Pentagon's DADT Report Includes Consideration of Moral and Religious Objections

Today the Defense Department released its Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell". Overall the report concluded that "when coupled with the prompt implementation of the recommendations we offer ..., the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low."  The Report gives significant attention to moral and religious objections to repeal. The Executive Summary of those concerns reports:

In the course of our review, we heard a large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay.  Some feared repeal of Don’t Ask, Don’t Tell might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality.  The views expressed to us in these terms cannot be downplayed or dismissed.  Special attention should also be given to address the concerns of our community of 3,000 military chaplains.  Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplain corps.  A large number of military chaplains (and their followers) believe that homosexuality is a sin and an abomination, and that they are required by God to condemn it as such.

However, the reality is that in today’s U.S. military, people of sharply different moral values and religious convictions—including those who believe that abortion is murder and those who do not, and those who believe Jesus Christ is the Son of God and those who do not—and those who have no religious convictions at all, already co-exist, work, live, and fight together on a daily basis.  The other reality is that policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate.  Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.

Within the chaplain community, the solution to this issue can be found in the existing guidance developed by and for our chaplains, which we believe should be reiterated as part of any education and training concerning repeal.  Those regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and a chaplain’s duty to care for all.  Existing regulations state that chaplains “will not be required to perform a religious role...in worship services, command ceremonies, or other events, if doing so would be in variance with the tenets or practices of their faith.”  At the same time, regulations state that “Chaplains care for all Service members, including those who claim no religious faith, facilitate the religious requirements of personnel of all faiths, provide faith-specific ministries, and advise the command.”

Extensive additional discussion of religious objections  is found at pp. 134- 136 of the Report and in the Findings from the Qualitative Research Tasks, pp. 2, 15, 22-23, 71-72, 125-26, 135-37.  The Report along with additional supporting material is available at a special DOD web page devoted to DADT. The New York Times reports generally on today's developments.

Federal Court Issues Preliminary Injunction Against Oklahoma Anti-Shariah Amendments

Yesterday an Oklahoma federal district court issued a preliminary injunction barring the Oklahoma State Board of Elections from certifying the election results for State Question 755-- the state constitutional amendment that would prevent Oklahoma courts from considering international law or Shariah law. (See prior posting.)  In Awad v. Ziriax, (WD OK, Nov. 29, 2010), the court found that plaintiff, a Muslim, has standing to challenge the amendment because he has suffered injury in fact:

Plaintiff has sufficiently set forth a personal stake in this action by alleging that he lives in Oklahoma, is a Muslim, that the amendment conveys an official government message of disapproval and hostility toward his religious beliefs.... [I]t would be incomprehensible if, as plaintiff alleges, Oklahoma could condemn the religion of its Muslim citizens, yet one of those citizens could not defend himself in court against his government’s preferment of other religious views.

Second, plaintiff claims that his First Amendment rights will be violated by the invalidation of his last will and testament which incorporates various teachings of Mohammed. 

The court went on to find that plaintiff's facial challenge to the amendment is ripe for review.  Finally the court concluded that plaintiff had made a strong showing of the likelihood of success on his Establishment Clause claim:

While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff’s faith....

Additionally, the Court finds that plaintiff has made a strong showing that the amendment will foster an excessive government entanglement with religion. Because, as set forth above, Sharia Law is not “law” but is religious traditions that differ among Muslims, the Court finds that plaintiff has shown that to comply with the amendment, Oklahoma courts will be faced with determining the content of Sharia Law, and, thus, the content of plaintiff’s religious doctrines.

The Oklahoman reports on the decision.

UPDATE: On Tuesday, the Oklahoma State Election Board voted to appeal the district court's ruling. (Fox News 11/30).

Indian Court Says Census Information On Religion of Public Figures Is Confidential

In India, the Punjab and Haryana High Court yesterday ruled that the 2005 Right to Information Act does not authorize disclosure of the religion that an individual listed on his or her census form. Law et al News reports that  the case grew out of a request by an individual for information about the religion listed by United Progressive Alliance Party leader Sonia Gandhi and her family members. Section 15 of the Census Act of 1948 protects the confidentiality of census records. The court held that the later Right to Information Act did not change that protection because the RTI Act excludes from disclosure information that has no relationship to any public activity or interest. The court rejected the argument that disclosure of information about the religion of leaders of the nation is in the public interest.

Brooklyn Cop Forces Rabbi To Write On the Sabbath

Yesterday's New York Post reports on a run-in between a 27 year old Orthodox rabbi and Brooklyn police when Rabbi Sholom Emert was stopped for jaywalking after sundown on Friday.  Because the rabbi could not carry on the Sabbath, he had no identification. He offered to show his ID to the police if they would accompany him home. The police officer instead told him that he must write down his name.  Writing also violates the Sabbath, but the rabbi complied under threat of otherwise being detained.  Rabbi Emert says this is the first time in his life that he has broken the Sabbath.

Traditional Marriage Group Cannot Intervene In DOMA Challenge

In Benson v. Alverson, (MN Dist Ct., Nov. 24, 2010), a Minnesota state trial court denied a motion filed by the Minnesota Family Council seeking leave to intervene in a lawsuit challenging Minnesota' Defense of Marriage Act.  Plaintiffs in the case are three same-sex couples and the minor children of one of the couples. The Council is organized to defend traditional marriage, based on Judeo-Christian principles. The court concluded that lobbying for a law does not give an organization a sufficient interest to be entitled to intervention as of right.  In addition, the court concluded that the Council lacks standing to intervene in the case:

[A]lthough the Council attempts to cloak its interest in the nomenclature of organizational injuries and interest, the alleged interest is simply the expression of a desire that the DOMA as written be obeyed. The Council believes that same-sex marriage would harm society, but the Court finds no precedent equating societal non-economic harm to a private organization's injury-in-fact.

The Council had argued that if DOMA is struck down, it will have to divert resources to a campaign to restore a ban on same-sex marriage.  Yesterday's Minnesota Independent reported on the decision.

Religion Clause Chosen In ABA Top 100 Blogs; Voting On For Top 12

I am pleased to announce that Religion Clause has been chosen this year by the American Bar Association as one of the top 100 legal blogs.  Readers can now vote among those 100 for the top twelve-- one in each of the categories designated by the ABA.  To vote for your favorites, click here or on the icon in the side bar.

Pakistan Court Temporarily Bars Pardon For Christian Woman Sentenced To Death For Blasphemy

In Pakistan today, the Lahore High Court issued a temporary stay barring Pakistani President Asif Ali Zardari from issuing a pardon to Aasia Bibi (also known as Aasia Noreen), a Christian woman who has been sentenced to death on blasphemy charges. (See prior posting.) Continental News and Sify News report that the order comes after Bibi filed a clemency appeal with the President through the Governor of Punjab, Salman Tasseer. Tasseer, who believes the charges against Bibi were fabricated, assured her of a sympathetic response. However hard line Islamic parties began protests against the governor and any pardon. The court ruled that because the case was still in the courts, any pardon would be premature, and ordered the President and the Punjab governor to reply by December 6 when another hearing is scheduled.

Utah High Court Won't Block Jeffs' Extradition To Texas

Last week, the Utah Supreme Court refused to block the extradition of FLDS leader Warren Jeffs to Texas to face bigamy and sexual assault charges.  Washington Post  and Deseret News reported last week that the Utah high court issued a brief order lifting the stay on extradition that had been imposed by the Court of Appeals and cleared the way to implement the extradition agreement signed by the governors of Utah and Texas. Jeffs has previously been convicted of rape as an accomplice in Utah, but the Utah Supreme Court reversed the conviction because of faulty jury instructions. (See prior posting.) Jeffs argued that extradition while his case is on remand to the trial court will deny him a speedy trial. He also objected to provisions in the extradition agreement that would deny him bail in Texas. [Thanks to Modern Pharisee for the lead.]

All-Day Holiday Music Will Play Again This Year In Arizona Jail

In Phoenix, Arizona, Sheriff Joe Arpaio plans again this year to play Christmas music over speakers in his county jail for 12 hours a day. The Washington Times reports that the music will begin today with the playing of "Rudolph the Red Nosed Reindeer", Frosty the Snowman" and "Feliz Navidad.".  The sheriff has prevailed in six lawsuits-- most recently in December 2009-- in which inmates challenged the practice as a violation of their religious rights and as cruel and unusual punishment. So again this year, 8,000 inmates will hear multi-ethnic and culturally diverse holiday music all day during the holiday season. Apparently they can avoid the music only by remaining in their cells. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

Ban On Kosher Slaughter of Poultry In New Zealand Lifted After Disclosure of Improper Considerations By Agriculture Minister

According to today's Jerusalem Post, two days before a scheduled court trial on New Zealand's ban on kosher slaughtering, the parties have reached a settlement that allows kosher slaughter of poultry to resume. The government has also agreed to negotiate on kosher slaughtering of sheep. As a practical matter, kosher beef and most kosher mutton is imported from Australia anyway. The ban was put in place because of concern that kosher slaughtering takes place without the animals first being stunned. (See prior posting.) A temporary stay during pending litigation was entered in August. (See prior posting.)

According to today's New Zealand Herald, the government's change of heart came after it was disclosed in a High Court opinion released Friday that Agriculture Minister David Carter had a conflict of interest and improperly considered trade issues when originally imposing the ban. The opinion also indicated that Carter was unaware that kosher chicken could not be imported and that importing kosher lamb was very expensive.  Carter owns shares in two companies that export meat to Muslim countries.  New Zealand requires stunning of halal slaughtered animals, a practice to which some Muslims object. Officials of Silver Fern Farms, one of the  companies in which Carter holds shares, told Carter that their trade with Muslim countries would be adversely affected if the country allowed kosher slaughter to proceed without stunning, but required it for halal meat.

Hindu Group Seeks To Reclaim Religious Roots of Yoga

Today's New York Times carries a front page article on the efforts by the Hindu American Foundation to acquaint Americans with the Hindu religious foundations of yoga.  Its "Take Back Yoga" campaign has created a controversy over whether the roots of yoga pre-date Hinduism. Dr. Aseem Shulka, co-founder of the Hindu American Foundation, says that Hinduism has become a victim of "overt intellectual property theft" through yoga teachers who have commercialized the religion's spiritual wealth.

Recent Prisoner Free Exercise Cases

In Luke v. Willliams, 2010 U.S. Dist. LEXIS 123752 (D OR, Nov. 18, 2010), an Oregon federal district court dismissed an Intensive Management Unit prisoner's claims that correctional facility employees infringed his free exercise, RLUIPA and equal protection rights by interfering with his ability to practice Wicca. He alleged they denied him the ability to bring religious items into the prison yard, did not have a full time Wicca volunteer and denied him books from the general population Chapel Library and items from the Internet.

In Zajrael v. Harmon, 2010 U.S. Dist. LEXIS 123829 (D AR, Nov. 22, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 123780, Nov. 10, 2010) and dismissed claims that an inmate's free exercise rights and his rights under RLUIPA were infringed when authorities confiscated from his cell religious books and study materials in excess of the number of books permitted for prisoners in administrative segregation.

In Stilton v. Albino, 2010 U.S. Dist. LEXIS 124717 (D NJ, Nov. 23, 2010), a New Jersey federal court rejected an inmate's free exercise claim that for 12 days he was denied access to his personal property, including his Bible.

Rabbi Hoping To Be First Jew Elected To Uganda's Parliament

The London Jewish Chronicle reported yesterday that in Uganda, a 41-year old rabbi hopes to become the first Jewish member of Uganda's parliament. Rabbi Gershom Sizomu, who grew up in the country under Idi Amin, hopes to win a seat in February's elections to represent the area of Bungonkho North in the city of Mbale.  Sizomu is a member of the Abayudaya Jewish community founded by a military chieftain 91 years ago. Sizomu's campaign is centered on raising medical standards.  His campaign manager is a Muslim.  Some supporters of Sizomu's Muslim opponent are using religion as an issue-- urging residents to vote for a fellow-Muslim and raising fears that Sizomu could convert many Muslims to Judaism.

British Teen Charged After Facebook Posting of Her Burning Qur'an

The London Guardian yesterday reported that a 15-year old girl from a town near Birmingham has been arrested on suspicion of inciting religious hatred after she posted on Facebook a video of her burning an English language translation of the Qur'an. She has been released on bail. The video has now been removed and the incident was reported to the girl's school where it took place with other students looking on.

Court Rejects Challenges By Members To Their Expulsion From Religious Organization

In Khan v. Fiji Jamaat-Ul Islam of America, (CA Ct. App., Nov. 23, 2010), a California appellate court rejected a challenge by two individuals to their expulsion from membership in a religious organization by the organization's board.  The court said:

Here, the lower court found that Fiji Jamaat’s evidence established a deliberative process that was religious in nature. Specifically, the court found that the decision to expel appellants was based on a consideration of whether appellants’ conduct was improper, unbecoming, or likely to endanger the interest of Fiji Jamaat based upon the religious beliefs of the organization. This presents an ecclesiastical question, and the court correctly refused to consider appellants’ contentions pertaining to the reasons for expulsion in greater depth. The trial court stated that Fiji Jamaat abided by the terms of the bylaws for termination of membership, provided adequate notice of the charges brought against appellants, and afforded them an opportunity to be heard.

Atheist and Catholic Groups Compete Over Holiday Displays

A press release from American Atheists issued on Tuesday describes the latest jousting over holiday displays between the Atheist group and a Catholic organization that wants nativity scenes displayed this year in all 50 state capitols:

The Catholic League for Religious and Civil Rights announced over the weekend that it was purchasing and shipping the displays along with a letter to every governor claiming that the crèches would pass constitutional muster. League President Bill Donohue added that this was in reaction to a huge American Atheists billboard going up on November 27 at the entrance to the Lincoln Tunnel. The sign depicts the Christian nativity and Star of Bethlehem, declaring "You KNOW It's a Myth!"...

"The fact that the League is paying for the crèches does not automatically make them constitutional," said [AA President David] Silverman. "The governors will also have to welcome in a variety of secular displays -- and American Atheists feels that it is appropriate that they also have the opportunity to include something from Atheists and other non-believers."..... "We are offering to send every governor a placard with a reproduction of our [Lincoln Tunnel] billboard, and letter asking for 'equal time' in the public square next to the Catholic League display." ... [This will] test the commitment of state governments to Supreme Court guidelines on the matter, and free speech.

UPDATE: UPI shows a photo of the small creche that the Catholic League has sent to each governor for display in the capitol rotunda next to its Christmas tree. The League also informed each governor that its monthly journal Catalyst has published the names of each governor's chief of staff so readers can contact them if the creche does not appear.

White House Receives Report Urging More Faith-Based Involvement In Health and Development

On Tuesday, over 80 religious leaders and Obama administration officials gathered at the White House to receive a report from the newly formed Global Initiative for Faith, Health and Development. (OFNP Press release .) An 83-member international task force prepared the report which lays out a framework for engaging faith communities in advancing the cause of health and development. (Center for Interfaith Action press release.) The report, Many Faiths, Common Action: Increasing the Impact of the Faith Sector on Health and Development, among other things, recommends increasing collaboration within the faith community and with secular actors.

On a related matter, the White House announced that next Monday, First Lady Michelle Obama will host a conference call with faith and community leaders to obtain their involvement in her Let's Move! campaign to end childhood obesity.

Facebook Helps Israeli Army Find Women Falsely Claiming Religious Military Exemption

In Israel last Monday two Knesset (Parliament) committees held hearings on the exemption from military service granted to religiously observant Jewish women under present law.  According to the Jerusalem Post, women may obtain an exemption by signing a declaration that they maintain a religious life style, including not traveling on the Sabbath and eating only kosher food.  35% of Jewish women have signed such a declaration, but the army estimates that thousands of these are false.  Army investigators have used innovative techniques to discover the women who have filed false declarations according to committee testimony from Brig.-Gen. Amir Rogovsky.  Through Facebook, IDF investigators have discovered 1000 women who have lied. Some of the women posed for Facebook photos in immodest clothing that would not be worn by Orthodox women. Another woman was shown in a Facebook photo eating at a non-kosher restaurant. Investigators also sent invitations to Friday night parties to some women and caught those responding that they would attend.

Quebec Court Permits Class Action In Clergy Sex Abuse Case

In the Canadian province of Quebec, a Superior Court judge has for the first time in Quebec approved the filing of a class action on behalf of clergy sex abuse victims. Yesterday's Montreal Gazette reports that the suit has been brought against a religious order, Congregation du Tres-Saint-Redempteur, on behalf of all students of Seminaire Saint-Alphonse, in Ste. Anne de Beaupre, who were sexually abused by priests between 1960 and 1987. At least five priests, including the school's former director were involved. The suit alleges that the priests planned among themselves which boys would be victims.

Florida County Sues Homeowners Association Charging Religious Discrimination

On Tuesday, Hillsborough County, Florida filed a federal lawsuit against the Lake St. Clair Homeowners Association in Apollo Beach charging discrimination against an Orthodox Jewish homeowner who was a member of the association.  According to today's St. Petersburg (FL) Times, the lawsuit charges that in 2005 current homeowners association president James Knott told resident Richard D. First: "Your kind of people are not welcome here."  More recently in response to a request by First to see homeowner association records, First was told by Knott that board members were available only on Friday afternoons and Saturdays-- timing that would violate First's observance of the Sabbath. Knott denies charges of discrimination, saying that "First likes to run his mouth" and has "turned ... people off."

Iranian Christian Pastor Sentenced To Death For Apostasy

According to BosNewsLife, in Iran on Tuesday the 11th Chamber of the Assize Court in Gilan province sentenced Christian pastor Yousef Nadarkhani to death by hanging for apostasy.  Nadarkhani was born a Muslim, but converted to Christianity at age 19.  He has organized a house church and evangelical meetings inviting others to convert to Christianity. He was arrested after protesting enforced reading of the Qur'an.  Under Iranian law, the defendant has 20 days from the date the written verdict is handed donw to appeal to the Supreme Court.  No one has been executed for apostasy in Iran since 1990.

President Obama Issues Thanksgiving Proclamation

On Tuesday the White House issued a Presidential Proclamation declaring today as a "National Day of Thanksgiving." The Proclamation reads in part:

Thanksgiving Day is a time each year, dating back to our founding, when we lay aside the troubles and disagreements of the day and bow our heads in humble recognition of the providence bestowed upon our Nation.... 

In confronting the challenges of our day, we must draw strength from the resolve of previous generations who faced their own struggles and take comfort in knowing a brighter day has always dawned on our great land. As we stand at the close of one year and look to the promise of the next, we lift up our hearts in gratitude to God for our many blessings, for one another, and for our Nation. This Thanksgiving Day, we remember that the freedoms and security we enjoy as Americans are protected by the brave men and women of the United States Armed Forces....

This harvest season, we are also reminded of those experiencing the pangs of hunger or the hardship of economic insecurity.

Vatican Objects To Ordination In China

As reported by CNS, yesterday the Vatican issued a statement (full text) denouncing China for ordaining Rev. Joseph Guo Jincai without consent of the Vatican. Dozens of government officials attended the Mass at which 8 current bishops participated in the ordination. Emphasizing that it had clearly communicated its objections to the ordination to Chinese authorities several times this year, the Vatican said:

in recent days, various bishops were subjected to pressures and restrictions on their freedom of movement, with the aim of forcing them to participate and confer the episcopal ordination. Such constraints, carried out by Chinese government and security authorities, constitute a grave violation of freedom of religion and conscience. The Holy See intends to carry out a detailed evaluation of what has happened, including consideration of the aspect of validity and the canonical position of the bishops involved.

7th Circuit: Baha'i Groups Not Bound By Old Trademark Injunction

In National Spiritual Assembly of Baha'is of the United States of America Under the Hereditary Guardianship, Inc. v. National Spiritual Assembly of Baha'is of the United States of America, Inc., (7th Cir., Nov. 23, 2010), the 7th Circuit Court of Appeals refused to apply a 1966 injunction in a trademark infringement case to defendant religious groups finding that they were not in sufficient privity with the original defendants to be covered by the 40-year old injunction. At issue is the use of the Baha'i name by break-away U.S. Baha'i groups.

UPDATE: The case is discussed at greater length at Baha'i Rants.

Apartments Not Covered By Historic Preservation Exemption For Religious Property

In Or Khaim Hashalom v. City of Santa Monica, (CA App., Nov. 22, 2010), a California appellate court held that an apartment complex did not qualify for the exemption from historic preservation designation granted by state law to non-commercial property owned by a religious organization.  OKH, which incorporated as a religious organization several months after acquiring the building (and after landmark designation proceedings had begun) had applied to demolish it and use the land for housing for Jewish refugees from Iran and Iraq.  The court concluded that the property has always been a commercial enterprise and so is not covered by the exemption. The court said that the exemption is limited to property used for a religious institution's mission before the religious institution seeks to invoke the exemption.

OSCE Releases 2009 Hate Crimes Report

Yesterday the Organization for Security and Cooperation in Europe released its 2009 report on "Hate Crimes in the OSCE Region-- Incidents and Responses."  A release from Human Rights First called hate crimes a "serious challenge" for governments in the region.  Separate chapters in the report cover racist and xenophobic crimes and incidents; actions against Roma and Sinti; anti-Semitism; anti-Muslim actions; incidents against Christianity and other religions; and crimes against LGBT individuals and against the disabled.

No Private Action Under Federal Statute Barring Discrimination Against Health Care Workers

In Cenzon-DeCarlo v. Mount Sinai Hospital, (2d Cir., Nov. 23, 2010), the U.S. Second Circuit Court of Appeals held that there is no private right of action for either damages or inunctive relief under the federal statute barring discrimination in employment against health care workers who refuse to participate in sterilization or abortion procedures.  42 USC Sec. 300a-7(c) (the Church Amendment) bars recipients of federal funds from refusing to hire or promote, or from firing, employees with conscientious objections to such participation. Plaintiff, an operating room nurse, claimed she was coerced by her supervisors into participating in a late-term abortion procedure. The court concluded that the language of the statute does not indicate a Congressional intent to create a private remedy. [Thanks to Steven H. Sholk for the lead.]

Court Rejects Free Exercise Defense To Khat Possession Conviction

In State of Minnesota v. Ahmed, (MN Ct. App., Nov. 23, 2010), a Minnesota appellate court upheld defendants' convictions for possession of khat.  Finding that khat is a controlled substance, the court rejected defendants' free exercise defense.  It held that the U.S. Supreme Court's 2006 O'Centro decision is distinguishable.  It involved an interpretation of the federal Religious Freedom Restoration Act, and that statute is inapplicable to the states. Yesterday's Minneapolis Star Tribune reports on the decision.

TRO On Oklahoma Anti-Shariah Amendment Extended For A Week

After a two hour hearing yesterday, an Oklahoma federal district judge extended for another week the previously issued temporary restraining order (see prior posting) barring Oklahoma election officials from certifying the ballot results on a state constitutional amendment that precludes courts from considering Shariah law or international law in reaching decisions. The Oklahoman reports that plaintiffs are seeking a temporary injunction to prevent State Question 755 from taking effect, arguing that it targets Islam. The state argued that the purpose of the amendment is to prevent courts from using precepts of other nations or cultures in their decisions.

Montana High Court OK's Valedictorian's Religious References

In a 6-1 decision last week, the Montana Supreme Court held that school officials violated the free speech rights of a graduating senior when it censored on the basis of viewpoint her proposed valedictory remarks.  In Griffith v. Butte School District No. 1, (MT Sup. Ct., Nov. 19, 2010), school officials objected to the religious references in following passage in the prepared remarks of one of the co-valedictorians:

I learned to persevere these past four years, even through failure orndiscouragement, when I had to stand for my convictions. I can say that my regrets are few and far between. I didn’t let fear keep me from sharing Christ and His joy with those around me. I learned to impart hope, to encourage people to treat each day as a gift. I learned not to be known for my grades or for what I did during school, but for being committed to my faith and morals and being someone who lived with a purpose from God with a passionate love for Him.

The majority rejected any Establishment Clause conerns about the propoed seech, saying:

We find it unreasonable for the School District to conclude that Griffith’s cursory references to her personal religious beliefs could be viewed by those in attendance at the BHS graduation ceremony as a religious endorsement by the School District.

Justice Leaphart dissenting argued that the student's proposed remarks created Establishmnet Clause concerns:

Attendance at high school graduation is compulsory. The speakers chosen by the school clearly have a “captive” audience. The student body of a public school is presumably very diverse with a mix of Christians, Jews, Muslims, atheists, and agnostics, many of whom would resent being required to attend a ceremony in which Christ and His Joy was being shared with those present in the captive audience.

The Missolian reports on the decision.

New Center Will Study Marriage, Religion and Public Policy

According to today's Catholic Culture, Ave Maria law school has announced the creation of a new Center for Research on Marriage, Religion and Public Policy. Yesterday's National Catholic Register carried an interview with the Center's director, Maggie Gallagher. Emphasizing the importance of  "fighting for marriage and family in the political and legal arenas," Gallagher said:

Truth is truth. If marriage is the union of a husband and wife, because children need a mother and father, we can’t abandon non-Catholic children. We have an obligation in justice, as well as love, to fight against an unjust civil order that redefines marriage and its purposes.

The new Center's first conference was on "Children, Kinship, Psychological Health, and Identity Formation: The Cases of Divorce and Donor Insemination."

FBI Releases 2009 Hate Crimes Data

The FBI yesterday released its latest data on hate crimes.  Hate Crimes Statistics 2009 reports that there were 6,604 criminal incidents involving 7,789 bias-motivated offenses.  This is a drop of 15% from the year before and the lowest number reported in at least a decade.  However there are signifcant variances in the number of agencies participating and reporting from year to year. (Huffington Post.)  Of the 6,598 single-bias incidents in the latest report, 19.7% were motivated by religious bias.  Of these 1303 incidents motivated by religious bias, 931 were anti-Jewish, 107 were anti-Islamic, 51 were anti-Catholic, 38 were anti-Protestant and 10 were anti-Atheist/ Agnostic. (Table 1.) In 2008, there were 1606 hate crimes motivated by religious bias reported. (See prior posting.)

An ADL release welcoming the drop in hate crimes expressed disappointment that more than 60 cities with over 100,000 population did not submit data.

Egyptian Animal Rights Activists Wants Reform of Eid al-Adha Slaughter

A New York Times article Monday chronicles the efforts of Egyptian animal-rights proponent Amina Abaza to encourage more humane slaughtering methods on Eid al-Adha. The Muslim holiday, celebrated last week, commemorates the story of Abraham who was permitted to sacrifice a ram instead of his son. Traditionally Muslims slaughter a sheep, cow or camel, and divide the meat between themselves, relatives and the poor. In working class neighborhoods in Egypt, crowds watch butchers wrestle animals to the ground and slit their throats. Little boys play with the blood and teenagers help remove the entrails.  Activists say the butchers fail to abide by Islam's own requirements that the animal should not be mistreated and should not hear or see other animals being killed.

No RLUIPA Violations In Processing Use Permit Applications By Mosque

In Islamic Cultural Center of Monticello, Inc. v. Village of Monticello, (NY Sup. Ct., Nov. 17, 2010), a New York trial court found no RLUIPA violations in a village's handling of applications for a special use permit and a certificate of occupancy for a mosque and related parking lot. The court noted: "the mosque has been allowed to operate in the building for years without a special use permit or approved parking while the required municipal approval was being processed; and the parking lot across the street has also been used and continues to be used illegally..... [T]here certainly in not evidence of religious discrimination; rather, the record speaks to a community and local government endeavoring to accommodate the need for a house of worship for the local Islamic community."

Many Charter Schools In Texas Have Religious Connections

Today's Dallas (TX) Morning News reports on the blurring of church-state lines as over 20% of the state's publicly-funded charter schools have religious ties. Religious groups can set up separate non-profits to run charter schools. According to the paper:

Dozens of Texas charter school leaders or board members hold prominent positions in the church, where the schooling sometimes takes place. Parochial schools reinvent themselves as charters, often with little guidance on running a public school. And the mission of the school itself typically stems from the values of the religious group.

While most of the religiously affiliated charter schools are connected to Christian groups, in Houston one is operated by a Turkish Muslim group.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, An Overview of Tax Issues for Religious Congregations, (The Practical Tax Lawyer, Vol. 55, Fall 2010).
• Jeremy J. Patrick, Jeremy J., The Curious Persistence of Blasphemy, (November 17, 2010).
• Perry Dane, The Natural Law Challenge to Choice of Law, (The Role of Ethics In International Law, Donald Earl Childress III, ed., Cambridge University Press, 2010).
• Patrick McKinley Brennan , Lawmaking, Administration, and Traces of Civic Republicanism: Thought’s on Jean Porter’s Ministers of the Law, (Villanova Law/Public Policy Research Paper No. 2010-22, Nov. 18, 2010).
• Barbara P. Billauer, Message from Mt. Moriah: The Non-Permutable Law of War and Conflict, (October 18, 2010).
• Joan MacLeod Heminway, Martha Stewart and the Forbidden Fruit: A New Story of Eve, (Michigan State Law Review, Vol. 2009, p. 1017, Winter 2009).
• Tobias Lock, Religious Symbols in Germany, (November 15, 2010).
• Rahul Shrivastava, Protective Discrimination and Tribal Welfare in India, (November 19, 2010).

From SmartCILP:

• John Alan Cohan, Honor Killings and the Cultural Defense, 40 California Western International Law Journal 177-252 (2010).
• Liaquat Ali Khan, Protection of Languages and Self Expression under Islamic Law, 19 Journal of Transnational Law & Policy 61-122 (2009).
• Bruce Ledewitz, The New New Secularism and the End of the Law of Separation of Church and State, 28 Buffalo Public Interest Law Journal 1-30 (2009-2010).
• Article, Reply & Response. In Celebration of Steven Shiffrin's The Religious Left and Church-State Relations. Article by Kent Greenawalt; reply by Bernadette Mayler; response by Steven H. Shiffrin. 19 Cornell Journal of Law & Public Policy 741-772 (2010).
• Symposium. Twenty Year Anniversary of Employment Division v. Smith: Reassessing the Free Exercise Clause and the Intersection Between Religion and the Law. Introduction by Marci A. Hamilton; articles by Richard F. Duncan, Mark S. Kende, Zackeree S. Kelin, Kimberly Younce Schooley, David S. Day, Matthew L.M. Fletcher and student Jessica L. Fjerstad. 55 South Dakota Law Review 385-562 (2010).

Canadian Court Will Hear Challenge To Polygamy Law Today

Today the Supreme Court of the Canadian province of British Columbia will begin to hear arguments on the validity Criminal Code Sec. 293, Canada's laws banning polygamy.  The Toronto Globe & Mail reports that over 30 witnesses are expected to testify, including members of the polygamous FLDS community of Bountiful. A number of organizations, on both sides of the issue, have been granted "interested person" status to make submissions to the court. The province's attorney general decided to bring the reference case to ask the court to clarify the validity of the polygamy ban under Canada's Charter of Rights and Freedoms after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

Does New Atlanta Public School Official Have Too Religious An Agenda?

Atlanta (GA) Journal Constitution reporter Maureen Downey yesterday questioned the focus the newly selected chief of staff for the Georgia Department of Education will bring to his job.  Her concerns are based on blog postings by the new pick, Joel Thorton.  Among the views Thorton has posted online on his blog: "We cannot offer any type of spiritual help to struggling youth because we have no place for God in our schools." In a long blog post on home schooling, Thorton lamented hostility to Christianity found in many public school systems.

Religious Leaders Express Doubt About New Governor's Call For Faith-Based Social Services To Fill Budget Gaps

Today's Greenville (SC) News reports that a number of South Carolina religious leaders question whether Gov.-elect Nikki Haley's call for a coalition of faith-based organizations to fill the gaps in social services and educational programs that have been created by state budget shortfalls. Many congregations are also financially stretched, some worry about church-state questions, and others say that it is unfair to ask the portion of the population that are church members to pay for services that should be borne by all the taxpayers.

Company Settles With EEOC In Case Charging Religious Harassment of Jewish Employees

The EEOC announced last week that One Communications Corp. has settled a lawsuit filed against it by the EEOC charging religious harassment of three Jewish employees, one of whom resigned as a result.  The EEOC's lawsuit filed in a Pennsylvania federal district court charged that the company's vice president of sales regularly subjected the three account executives to harassment, including anti-Semitic remarks, and that the company failed to take effective remedial action. In the settlement, the company agreed to pay $66,000 in damages and agreed to a 5-year consent decree banning religious harassment or retaliation. The company will also provide training to all managers and employees at the Conshohocken, Pennsylvania facility where the violations occurred, and will post a remedial notice.

Lawsuit Filed Against San Antonio Archdiocese Alleging Cover-Up of Priest Abuse

The San Antonio (TX) Express News reports that on Thursday a lawsuit was filed against the Catholic Archdiocese of San Antonio accusing it of covering up the repeated sexual abuse of a 12-year old boy by a priest. The abuse of the victim, an altar boy in the Floresville Parish school, is alleged to have occurred in 1976-77 by priest Louis White who was associate pastor of Sacred Heart Church. White was removed from the priesthood in 1989. The suit also alleges that sometime during the past 18 months, a priest at Mass in the Floresville parish chastised anyone who planned to come forward ab out being abused. He suggested that instead they make penance for themselves and the abusing priest.

Recent Prisoner Free Exercise Cases

In Riggins v. Clarke, (9th Cir., Nov. 18, 2010), the 9th Circuit upheld a prison policy that required an inmate's committed name be used first on incoming and outgoing mail before any other official or religious name. It also rejected plaintiff's claim that his rights were violated by the refusal to allow him to buy prayer oils.

In Bonner v. Randle, 2010 U.S. Dist. Lexis 120717 (CD IL, Nov. 15, 2010), an Illinois federal district court  held that a Muslim inmate had adequately alleged a violation of the Establishment Clause.  Plaintiff claimed that his regularly scheduled Narcotics Anonymous class was combined with Christian religious services and he was required to attend and submit a written summary of what he learned from the Christian speaker.

In Taylor v. Grannis, 2010 U.S. Dist. LEXIS 121103 (ND CA, Oct. 28, 2010), a California federal district court dismissed on res judicata grounds an inmate's complaint that he was not permitted to use tobacco for his "Wheel of Love" religious ceremony.

In Ashby v. Sherman, 2010 U.S. Dist. LEXIS 120735 (WD WA, Nov. 12, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist LEXIS 120742, Oct. 1, 2010) and dismissed an inmate's complaint that he was not allowed to attend the Eid ul-Fitr feast and that an exclusive Nation of Islam Eid feast was not held.

In Burnight v. Sisto, 2010 U.S. Dist. LEXIS 120975 (ED CA, Nov. 15, 2010), a California federal magistrate judge concluded that nothing in the record of petitioner's parole hearing indicated that he was required to attend the religiously-based Alcoholics Anonymous program even though the parole board discussed his participation in it. Nor did petitioner ever indicate to prison officials that his Wicca religion conflicted with AA.

In Searles v. Werholtz, 2010 U.S. Dist. LEXIS 121339 (D KS, Nov. 15, 2010), a Kansas federal district court dismissed an inmate's complaint that he was denied a kosher diet because defendants who were employees of Aramark food service were never served with process.

Pope Quoted In New Book Suggesting Use of Condoms To Prevent HIV Is Permissible In Some Cases

Associated Press and the Guardian today reports on excerpts from a long interview with Pope Benedict XVI taken from a new book to be released Tuesday.  The excerpts published  yesterday by the Vatican newspaper L'Osservatore Romano are from the book Light of the World: The Pope, the Church, and the Signs of the Times by German journalist Peter Seewald.  The remarks suggest a modification of the Church's stance on the use of condoms to prevent AIDS.  Previously some Church officials had said that abstinence and fidelity are the only way to stop the spread of HIV, while the Pope had merely said that condom use exacerbates the AIDS crisis. Now the Pope is quoted as saying that in some cases, such as for male prostitutes, the use of condoms "in the intention of reducing the risk of infection" could represent "a first step in the direction of moralisation, a first assumption or responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants." Theologians suggest that the Pope may be applying the notion that an evil act can be tolerated where it is performed for an intended good, or that where the intended purpose is to protect from disease rather than trying to block pregnancy use is permissible.

Appeals Court Reverses Decision On Validity of Replacing Episcopal Bishop

In Schofield v. Superior Court of Fresno County, (CA App., Nov. 18, 2010), a California appellate court held that in a lawsuit brought by the Episcopal Church to establish its title to property of the break-away San Joaquin Diocese, the trial court must apply neutral principles of law to determine ownership of the property.  It held that the trial court had erred in preliminarily deciding who is the rightful bishop of the Diocese of San Joaquin. The trial court had approached the issue by deciding that the Diocese's attempt to withdraw from the national church was ineffective and that therefore the national church's replacement of the incumbent bishop John-David Schofield by Jerry A. Lamb as provisional bishop was valid.  The Court of Appeals held instead that the validity of the removal and appointment of a bishop is a matter of ecclesiastical law as to which the determination of the Episcopal Church controls. So the issue remaining for the trial court is the validity of property transfers allegedly made by Schofield before he was replaced. That is to be decided by reference to "general California statutory and common law principles governing transfer of title by the legal title holder, the law of trusts, including the establishment of trusts and transfers by a trustee in contravention of a trust upon the property (if a trust is established by the evidence), and corporations law...." (See prior related posting.) Anglican Curmudgeon discusses the decision and the controversy over its implications at length.

Maryland County Concedes, Settling RLUIPA Land Use Lawsuit In Mid-Trial

Both The Capital and the Maryland Daily Record report that on Thursday in the midst of a RLUIPA trial, Anne Arundel County, Maryland signed a settlement in the lawsuit brought against it by Riverdale Baptist Church which sought to build a school on 57 acres of land it owns.  Initially, in 2004, county planners approved the plans, but after objections by neighbors the County Council passed two new zoning restrictions that effectively prevented building of the school. The county attorney admitted in court that the county had targeted the church with its new legislation and had timed the legislation so it would not affect two other private schools.  The settlement-- agreed to on the 12th day of trial just before the county's last witness took the stand-- will allow the Riverdale Baptist to build its school and also awards $3.25 million in damages to the church. The complaint asked for $8.7 million.  In 2008 the parties negotiated a settlement that would have cost the county only $300,000, but at that time the County Council refused to approve its terms. [Thanks to Roman P. Storzer for the lead.]

County Takes Control of Holiday Displays

The Chester County Daily Local reports that yesterday the Chester County, Pennsylvania commissioners voted 2-1 to have the county place its own holiday displays at the Historic Courthouse, eliminating the rivalry of past years between those erecting Christian and Jewish displays and a secular group that has put up a Tree of Knowledge. Tension between the Pastors Network and the Freethought Society were particularly intense last year as the Tree of Knowledge displayed book titles as ornaments and included titles such as "The God Delusion." The new resolution calls for the county to put up displays to celebrate the traditions of the holidays, to support the troops, celebrate peace and promote commerce. The resolution says the displays will comply with constitutional limitations. A member of the Freethought Society which opposed the new arrangement told commissioners: "This is about you deciding whether atheists are people, too...."

9th Circuit Will Permit Live C-SPAN Broadcast of Arguments In Prop 8 Appeal

According to today's San Francisco Chronicle, the U.S. 9th Circuit Court of Appeals has decided that C-SPAN  will be permitted to broadcast live the appeals court arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of California's Proposition 8 that bars same-sex marriage. The two-hour arguments scheduled for 10:00 a.m. on December 6 will be split between arguments on standing and arguments on the constitutionality of Proposition 8. (9th Circuit order on oral arguments.) Attempts to allow limited televising of the federal district court trial in the case were ultimately prevented by a U.S. Supreme Court decision finding that the district court followed improper procedures in adopting its rule permitting broadcasting. (See prior posting.)

South Dakota High Court Rejects Jurisdiction Over Hutterite Colony Dispute; Lower Court Dissolves Colony

In Hutterville Hutterian Brethren, Inc. v. Waldner, (SD Sup. Ct., Nov. 17, 2010), the South Dakota Supreme Court held that it lacks jurisdiction over a dispute between two factions of the Hutterian Church, both claiming control of the non-profit corporation that controls the Hutterville Colony.  The dispute grew out of a 1992 schism in the church, after which each faction tried to obtain control of the corporate governance of Hutterville. The court held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite by the "true" church elders.  The First Amendment shields such issues from scrutiny by civil courts. Religious issues pervade the dispute, and corporate governance cannot be decided without extensive inquiry into religious doctrines and beliefs.

Meanwhile the state circuit court judge whose opinion was affirmed by the Supreme Court has now held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members. That decision was handed down one day before release of the Supreme Court's opinion. Reporting on the decision, KELO Land Television quotes one of the attorneys involved as saying that the dissolution decision will probably not be affected by the Supreme Court's holding. Colony members still have the option of  reconciling and continuing to live communally.

EU Official Says Church Schools Cannot Refuse To Hire Gays and Lesbians

In a September, Elzbieta Radziszewska, a senior Polish official who deals with anti-discrimination issues, told a Catholic newspaper that church-owned schools and colleges could refuse to hire homosexuals and could fire those already employed where that is consistent with their church's values and principles.  Yesterday's Christian Century reports that European Union Justice Commissioner Viviane Reding disagrees, saying that sexual orientation cannot be a genuine occupational requirement for a teacher. On October 26, in response to parliamentary questions, Redding issued a written statement saying that while under EU's directive on equal treatment in employment religious organizations are allowed to take a person's religion or belief into account where necessary, that exception does not justify discrimination on ground other than religion or belief. Radziszewska responded that the EU directive allows religious organizations to insist that employees be loyal to the organization's ethics, and those who are not need not be employed in institutions where these are essential job qualifications.

Parents Object To Planned School Play "Santa Goes Green"

In DuBois, Pennsylvania, some parents have raised a new kind of objection to a planned school Christmas play. The Progress reported yesterday that four residents have asked the DuBois School Board to reconsider the choice of the play "Santa Goes Green" that is to be produced by 4th and 5th graders on Dec. 8-10. The play was written by author and composer John Jacobson, who was also an unsuccessful candidate for the U.S. House of Representatives from California's 2nd District in this month's elections.  Parent Patty Fisch says the play contains a hidden political and environmental agenda that she does not want her child exposed to. She says that "several parts in the play drill into kid's heads the world's going to end if they don't go green." Another parent argued that environmentalism is a matter of personal belief and so the play could be seen as advancing religion.

Israeli Jewish Anti-Missionary Group Sues State-Run Radio Stations Over Ad Refusal

Yad L'Achim is an Israeli non-profit group, one of whose goals is to counter Christian missionary activity aimed at Jews in Israel. Arutz Sheva reported on Wednesday that the organization has filed suit against two Israeli state-operated radio stations which have refused to run Yad L'Achim's ads. The organization wants to run the ads prior to music festivals and major concerts at which Christian missionaries reaching out to young people are particularly active. Both the Israel Broadcasting Authority and Army Radio have refused. Army Radio says that it cannot run ads that "may damage the religious sentiments of different groups."  In a letter to the court, Yad L'Achim said:

a public service announcement or paid ad warning Jews not to fall prey to missionaries would not violate the religious feelings of anyone in Israel. It is the radio stations' social and legal obligation to broadcast the ads. There is, in fact, no more suitable message for Jews in a Jewish state than to tell them to remain strong in their identities and reject anti-Semitic missionary activity.

Yad L'Achim attorneys threaten to go beyond their present suit which demands the ads be run either as a public service announcement or a paid ad. They say they if the stations do not change their stance, Yad L'Achim will file a discrimination claim with the High Court as well.

9th Circuit: Christian Legal Society Failed To Preserve Pretext Argument For Review

Last June in Christian Legal Society v. Martinez, the U.S. Supreme Court upheld Hastings Law School's policy of only recognizing student groups that are open to all students. The policy was challenged by CLS that required its members and officers to sign a statement of faith. (See prior posting.)  However the Supreme Court remanded the case to the 9th Circuit, saying that, "if and to the extent it is preserved," the Circuit Court could still consider CLS's argument that Hastings applied its all-comers rule in a biased fashion, using it as a pretext for religious discrimination. In Christian Legal Society of University of California Hastings v. Wu, (9th Cir., Nov.17, 2010), the 9th Circuit held on remand that plaintiffs had failed to preserve this selective application argument for appeal. The Washington Post reports on the decision. [Thanks to Religion News Service for the lead.]

State Department Issues 2010 Report On International Religious Freedom

Yesterday the U.S. State Department released its 2010 Report on International Religious Freedom. The annual report to Congress is mandated by Section 102 of the International Religious Freedom Act of 1998. In releasing the report, Secretary of State Hillary Clinton (full text) said:

Religious freedom is under threat from authoritarian regimes that abuse their own citizens. It is under threat from violent extremist groups that exploit and inflame sectarian tensions. It is under threat from the quiet but persistent harm caused by intolerance and mistrust which can leave minority religious groups vulnerable and marginalized.... [W]ith this report as our guide, the United States will continue to advance religious freedom around the world as a core element of U.S. diplomacy.

Assistant Secretary Michael H. Posner then answered reporters questions. (Full text of briefing.)

The report surveys the status of religious freedom separately for every country around the world (except for the U.S. itself). The Executive Summary highlights 27 countries in which there have been noteworthy developments, either positive or negative. It reports on U.S. efforts to promote religious freedom in the 8 countries the State Department has formally designated as "Countries of Particular Concern." (See prior posting.) However the Report did not update these designations. Secretary Posner, though, said that a new list will be forthcoming "in the next couple of months."

The Executive Summary reiterates U.S. opposition to continuing efforts by Muslim countries to obtain a U.N. resolution on "defamation of religions." Citing China and Uzbekistan, it also condemns "the growing trend of forcibly returning individuals from another country to face persecution or abuse in their home country in retribution for their religious activism." [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

In Battle For Texas House Speaker, Religion Becomes An Issue

In the Texas state legislature, Joe Straus, the current speaker of the House of Representatives, is being challenged by two other Republicans who are more conservative. Yesterday's Dallas Morning News reports that  supporters of challengers Rep. Warren Chisum and Rep. Ken Paxton are stressing their candidates' Christian values and in e-mails are alluding to the fact that Straus is Jewish. A Houston Chronicle opinion piece carries a detailed examination of what it calls the "religious campaign against Straus."  Some of the opposition pieces claim Straus favors abortion and points out that his rabbi is on the board of Planned Parenthood. A Dallas Morning News report analyzes the claim that Straus received a 100% National Abortion Rights League rating for 2007.  It reports:

In 2007, Straus voted 100 percent of the time with NARAL Pro-Choice Texas. However, he only voted on one of nine votes the group considered crucial that session. Straus voted "aye" on an unsuccessful amendment to the state budget that would have shifted to child-abuse prevention efforts $5 million previously allotted to "pregnancy crisis centers," which advise women and girls about alternatives to abortions.

The ADL yesterday issued a release calling appeals based on a candidate's religion "offensive and inappropriate."

Russia's Lower House Approves Bill Allowing Orthodox Church To Reclaim Nationalized Property

Reuters reports that yesterday the State Duma, the lower house of Russia's Parliament, adopted a bill authorizing the Russian Orthodox Church to reclaim up to 17,000 building and churches nationalized after the 1917 Bolshevik revolution. Under the bill, the Church cannot reclaim museum pieces or public buildings. The bill easily passed on its second and main reading in the lower house. It must still pass a perfunctory third reading before going to the upper house (the Federation Council) for approval and then being signed into law by the president. (Background on legislative process).

Ponzi Scheme Targets Investors In Shariah-Compliant Financial Products

A Department of Justice press release yesterday unveiled an indictment against three owners of a bankrupt Chicago real estate development firm charging that they ran a Ponzi scheme aimed at investors seeking Shariah-compliant investments. The indictment alleges that two of the owners of Sunrise Equities, Inc. misrepresented that an investment in the company was Shariah compliant, and promised returns of between 15% and 30%.  Hundreds of Muslims in the Chicago area invested, and collectively they lost some $30 million in the fraud. Sunrise was not generating any profits from real estate development and prior investors could be paid only out of funds later invested by others. The two defendants charged in the affinity-group fraud have now fled the country.

New Survey Identifies Religious Concerns For 2012 Election

The Public Religion Research Institute this week released a report on its  2010 Post-Election American Values Survey. The report titled Old Alignments, Emerging Fault Lines: Religion in the 2010 Election and Beyond,  reports on three findings that may have importance for the 2012 elections:  (1) only 4 in 10 Americans believe that President Obama has religious beliefs similar to their own; (2) 49% of Americans believe that the values of Islam are compatible with American values; and (3) 58% agree that God has granted America a special role in human history. ABP yesterday reported on the survey.

Court Refuses To Stop Murfreesboro Mosque

According to NPR, a Tennessee Chancery Court judge yesterday refused to issue a temporary restraining order to stop construction of an Islamic Center in Murfreesboro (TN). The formal issue in the trial was whether Rutherford County planning officials violated the state's open meeting law when they approved the site plan for the Center. (See prior posting.) However the trial drew national attention as plaintiffs argued that Islam should be classified as a political movement, not a religion. (See prior posting.) After seven days of testimony since late September, Chancellor Robert Corlew heard closing arguments yesterday (WRCB TV) and then issued his ruling. While expressing some concern about the notice requirements, Corlew ruled that plaintiffs had not shown the county acted illegally, arbitrarily or capriciously in approving the site plan.

Senate Hearing Held On Nomination of Ambassador at Large for International Religious Freedom

Religion News Service reports that yesterday the Senate Foreign Relations Committee held a hearing on the nomination of Suzan D. Johnson Cook to be Ambassador at Large for International Religious Freedom. In her prepared testimony (full text) Cook outlined some of her relevant experience. Cook retired last year as pastor of New York's Bronx Christian Fellowship Church.  Religious freedom advocates have been concerned that the religious freedom ambassador's post has been unfilled for so long. Some, however, question Cook's lack of foreign policy experience.

Executive Order Adopts New Criteria For Organizations Receiving Faith-Based Grants

President Obama today signed an executive order (full text) making changes in the operations of the White House Office of Faith-based and Neighborhood Partnerships.  As reported in a press release from the Baptist Joint Committee, the order implements many of the recommendations made in February by a task force on reform of the faith-based office. (See prior posting).  However the Executive Order does not implement a split recommendation that houses of worship use separately incorporated affiliates to receive federal grant funds. (The recommendations were published as part of a larger report last March. See prior posting.) Today's Executive Order, titled Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations, includes the following directives:

(c)  No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) ... [O]rganizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e)  The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause ... and must monitor and enforce standards ... in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f)  Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance ..., separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.

(g) ...  [A] faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance ... to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization)....  [Organizations] may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

 (h)  ... If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider....

The Executive Order also sets up a Working Group to draft a set of model regulations and guidance documents for adoption by federal agencies involved in distributing funds.

Illinois Village Sued For Refusal To Accommodate Jehovah's Witness Employee

A former Oak Park, Illinois employee on Friday filed a lawsuit against the village claiming that it wrongfully refused to accommodate her religious beliefs.  The TribLocal and the Pioneer Press report that Jehovah's Witness adherent Shawnya Robinson originally worked in Oak Park's community relations department, but was transferred the clerk's office when her original position was eliminated for budgetary reasons. Robinson had religious objections to registering domestic partnerships. She also objected to being involved in voter registration, interpreting her church's teaching of political neutrality as preventing her from being involved in any way in the voting process. Although Robinson was originally told that it would not be a problem to accommodate her religious beliefs, eight days after she began her new job she was fired because her supervisor became concerned about office morale problems that would be caused by Robinson's being exempted from some duties. The Illinois Department of Human Rights in September dismissed similar charges filed with it by Robinson.

Court Rejects Bivens Claim For Religious Discrimination By CIA

Ciralsky v. Central Intelligence Agency, 2010 U.S. Dist. LEXIS 120617 (ED VA, Nov. 15, 2010), is a suit originally filed ten years ago by a former CIA employee challenging the revocation of his security clearance and his resulting termination from his position as an attorney with the CIA.  Plaintiff Adam Ciralsky claims that these actions were taken because he is Jewish and was viewed as a supporter of Israel. Some of plaintiff's claims have already been adjudicated or are still pending in the district court for the District of Columbia. The claims involved in this opinion are primarily Bivens claims for violations of various constitutional provisions. Among those are claims that defendants violated the free exercise clause and the equal protection component of the 5th Amendment's due process clause. The court dismissed plaintiff's claims on various grounds, including lack of subject matter jurisdiction. However it also discussed the merits of various claims, including those under the 1st and 5th Amendment:

Ciralsky has already challenged the revocation of his security clearance under Title VII in the District of Columbia, which dismissed that claim; he cannot use a Bivens action to receive a second chance at his failed Title VII claim.

Indeed, allowing this claim would require this Court to broaden the scope of Bivens, which courts are reluctant to do. Bivens creates an implied right of action for damages against federal officials who violate specific constitutional rights.... Ciralsky has not cited any precedent that creates a Bivens action for free exercise or equal protection claims.

Even if Ciralsky could bring such a Bivens action, he does not allege facts that make out a constitutional violation. Ciralsky alleges that the CIA revoked his security clearance because officials saw him as overly sympathetic to Israel. If true, the CIA's actions were within its broad discretion for granting and denying access to national security information.

USCIRF Vice-Chair Criticizes Russian Laws on Extremism

Elizabeth Prodromou, vice chair of the U.S. Commission on International Religious Freedom, spoke Sunday at a conference in Brussels on Religious Freedom in Russia (full text or remarks). She said in part:

Russia faces legitimate, serious threats from groups which advocate or perpetrate violence in the name of religion. This is a major security concern, not just in Russia, but in other nations. There is a problem, however, with Russia's approach to the challenge.  It defines extremism in such a way that religious groups that neither practice nor preach violence fall under that category.  Moreover, Russian authorities apply anti-extremist laws in an overly broad and arbitrary manner.  The result is a repeated and heavy-handed use of the law against religious adherents who pose no credible threat to security, and whose only "crime" is a failure to conform to mainstream ideas and beliefs.

USCIRF issued a press release on the talk.

British Tribunal Rejects Religious Discrimination Claim By Adoption Panel Member

In Britain, an employment tribunal in Leicester has rejected religious discrimination charges brought by a Christian pediatrician who was dismissed from her position on a Northamptonshire County Council adoption panel when she asked to abstain from voting in cases where same-sex parents were seeking to adopt. Brighouse Echo reports today that the employment judge concluded Dr. Sheila Matthews was treated no differently than any other panel member who might request to abstain from voting for any reason would have been.

Surprise Bishops' Conference Election Results Show Move To The Right

New York Archbishop Timothy Dolan yesterday was elected president of the United States Conference of Catholic Bishops.  Christian Century reports that Dolan's choice was a surprise.  Usually the sitting vice president-- who was Bishop Gerald Kicanas or Tuscon-- is elected president. However Kicanas had been criticized by sex abuse victims for failing to stop the ordination of a priest who was later convicted of sex offenses.  Also conservative Catholics criticized Kicanas as weak on social issues.  In the third round of voting, Dolan defeated Kicanas by a vote of  128-111. Archbishop Joseph Kurtz of Louisville was elected vice president, defeating Denver Archbishop Charles Chaput.  Observers say the elections foreshadow a sharp move to the right by the bishops' conference and suggest that the bishops will be leaders in the culture wars.

TSA Says Passengers With Religious Objections To Both Body-Scan and Pat-Down Cannot Board

John Pistole, head of the Transportation Security Administration told the Senate Homeland Security Committee yesterday that airline passengers who refuse both a full body scan and a pat down search will not be allowed to board a plane, even if the refusal is for religious reasons. AP reports that Pistole made the statement at hearing in response to a question by Nevada Sen. John Ensign.

President Sends Eid Greetings And Wishes Hajj Pilgrims Well

In Saudi Arabia, the Hajj is under way as yesterday pilgrims climbed Mount Arafat as part of the five days of rituals that trace the steps of the Prophet Muhammad (AP). Today marks the beginning of Eid al-Adha, the Festival of the Sacrifice that commemorates Abraham's willingness to sacrifice his son. (Washington Post). Yesterday the White House issued this statement from President Obama sending Eid greetings:

Michelle and I extend our greetings for a happy Eid-ul-Adha to Muslims worldwide and wish safe travels to those performing Hajj.  This year, nearly three million pilgrims from more than 160 countries - including the United States - have gathered in Mecca and neighboring sites to perform the Hajj rituals and stand together in prayer.

On Eid, Muslims around the world will commemorate Abraham’s willingness to sacrifice his son, and distribute food to those less fortunate - a reminder of the shared values and the common roots of three of the world's major religions.

On behalf of the American people, we extend our best wishes during this Hajj season – Eid Mubarak and Hajj Mabrour.

Teacher Reprimanded For Objecting To Student's Anti-Gay Statements

In Brighton, Michigan, a high school economics teacher is challenging a one day suspension without pay that was imposed on him for violating the free speech rights of a student. According to a Canadian Press report today, on Oct. 20 teacher Jay McDowell told a student in his class to remove a belt buckle carrying the Confederate flag. This led another student to challenge McDowell on how this differed from the rainbow flag that was depicted on an anti-bullying T-shirt worn by the teacher. The student said he did not accept gays. McDowell told him he could not say that in class. The student insisted, "I don't accept gays. It's against my religion." McDowell sent him out for a one-day suspension. Another student asked if he could leave also, because he too did not accept gays.  The reprimand letter that teacher McDowell received from the school district said that he "purposefully initiated a controversial issue" by wearing the anti-bullying T-shirt.

RLUIPA Lawsuit Challenges Zoning Limits on Church Affiliated Outreach Center

A RLUIPA challenge to the zoning laws of the city of Kelso, Washington was filed Friday in federal district court in Washington by the Victory Center which welcomes young people and the needy for fellowship, meals, worship and classes. The Center is affiliated with the Kelso Church of Truth and Mountain Ministries.  The Kelso city code limits a four block downtown area to pedestrian-related uses.  Victory Center moved in last spring and put a $15,000 deposit toward purchase of the building. The Victory Center defines itself as a cultural and educational center, which is a permitted use in the area.  However, as reported by the Longview (WA) Daily News (11/9), a hearing examiner last week ruled that it is instead a "community center" which is not permitted. In the lawsuit filed Friday, Victory Center charges that the city's community development director wrongly applied the zoning law based on his personal opinion and religious prejudice. (Longview Daily News 11/15).