolis Star-Tribune, the 4-1 City Council vote reversing the recommndation of the City Planning Staff came after a Council meeting at which some residents made disparaging remarks about the Muslim faith.

6th Circuit Reverses Hate Crime Convictions In Amish Beard-Cutting Case

In an important decision under the Hate Crimes Prevention Act of 2009, the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed the convictions of 16 members of the Bergholz Amish community for their roles in beard and hair-cutting attacks on other Amish men and women. In United States v. Miller, (6th Cir., Aug. 27, 2014), the majority held that the district court gave an erroneous instruction to the jury on motivation that went to the central issue in the trial.

18 USC Sec. 249 prohibits willfully causing bodily injury "because of" the victim's actual or perceived religion. The entire panel agreed that the U.S. Supreme Court's January 2014 decision in Burrage v. United States, which post-dated the district court's decision, should be read to require "but for" causation here. The district court judge had refused to giv e a "but for" causation instruction, and instead instructed the jury that the victims' religion need only be a "significant factor" in motivating the assaults. Judge Sutton's majority opinion on appeal, after closely examining the testimony at trial, concluded:
When all is said and done, considerable evidence supported the defendants’ theory that interpersonal and intra-family disagreements, not the victims’ religious beliefs, sparked the attacks. And all of this evidence could have given a reasonable juror grounds to doubt that religion was a but-for cause of the assaults.
Judge Sargus (sitting by appointment) dissented arguing that there can be more than one "but-for" causes, and that here it was only because of the religious significance of the act that defendants chose to cut off the hair and beards of their victims. He contended that the majority had wrongly required faith-based animus in order to convict.  New York Times, reporting on the decision, points out that defendants are still in prison on other charges.  [Thanks to Tom Rutledge for the lead.]

Tuesday, August 26, 2014

Court Dismisses Lease Dispute That Involves Hutterite Competing Factions

According to the Aberdeen News, a South Dakota trial court Monday dismissed a lawsuit over the right to farm leased land that in reality was part of the ongoing battle between two Hutterite factions over who controls the Hutterville Colony in South Dakota.  Red Acre LLC sued claiming that it entered a lease to allow it to farm 9800 acres in the Colony and that Hutterville Hutterian Brethren and four colony residents, including George Waldner, tried to plant crops and interfere with Red Acre.  Waldner, who leads one of the competing factions, responded that Red Acre is merely a shell for his rival Johnny Wipf Sr., and asked for the lease be declared void.  The court, relying on prior decisions of the South Dakota Supreme Court (see prior posting), held that civil courts have no jurisdiction of the internal dispute of the religious colony.

8th Circuit: North Dakota Ten Commandments Monument Is OK

In Red River Freethinkers v. City of Fargo, (8th Cir., Aug. 25, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision held that a Ten Commandments monument at Civic Plaza in Fargo, North Dakota is permissible under Supreme Court and 8th Circuit precedent. Judge Bye dissening argued that this case differs from those where similar monuments have been upheld because here it permanently stands alone in a prominent location. He contended that the district court erred in granting summary judgment for defendants because factual questions remain about the city's involvement with the religious motives of the monumnent's backers.

Jury Questions Remain In Town Hall Bar Mitzvah Challenge

In Whitnum v. Town of Greenwich, 2014 U.S. Dist. LEXIS 115617 (D CT, Aug. 19, 2014), a Connecticut federal district court refused to grant summay judgment to plaintiff who complained that the Town of Greenwich and its First Selectman allowed a bar mitzvah to take place in the Greenwich Town Hall, but denied similar requests from other religious groups. At issue was the ceremony for three Israeli exchange students after an Israeli Independence Day ceremony. In plaintiff's Establishment Clause challenge, the court held that substantial fact questions remain for the jury as to whether the ceremony amounted to an endorsement of religion by the city.

Monday, August 25, 2014

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, August 24, 2014

Police Officer States Establishment Clause Claim

In Marrero-Mendez v. Pesquera, 2014 U.S. Dist. LEXIS 116118 (D PR, Aug. 19, 2014), a Puerto Rico federal district court held that a Puerto Rico police force officer had adequately stated an Establishment Clause claim.  Plaintiff Alvin Marrero-Méndez claimed that his commander opened and closed police officer formations with Christian prayers, and when Marrero-Méndez complained and attempted to walk away, he was told to stop until the prayer was completed. Then his commander shouted that Marrero-Méndez was standing apart because "he doesn't believe in what we believe."