Wednesday, November 30, 2011

Federal Election Commission Releases Enforcement Files On Catholic Group's Robocalls

BNA's Daily Report for Executives [subscription required] reports that on Nov. 25, the Federal Election Commission released documents in an enforcement case against Informed Catholic Citizens (ICC), a 501(c)(4) non-profit organization.  The  case grew out of a complaint (full text) filed in 2008 by the Freedom From Religion Foundation. At issue were robocalls featuring a Catholic priest supporting John McCain over Barack Obama in the Presidential election because of their respective positions on abortion.  In January 2011, the FEC voted unanimously that the call involved express advocacy and there was reason to believe that ICC had violated the Federal Election Campaign Act by failing to report an independent expenditure and failing to include a disclaimer stating that ICC had paid for the call. (FEC Certification). A General Counsel's Report concluded, however, that because of the low dollar amount at issue, no further action should be taken.  A vote of the FEC in October split 3-3 on that recommendation. Instead the Commission voted 5-0 to send ICC a letter of caution and close the file. However on Oct. 21, the 3 Democratic members of the Commission released a Statement of Reasons why they preferred to seek a statutory penalty of $7500 against ICC. They contended that "while the call may have been relatively inexpensive, it appears to have reached almost 70,000 recipients."

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Dissident Hasidic Faction Loses Establishment Clause Challenge To Town's Government

In Kiryas Joel Alliance v. Village of Kiryas Joel, (SD NY, Nov. 28, 2011), a New York federal district court dismissed a series of claims brought by a dissident faction within the Village of Kiryas Joel (NY), an Orthodox Jewish Hasidic enclave.  The court describes the claims as follows:
Plaintiffs ... bring this action alleging that the Village is a "theocracy," the affairs of which are so "inherently infused by, and entangled, with religion" that its "very existence" violates the Establishment Clause....
Behind the suit is a long-standing and much-litigated dispute between two factions of the Satmar Hasidim over which faction's rabbi should be the leader of the community. The dominant faction that controls the main synagogue (Congregation Yetev) and which holds political offices in the community is led by Grand Rebbe Aron Teitelbaum. (See prior related posting.)  Plaintiffs argue that the Establishment Clause has been violated because:
the Mayor of the Village holds a leadership position in Congregation Yetev, and ... his "dual religious and governmental roles" operate to establish an official faith becuase his religious beliefs trump his governmental role with respect to his actions as Mayor...; [and] all the other Village officials are members of Congregation Yetev, and therefore are controlled by the Grand Rebbe's dictates....
The court held, however that:
the Supreme Court held in McDaniel v. Paty ... that the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy.
The court also rejected on various pleading and procedural grounds-- including res judicata and standing-- several claims by plaintiffs alleging zoning and other actions by defendants that discriminate against the dissidents and their synagogue. However one claim rejected on standing grounds was dismissed without prejudice so it could be refiled with adequate allegations. That was a claim that the town's Community Room Law that requires builders to include a community room in residential developments violates the Establishment Clause because all but one of the community rooms is used as a synagogue.

The Hudson Valley Times Herald-Record and the Mid-Hudson News both report on the decision. [Thanks to Failed Messiah for the link to the decision.]

Azerbaijan Government Agency Busy Examining Religious Literature

According to a report by News.Az yesterday, one of the main roles of Azerbaijan's State Committee for Work with Religious Organizations is the review of religious literature and texts that religious groups wish to distribute in the country. In 2010, the Committee reviewed 18.052 items and found 348 inappropriate for distribution.  In the first 9 months of this year, the Committee reviewed 15,051 items and found 47 inappropriate for distribution.

Michigan Legislature Passes Anti-Bullying Law, Dropping Religious Exemption

Michigan's state Senate yesterday passed the House version of "Matt's Safe School Law," an anti-bullying bill. (Full text of HB 4163). As reported by the Huffington Post, in doing so the Senate gave up on a much more controversial version it had passed earlier which exempted from coverage statements of sincerely held beliefs or moral convictions. That version was strongly criticized by those claiming it would create a religious exemption for bullying of gay and lesbian students. (See prior posting.) HB 4163 contains no similar exception, and requires public schools to adopt anti-bullying policies that prohibit bullying "without regard to its subject matter or motivating animus."

Courts Drawn Into Dispute Over Recall Petitions Circulated By Churches

Earlier this month, an El Paso, Texas church and its pastor filed a federal lawsuit challenging on 1st and 14th Amendment grounds the city's enforcement against churches of a provision of the Texas Election Code that bans corporations from circulating petitions to call an election. (TX Election Code Sec. 253.094). The complaint (full text) in Hoyt v. City of El Paso, Texas, (WD TX, filed 11/17/2011), was filed after the city invoked the state law provision to attempt to stop churches from circulating recall petitions aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) Alliance Defense Fund announced the filing of the lawsuit. Meanwhile, according to KTSM News and an ADF release, Monday in a state court lawsuit brought by the mayor against Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values, and other local residents, the judge refused to issue a preliminary injunction to stop the recall election. The mayor argued that signatures collected in churches on the recall petitions were invalid.

Tuesday, November 29, 2011

USCIRF Urges Clinton To Press Burma On Religious Freedom During Trip There

As reported by Voice of America, Secretary of State Hillary Rodham Clinton left yesterday for a trip to Asia that includes the first visit in over 50 years of a U.S. Secretary of State to Burma. (Background form State Dept.) The trip comes in response to progress in Burma on political reform and human rights issues. Also yesterday, the U.S. Commission on International Religious Freedom released a letter (full text) it sent to Clinton urging her to publicly raise concerns about religious freedom while in Burma, saying:
Religion drives serious human rights abuses in Burma, particularly against ethnic minorities and Buddhist monks who participated in peaceful protests in 2007. We believe improvements in religious freedom should be a critical benchmark for gauging the government of Burma’s commitment to genuine reform.
Burma has been listed by the State Department since 1999 as a "country of particular concern" because of its religious freedom violations. (See prior posting.)

Suit Challenging 10 Commandments In School May Proceed

The Roanoke Times reports that yesterday a Virginia federal district judge refused to dismiss a lawsuit challenging the posting of the Ten Commandments as part of a display in the Giles County, Virginia Public Schools. (See prior posting.) The court said there are too many unknown facts to dismiss the complaint in Doe 1 v. School Board of Giles County at this point. The court also gave the parties 14 days to work out a protective order to protect the identity of the two John Doe plaintiffs-- a student and the student's parent. (See prior posting.)

UPDATE: On Dec. 12, Judge Michael Urbanski signed a protective order to keep the plaintiffs in the case anonymous. According to the Roanoke Times, attorneys for the school board will learn the names of plaintiffs so they can determine issues such as whether the student has standing. However members of the school board will not learn the identity of plaintiffs. The order also bans any harassment, threats or intimidation of plaintiffs. [Thanks to Scott Mange for the lead.]

Security Company Settles Religious Accommodation Suit Brought By EEOC

The EEOC announced last week that the Philadelphia-based Imperial Security, Inc. has agreed to settle a lawsuit bought against it by the EEOC on behalf of a Muslim woman who was employed as a security guard, but was then told she could not wear her khimar (scarf that covers her head, neck and ears). The employee, Julie Holloway-Russell, objected and was fired. Under the settlement, Imperial Security will pay $50,000 in damages. It also agreed to a 3-year consent decree barring religious discrimination, setting up internal procedures to handle discrimination complaints, appointing an EEO officer, requiring employee training on Title VII and reporting to the EEOC on how complaints are handled.

Assistant Principal Sues Over Principal's Religious E-Mails

In Clay County, Florida, the assistant principal in a public school earlier this month filed a federal lawsuit against the school's principal and the Clay County School Board complaining about religious (as well as political) e-mails sent to faculty by the principal using the principal's school e-mail account. The complaint (full text) in Capriola v. Clay County School District, (MD FL, filed 11/18/2011), pointed to ten separate e-mails with religious or proselytizing messages.  The lawsuit seeks a declaratory judgment that the e-mails violated the free exercise and establishment clauses and seeks an injunction against further similar e-mails. The Jacksonville Times-Union reports on the case.

Monday, November 28, 2011

Recent Articles of Interest

From SSRN:
From SSRN-- Islamic Law:
From SmartCILP and elsewhere:

Christian Worker At Heathrow Sues Over Treatment By Muslim Co-Workers

The London Telegraph and London Mail yesterday both reported on a lawsuit brought by a saleswoman-- a Lebanese born Christian-- who worked at Britain's Heathrow Airport World Duty Free shop. She was fired after Muslim co-workers filed a complaint against her. They thought they heard her insult a Muslim co-worker by saying he was a member of the Alawi sect.  The woman, Nohad Halawi says that she called the co-worker "allawhi"-- "a man of God" in Arabic.  Halawi, says that far from insulting Muslims, she has been the victim, having been subjected to bullying by Muslim co-workers.  She says one employee brought a Qur'an to work and insisted she read it, and another handed out Islamic leaflets.  A Christian co-worker of hers was driven to tears after a Muslim bullied her for wearing a cross. Halawi says that there is a growing atmosphere of fear among Christian employees at Heathrow as the number of employees who embrace fundamentalist Islam grows. Halawi says: "This is supposed to be a Christian country, but the law seems to be on the side of the Muslims."  Halawi's situation is complicated by the fact that she works on a freelance basis, placed by a cosmetic staff agency.  Since she is not an employee of World Duty Free, the religious anti-discrimination protections in Britain's employment law do not apply to her. Meanwhile elsewhere at Heathrow, a Jewish businessman is threatening to sue because of his treatment by Muslim security staff at the airport. He says they have repeatedly singled him out for full body scans.

Sunday, November 27, 2011

Church Sued For Not Reporting Abuse By Preacher

The Charleston (SC) Post and Courier reported last week that a lawsuit has been filed against the North Charleston (SC) Full Word Ministries on behalf of a plaintiff identified only as Joshua Doe, charging that a church official knew that its former pastor, Tyrone Moore, was sexually abusing plaintiff and failed to report it to authorities. In 2009, Moore (a charismatic preacher) was sentenced to 30 years in prison for molesting or assaulting 8 young boys at his home or in his church over a several year period. Twenty years earlier he had plead guilty to sexually abusing girls at his grandfather's church.

Moderate Islamists Win In Morocco; Promise No Religious State

As reported by Voice of America, the moderate Islamist Justice and Development Party (PJD) has apparently won the largest number of Parliamentary seats in Fridays elections in Morocco. Taking about one-fifth of the seats, it will be charged with forming a new government. The current prime minister's Istiqlal Party came in second and is ready to enter into coalition talks with the PJD. In an interview by Al Aribiya, Justice and Development Party leader Abdel Ilah Bin Kiran said that the party would not turn the country into a religious state:
[W]e are going to rule as a political and not a religious party. Religion belongs to mosques and we are not going to interfere in people’s personal lives..... If we want to fail we will impose the veil. We will not interfere in people’s choices and not one woman will be forced to wear the veil if we want to succeed.... The religious state has been gone a long time ago and will never come back.

Recent Prisoner Free Exercise Cases

In Neal v. Campbell, (9th Cir., Nov. 23, 2011), the 9th Circuit upheld a California district court's finding of qualified immunity based on the failure to show a substantial burden on the practice of religion in a case brought by an inmate who complained that he was placed in administrative segregation for becoming an "ameer" (a Muslim leader) at the prison. (See prior posting.)

In Kailey v. Zavaras, 2011 U.S. Dist. LEXIS 133277 (D CO, Nov. 17, 2011), a Colorado federal district court dismissed various free exercise (as well as a number of other) claims, partly on statute of limitations grounds and partly on the merits. Plaintiff claimed certain of his magazines had been destroyed, that he was prevented from obtaining emergency outreach community relief for his daughter, was strip searched after attending a Jewish service, was prevented from participating in a "Kairas" four-day weekend event as an "inside team member," and was prevented from attending Passover services.

In  Whitehouse v. Johnson, 2011 U.S. Dist. LEXIS 133822 (ED VA, Nov. 18, 2011), a Virginia federal district court dismissed a claim by by an inmate that his rights under RLUIPA and the 1st Amendment were infringed when a correctional center to which he was transferred interfered with his ability to complete his correspondence coursework from a Protestant theological seminary in which he was enrolled.

In Abel v. Martel, 2011 U.S. Dist. LEXIS 133713 (ED CA, Nov. 18, 2011), a California federal magistrate judge allowed an inmate to proceed with claims that he was not allow to purchase for personal use certain items used for Wiccan religious worship, but instead was limited under prison policy to using these for group worship. Plaintiff was also permitted to move ahead with a claim that various religious items were confiscated from his cell in retaliation for his filing a complaint. Plaintiff failed to exhaust his administrative remedies as to other claims.

In Ouahman v. Hillsborough County Department of Corrections, 2011 U.S. Dist. LEXIS 133751 (D NH, Nov. 16, 2011), a New Hampshire federal district court approved two separate magistrate's opinions (2011 U.S. Dist. LEXIS 133756, Aug. 29, 2011 and 2011 U.S. Dist. LEXIS 134060, Oct. 25, 2011) and permitted an inmate to proceed on RLUIPA and First Amendment claims that correctional officers denied him a prayer rug and a Qur'an, denied accommodations for observing Ramadan, and discriminatorily placed him in unnecessarily restrictive housing conditions.

In Runnels v. Banks, 2011 U.S. Dist. LEXIS 133892 (D MS, Nov. 18, 2011), a Mississippi federal magistrate judge permitted a Rastafarian inmate to move ahead with his claim for nominal and punitive damages for burdening his practice his religion while incarcerated. His claims for injunctive relief were found to be moot.

In Chance v. TDCJ, 2011 U.S. Dist. LEXIS 132664 (ED TX, Nov. 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 133972, Oct. 13, 2011) and denied a preliminary injunction to a Native American inmate who sought to have weekly religious ceremonies that include sacred pipe ceremonies and smudging and wished to carry a lock of his parents' hair in a pouch.

In Wakefield v. Indermill, 2011 U.S. Dist. LEXIS 134795 (ED CA, Nov. 21, 2011), a California federal magistrate judge recommended dismissing a Seventh Day Adventist inmate's complaints under the 1st Amendment and RLUIPA that the Protestant chaplain did not provide him with weekly Communion and foot washing.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 134869 (ED LA, Nov. 21, 2011), a Louisiana federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 134883, Oct. 17, 2011), and dismissed for failure to prosecute the case an inmate's claim that he was unable to practice his Santeria religion.

Saturday, November 26, 2011

300 In Maldives Protest UN Human Rights Commissioner's Speech

AP reported that yesterday in the Maldives, 300 people demonstrated against UN High Commissioner for Human Rights Navi Pillay who had just concluded a visit to the country. The protesters, claiming that the United Nations is spreading anti-Islamic activities in the Maldives, objected to Pillay's speech before Parliament in which she said that the flogging of women found to have had sex outside marriage is "inhuman and degrading."  Protesters also criticized Maldives officials for allowing Pillay to speak in Parliament.

UPDATE: Minivan News (11/27) reports on additional criticism of Pillay by various political and religious leaders in the Maldives.

Court Quashes Rabbi's Subpoenas Seeking Identity Of Anonymous Bloggers

In 2008, a New York appeals court in Tendler v. Bais Knesses of New Hempstead, Inc.,  held that Rabbi Mordechai Tendler was entitled to recover damages against the synagogue that fired him in violation of a contract clause that provided he could not be terminated unless the action was authorized by a Rabbinical court. His synagogue's action came after several women alleged he had abused his position to have sex with them.  As outlined in a Memorandum of Law in the case, for several years, Tendler has been attempting to obtain the identities of four bloggers who have commented about the charges against him, claiming that the charges were false and in retaliation for his speaking out on feminist issues. Most recently Tendler has served subpoenas on the anonymous bloggers' counsel again seeking their identity arguing that this information is relevant to determination of damages by the trial court.  In a Nov. 16 decision in the case (full text), the court quashed the subpoenas. The court held that since Tendler had already prevailed on the issue of liability, to permit disclosure of non-parties who have a right to anonymous speech would "open the floodgates and set a precedent that this Court is unwilling to do." Public Citizen Consumer Law & Policy Blog last week reported on these developments.

Friday, November 25, 2011

Court Says It May Decide Pastor's Employment Dispute With Church

In Errgong-Weider v. United Congregational Church of Norwalk, 2011 Conn. Super. LEXIS 2765 (CT Super., Oct. 25, 2011), a Connecticut trial court refused to dismiss a lawsuit by a pastor against his church challenging the termination of his contract by a vote of members at a meeting. It held:
The issues raised by the plaintiff's complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded ...; and (3) whether barring him from attendance at the meeting ... violated his rights as a member of the defendant non-stock corporation.... [R]esolution of these issues would not require the court to intrude upon the defendant's exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert's Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach ..., the court may analyze the defendant's bylaws and constitution in resolving the dispute.

Restriction on Sex Offender Infringes Free Exercise Rights

In United States v. Lantz, (6th Cir., Nov. 22, 2011), the 6th Circuit vacated, in part on religious freedom grounds, one of the special terms of supervised release  imposed on defendant who plead guilty to distributing child pornography. The terms would take effect after the defendant completed a 15-year prison sentence.  At issue was the requirement that "Defendant shall neither possess nor have under his control any matter that is pornographic or that depicts or alludes to sexual activity..." The court concluded:
A restriction on material that "depicts . . . sexual activity" alone might not be overly broad. But one that bans mere allusion to sexual activity is certainly overly broad. Not only would such a ban prohibit the defendant from reading significant parts of the Old Testament—Proverbs 7, The Song of Solomon, and II Samuel 11 come immediately to mind—it would encompass an enormous swath of literature, music, and other media.... Given the mass of literature and other media such a condition would encompass, the error was clear and obvious; it affects substantial First Amendment rights to receive information ... and to freely exercise religion.

School Prior Approval Policy For Handouts Upheld Over Objections of Religious Group

In Taylor v. Roswell Independent School District, (D NM, Nov. 23, 2011), a New Mexico federal magistrate judge dismissed 1st Amendment and equal protection claims brought by high school students who were members of a religious group, Relentless in Roswell. The students sued after they were stopped from distributing rubber fetus figurines with a passage from Psalms and contact information for a pregnancy resource center attached to them. School officials took the action because a previous similar distribution caused substantial disruption. The court upheld a school policy requiring prior approval for students to distribute non-school related material on school grounds, even though members of Relentless in Roswell had a history of handing out many  kinds of items-- including candy canes, wrist bands and Easter eggs, many with religious messages attached-- generally without seeking school permission.  None of these however created disruption in the schools. (See prior related posting.)

FFRF Says Sheriff's Ad Violates Establishment Clause

On Tuesday, the Freedom from Religion Foundation announced that it had sent a letter (full text) to the Onslow County, North Carolina Board of Commissioners complaining about an ad that the county sheriff placed in a local newspaper. The ad, in the form of a letter from the sheriff to "All Decent and Respectable Citizens...", says in part: "Our society in in a big mess today because good, decent and respectful citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom.... Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments." The Jacksonville (NC) Daily News reported yesterday that Sheriff Ed Brown says he paid for the ad from his personal funds, as he has done for dozens of other ads over the past 21 years. FFRF says that the letter -- which includes the sheriff's official badge and seal-- is clearly intended to carry the weight and authority of the Sheriff's Office and thus violates the Establishment Clause.

Some Defendants Dismissed From Suit On Hosting Religious Services At Homeless Shelter

In Caractor v. City of New York Department of Homeless Services, 2011 U.S. Dist. LEXIS 134623 (SD NY, Nov. 22, 2011), plaintiff, a bishop in the Discovered Being Ministry, sought to hold religious services at a housing facility for the homeless shortly after he and his family received shelter there. The Department of Homeless Services denied his request and he sued. The court now granted motions of certain of the defendants to dismiss them because they were not personally involved in any of the alleged violations of plaintiff's free exercise or free speech rights.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Allen v. Holmes, (FL Cir. Ct., Nov. 22, 2011), a Florida trial court, invoking the ecclesiastical abstention doctrine, dismissed claims of defamation and intentional infliction of emotional distress brought by plaintiff against her pastor.  Plaintiff claimed that defendant made defamatory statements about her as part of an effort to oust her from the church. The court concluded that the case turns on a determination of whether the statements were lies or instead were a response to disruptive behavior by plaintiff that was inconsistent with church doctrine. Thus resolution of the case would involve an inquiry into church governance and the conduct expected of church members-- matters which the ecclesiastical abstention doctrine preclude the court from considering. [Thanks to Russell  Buchanan for the lead.] 

Thursday, November 24, 2011

Memorial Cross At Camp Pendleton Raises Objections

The Los Angeles Times last Monday reported on the latest controversy over religious symbols on public property-- this time a 13-foot cross erected by Marines at Camp Pendleton. The cross was put up on Veterans Day to honor four marines killed in combat in Iraq, as well as a more general memorial. Three of the four Marines were part of a group that had erected a cross on the same location in 2003 before deploying to Iraq. That earlier cross was destroyed in a brush fire in 2007.  The Military Association of Atheists and Freethinkers has protested the cross. The American Center for Law and Justice has sent a letter to the Marines defending the constitutionality of the cross as a historical and universal symbol of remembrance.  The Marine corps says that it is reviewing the issue, and that the cross was erected by private individuals acting solely in their personal capacities. [Thanks to Scott Mange for the lead.]

7 Amish Charged With Federal Hate Crimes In Forced Beard Cuttings

The Cleveland Plain Dealer reports that authorities yesterday arrested Samuel Mullet, Sr., the Bishop of a break-away Amish group, known as the Bergholz clan, as well as three of his sons and three other followers, on charges of forcibly cutting the beards of 4 Amish men who were members of a different Amish community.  The FBI Affidavit in support of a criminal complaint (full text) says that Mullet controlled all aspects of his followers lives, forced extreme punishments on them and cleansed married women in the clan of the devil by sexual intimacy with them. After 8 families moved away from the Bergholz community in 2005 because of religious disagreements, Mullet excommunicated them. However a special committee of bishops from other communities determined that Mullet's excommunications were invalid. The 4 victims of the beard cuttings were involved with the bishop's committee, or aided break-away families, or, in one case, was one of the excommunicated members (and the father of one of those charged in the case). (See prior related posting.)

The Affidavit seeks a criminal complaint charging the 7 defendants with conspiracy to violate the federal Hate Crimes Prevention Act (18 USC Sec. 249). The federal Hate Crimes statute permits federal prosecution only if the crime involves one or more specified links to interstate commerce. One of those links is that the defendant employed a dangerous weapon that has traveled in interstate commerce. The FBI affidavit states that the attacks were carried out with "hair clippers and 8" scissors manufactured in the state of New York."

President Issues Thanksgiving Proclamation

Last week, President Obama issued a Presidential Proclamation (full text) declaring today a National Holiday of Thanksgiving. The Proclamation says in part:
When President George Washington proclaimed our country's first Thanksgiving, he praised a generous and knowing God for shepherding our young Republic through its uncertain beginnings..... In times of adversity and times of plenty, we have lifted our hearts by giving humble thanks for the blessings we have received and for those who bring meaning to our lives.  Today, let us offer gratitude to our men and women in uniform for their many sacrifices, and keep in our thoughts the families who save an empty seat at the table for a loved one stationed in harm's way.  And as members of our American family make do with less, let us rededicate ourselves to our friends and fellow citizens in need of a helping hand.

Wednesday, November 23, 2011

Trial Court Upholds Most of Canada's Anti-Polygamy Law

In Canada, the Supreme Court of British Columbia (the province's superior trial court) today upheld most of Canada's anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province's attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

In today's decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), Chief Justice Bauman concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17. To this extent, it violates Sec. 7 of the Charter which provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans-- as protected by Sec. 2 of the Charter-- but that this infringement is justified by Sec. 1 of the Charter that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion-- which runs 1367 numbered paragraphs in length-- includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

CBC News reports on the decision.

UPDATE: The National Post on Wednesday quotes a lawyer for the FLDS community as saying that Chief Justice Bauman's decision suggests a route for circumventing the polygamy statute. The decision finds that the statute only covers relationships entered into with some sanctioning event, and not mere common law marriage.

Archdiocese To Ask Bankruptcy Court For Approval of Therapy Fund

As previously reported, the Catholic Archdiocese of Milwaukee (WI) filed for Chapter 11 bankruptcy reorganization last January. This week the Milwaukee Journal-Sentinel reported that the Archdiocese will ask the bankruptcy court for permission to create a $300,000 fund to be used for counseling and therapy for sex-abuse victims whose claims are disallowed because the statute of limitations has run, because the abuser was not employed by the diocese or the victim has already reached a settlement with the Archdiocese (Archbishop's letter announcing the plan.) Jim Stang, the attorney for the creditors committee, says he fears this is a prelude to the Archdiocese beginning to file objections to claims.  One of the contested issues is whether the Archdiocese is responsible for claims involving priests who belong to religious orders, but needed the Archbishop's approval to operate in the Archdiocese.

Court Upholds Denial of Use Permit To Virginia Church

In Calvary Christian Center v. City of Fredericksburg, Virginia, 2011 U.S. Dist. LEXIS 134290 (ED VA, Nov. 21, 2011), a Virginia federal district court upheld the city of Fredericksburg's denial of a special use permit to Calvary Christian Center that wanted to lease space in its church to the operator of a private day school for disabled children. Rejecting plaintiff's free exercise and RLUIPA claims, the court said that "Calvary has not pled any facts demonstrating that the operation of the day school by a third party is a religious exercise." The court also rejected plaintiff's free speech claims, as well as its overbreadth and vagueness assertions. The Fredericsburg Free Lance-Star reports on the decision.

Roy Moore To Run Again For Alabama Chief Justice

Sunshine State News today reports that former Alabama Supreme Court Chief Justice Roy Moore yesterday announced that he would enter the March Republican primary to run again for the Alabama chief justice position. At least two other Republicans are also seeking the position. Moore became well know because of his unsuccessful battle, beginning in 2001, to keep a large Ten Commandments monument in the lobby of the Alabama State Judicial Building. Moore's announcement ends speculation that he would run for the Presidency next year. Moore says he will continue to defend religion in the public square, but will not bring back the Ten Commandment monument, which now is housed at a church in Gasden, Alabama. (See prior posting.)

Maldives Government Shuts Down Sufi Blog

According to Reporters Without Borders, last Saturday the Communications Authority of the Maldives, on the orders of the Islamic affairs ministry, shut down the blog of Ismail Khilath “Hilath” Rasheed because it contained anti-Islamic material. Rasheed is a Sufi, while most Maldivians are Sunni Muslims. Rasheed plans to go to court-- only a court order can permit him to reopen his blog.  Rasheed says this is the beginning of a crackdown by conservatives in control of the Islamic affairs ministry.

Suit Seeks Right To Preach At "Tour of Lights" Event

Yesterday's Duluth (MN) News Tribune and the Minneapolis Star Tribune, report that two locally well-known street preachers have filed suit in federal district court to obtain the right to preach at the Bentleyville Tour of Lights held in Duluth's Bayfront Festival Park. The event attracts 150,000 people annually, and the city furnishes trash and snow removal, lights and similar services. Plaintiffs say they have a religious obligation to preach in public, including carrying signs and wearing messages on their clothes. One of the men, along with a second preacher, was ordered out of the display last year when they insisted on preaching to those attending.  Deputy City Attorney Alison Lutterman says that Bentleyville, a private organization, "has a contact with the city that allows it exclusive rights to the use of the Bayfront area for its presentation of a holiday lighting display.... These exclusive rights include the right to exclude persons. Bentleyville is not an area intended for the exercise of 1st Amendment activity. The management of Bentleyville have been advised of its right to exclude persons from the area within its contractual exclusive use." In the lawsuit, Steve Jankowski and Peter Scott ask the court to enjoin Duluth police officials from ejecting them from the event.

Tuesday, November 22, 2011

Court Orders Father To End Mormon Education of Children Without Mother's Consent

In In re the Marriage of John and Angela Bell, (CA App., Nov. 18, 2011), a California appellate court upheld a trial court's order in a marriage dissolution case preventing the father from continuing taking the couple's young children to Mormon religious services and Sunday School without the mother's consent.  The order would expire when the children reached 12 years of age.  The mother was Jewish, and during the marriage the children had been raised in the Jewish religion. An expert who conducted a child custody investigation concluded that the children were confused because they thought their father had become Jewish, that involving the children in Mormon education was being used as a weapon by the father to intimidate his former spouse, and that continuing it would cause psychological harm to the children.

Georgia High Court Favors Parent Church In Two Property Cases

In Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court in  a 6-1 decisions held that "neutral principles of law show that the property of Christ Church at issue is held in trust for the benefit of the Episcopal Church." In 2007, Christ Church broke away from the Episcopal Church and affiliated with the more conservative Anglican Province of Uganda. The break came after the Episcopal Church voted to ordain an openly gay man as Bishop of New Hampshire. Judge Brown dissented.  Episcopal News Service reports on the decision.

In a 4-3 decision in Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court held that under the "neutral principles of law" doctrine, the property of the break-away Timberridge Presbyterian Church was held in trust for the national church, the PCUSA. Justice Nahmias, writing for the majority, said:
in its own charter TPC Inc. proclaimed its allegiance to the PCUSA Book of Order, which included a provision explicitly stating that local church property is held in trust for the use and benefit of the PCUSA, and at no time during the more than two decades before this dispute erupted and the eight years after it was deeded the property at issue did TPC Inc. even seek to amend its Articles to demonstrate any different intent.
Two separate dissenting opinions were also filed.

House Holds Hearing On International Religious Freedom Report

On Nov. 17, the House Committee on Foreign Affairs, Subcommittee on Africa, Global Health, and Human Rights, held a hearing on the State Department's 2011 International Religious Freedom Report. (See prior posting.) The subcommittee has posted the full text of testimony by Leonard Leo, Chairman of USCIRF; Bishop Ricardo Ramirez, representing the U.S. Conference of Catholic Bishops; Benedict Rogers, representing Christian Solidarity Worldwide; Rev. Majed El Shafie, president of One Free World International; and R. Drew Smith, scholar-in-residence at Morehouse College. While the witnesses focused on religious freedom issues in specific countries, they also dealt with various organizational and structural issues. Leonard Leo, for example, urged passage of the USCIRF reauthorization bill, discussed the reporting cycle used by the State Department, welcomed the announcement of Countries of Particular Concern at the same time that the International Religious Freedom Report is issued, urged upgrading of the role of the Ambassador-at-Large for International Religious Freedom and sought more training for Foreign Service Officers on promoting religious freedom.

New Report On Religious Advocacy Groups In D.C.

Yesterday, the Pew Forum on Religion and Public Life released a new report titled Lobbying for the Faithful:   Religious Advocacy Groups in Washington D.C. Here is an excerpt from the Executive Summary:
The number of organizations engaged in religious lobbying or religion-related advocacy in Washington, D.C., has increased roughly fivefold in the past four decades, from fewer than 40 in 1970 to more than 200 today. These groups collectively employ at least 1,000 people in the greater Washington area and spend at least $390 million a year on efforts to influence national public policy. As a whole, religious advocacy organizations work on about 300 policy issues. For most of the past century, religious advocacy groups in Washington focused mainly on domestic affairs. Today, however, roughly as many groups work only on international issues as work only on domestic issues, and nearly two-thirds of the groups work on both.... 
The study finds that about one-in-five religious advocacy organizations in Washington have a Roman Catholic perspective (19%) and a similar proportion are evangelical Protestant in outlook (18%), while 12% are Jewish and 8% are mainline Protestant. But many smaller U.S. religious groups, including Baha’is, Buddhists, Hindus, Muslims and Sikhs, also have established advocacy organizations in the Washington area. In fact, the number of Muslim groups (17) is about the same as the number of mainline Protestant groups (16). And the largest category today is interreligious: One-quarter of the groups studied (54) either represent multiple faiths or advocate on religious issues without representing a specific religion....
 Efforts by religious groups to influence U.S. public policy are a multimillion-dollar endeavor, with combined annual expenditures conservatively estimated at more than $390 million.

Monday, November 21, 2011

British Scouting Organization Considering Religion Neutral "Promise"

Britain's Guide Association-- a half-million member organization similar to the Girl Scouts-- is considering amending its "Promise" to eliminate religious references (or creating a separate non-religious alternative) after two families objected to the  current version that reads: "I promise that I will do my best, to love my God, to serve the Queen and my country, to help other people and to keep the Guide Law." Yesterday's London Telegraph reports that Guides who do not take the Promise are not eligible for some of the group's highest awards, such as the Baden-Powell Challenge Award and the Chief Guide's Challenge. The Guides in France and Netherlands have a version of the Promise that omits references to God. Britain's National Secular Society says that Britain's version discriminates against atheists.

Recent Articles of Interest

From SSRN:
From SmartCILP:
  • Carl Anderson, Law and Culture: Christianity on Trial, [Abstract], 9 Ave Maria Law Review 207-220 (2011).
  • Caitlin Stapleton, The Legal Legacy of Pope Gregory I: In Life and Letters, [Abstract], 9 Ave Maria Law Review 303-333 (2011).
  • Symposium. Confronting Islam: Shari'ah, the Constitution, and American Muslims. Panel participation by Peter Danchin and Barbara Olshansky, moderators; Nathan Brown, Faisal Kutty and Sahar Aziz, panelists; keynote address by Imam Suhaib Webb. 11 University of Maryland Law Journal of Race, Religion, Gender & Class 59-96 (2011). 

Sunday, November 20, 2011

Report Traces Path of Herman Cain's Religious Faith

CNN yesterday posted a lengthy report on Republican Presidential hopeful Herman Cain's religious faith and his active involvement as an associate minister in Atlanta's Antioch Baptist Church-- a congregation Cain's parents joined when Cain was 10 years old.  CNN reports:
Cain’s religiosity runs deep enough that he regularly delivers sermons at his childhood church, has recorded a gospel music album and has a traveling minister as part of his campaign apparatus.... For all his church involvement, Cain’s message of self-determinism is seemingly at odds with Antioch’s focus on social justice....

Since becoming an associate minister at Antioch, Cain has preached in pulpits around the country, often eschewing the big paydays of motivational speaking gigs for modest preaching honorariums.
Cain has written that his decision to run for the U.S. Senate in 2002 as well as his current run for the Presidency was inspired by God.  In 2006 Cain had successful surgery for colon cancer. CNN recounts:
And when it was time for surgery, the doctors explained they would be making a J-shaped incision. “Like J-E-S-U-S?” Cain asked the doctor. The candidate would go on to call the incision a “Jesus cut.”...
By January 2007, Cain was cancer-free. The road signs began to change. He returned to the radio airwaves and began sowing the seeds of a run for president..... Herman Cain did not want to run for president. He did not want to be president. But God told him to.....
“When I finally realized that this was God saying what I needed to do, I was like Moses. ‘You got the wrong man, Lord! Are you sure?’ Now, you're not supposed to doubt God. But I'm going, ‘I think maybe you're looking at somebody else.’”

Recent Prisoner Free Exercise Cases

In Shepherd v. Goord, (2d Cir., Nov. 15, 2011), the 2nd Circuit held that 42 U.S.C. § 1997e(d)(2) which caps any attorney fee award in prisoner cases at 150% of of damages applies to prisoner cases in which only nominal damages are awarded. In the case, a jury awarded $1 in damages to an inmate whose Rastafarian religious beliefs were violated by correction officials touching his dreadlocks during a search. Attorneys fees payable by defendants were thus limited to $1.50.

In Cobb v. Mendoza-Powers, 2011 U.S. Dist. LEXIS 131017 (ED CA, Nov. 14, 2011), a California federal magistrate judge rejected an inmate's claim that his rights under the 1st Amendment and RLUIPA were violated when he was required to shave his head against his religious beliefs.

In Thompson v. Hoops, 2011 U.S. Dist. LEXIS 131130 (CD CA, Nov. 9, 2011), a California federal magistrate judge permitted a pre-trial detainee to move ahead with his claim that his free exercise rights were infringed when prison authorities refused to give him access to ceremonial oils, an Assemblies of Yahweh religious text and chaplain, and refused to allow him to participate in his religion's holy days and feasts.

In Brown v. Alden, 2011 U.S. Dist. LEXIS 131343 (ED WA, Nov. 14, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 131347, Oct. 13, 2011), and permitted an inmate who self-identified as Jewish to move ahead with his complaint that he was denied access to Jewish chapel on Fridays for group worship, candle lighting, and access to Jewish materials.

In Hawkins v. Hollingsworth, 2011 U.S. Dist. LEXIS 131582 (SD IL, Nov. 15, 2011), an Illinois federal district court refused to dismiss claims by an inmate that his free exercise rights were violated when he was denied the right to assemble, time for prayer and study, the right to watch videos, and a religious diet. Plaintiff was also permitted to move ahead on his complaint that his House of Yaweh group was not given its own separate worship time, but, instead, was placed with another religious group.

In Mootry v. Flores, 2011 U.S. Dist. LEXIS 132266 (ED CA, Nov. 16, 2011), a California federal magistrate judge recommended dismissal on various grounds of a Muslim inmate's complaint that his rights under the 1st Amendment and RLUIPA were being violated by prison rules that required a chaplain or outside volunteer before group religious services could be held. The lack of volunteers and delays in hiring a Muslim chaplain led to an absence of Friday Jum'ah services for over a year.

Bankruptcy Court Approves Sale of Robert Schuller's Crystal Cathedral To Catholic Diocese

In Santa Anna, California on Thursday, a bankruptcy judge approved the sale of Crystal Cathedral-- the modernistic home of televangelist Rev. Robert Schuller's ministry-- to the Roman Catholic Diocese of Orange.  Crystal Cathedral Ministries filed for Chapter 11 bankruptcy last October.  The Los Angeles Times reports that Chapman University had also been bidding for the Cathedral, and even upped its bid to $59 million, topping the $57.5 million sale to the Catholic Church approved by the court.  The Crystal Cathedral board and Schuller himself both strongly favored the sale to the Catholic diocese because it will consecrate the Cathedral as a Catholic Church. Chapman University wanted the site as a satellite campus and might some day have used the Cathedral for non-religious purposes. The diocese will allow Cathedral Ministries to lease back core buildings for three year. Chapman University had been willing to allow the church to stay on most of the property for as long as 20 years.

Suit On Wearing Kufi In Courthouse Is Not Frivolous

In Al-Qadir v. Wackenhut Corp., 2011 U.S. Dist. LEXIS 131470 (MD TN, Nov. 15, 2011), a Tennessee federal magistrate judge ruled that a free exercise complaint filed by a plaintiff proceeding in forma pauperis is not frivolous. Under 28 USC 1915(e), the complaint would be dismissed if it was frivolous. At issue are allegations that Juvenile Court officials told plaintiff that he could not wear his kufi inside the court building. The court held: "While it appears that the situation underlying Plaintiff's Complaint has been resolved for the future, Plaintiff still has an arguable claim for nominal damages for the incident that occurred on April 11, 2011."

Utah Highway Patrol Memorial Crosses Modified In Hopes of Saving Them

Now that the U.S. Supreme Court has refused to review the 10th Circuit's decision in Utah Highway Patrol Association v. American Atheists (see prior posting), proponents of the memorial crosses involved in the case have made changes hoping to overcome the Establishment Clause problems found by the 10th Circuit.  At issue are roadside crosses memorializing individual Highway Patrol members who were killed in the line of duty. 11  of the 14 crosses are on state property. AP reported Friday that the logo of the Utah Highway Patrol Association has now been removed from the crosses, and a disclaimer (large enough to be read by passing cars) has been added to each cross stating that it is not meant to be a state endorsement of religion. However it is unclear that this will be enough to change the court's ruling since no other organizations are permitted to place signs or memorials along highways for safety reasons.

Saturday, November 19, 2011

ACLU Questions Policy On High Schoolers Wearing Rosaries That Are Gang Symbols

In Brownsville, Texas, the ACLU has filed an open records request with school officials in order to look into the a provision in the high school's Code of Conduct that bans wearing "religious symbols which have been altered with the intent of causing offense or inciting or promoting gang activity, violence, or other prohibited behaviors."  The San Antonio Express News today reports that the move comes after school officials instructed  students wearing handmade rosaries around their heads and waists to instead tuck them into their clothes.  Police officials say the rosaries are symbols identifying the students' connection to prison gangs.

Education Official In Canadian Territory Sets Ground Rules For Distributing Religious Materials In Schools

The Deputy Minister of Education in the Canadian federal territory of Nunavut has ruled that religious materials may be distributed in the public schools.  Deputy Minister Kathy Okpik's statement (full text) reads in part:
The Education Act allows District Education Authorities to grant permission for the distribution of religious materials in schools outside of the education program.
Governments cannot promote any particular religion or faith over another. As a public institution, the District Education Authority cannot show favoritism to one religious group over another. If a District Education Authority allows one religious group into the schools to distribute materials, it must allow all religious groups the same access.
No one, including teachers and students can be forced to participate in religious programs or receive religious materials if they object on personal, moral or religious grounds.
Nunatsiaq Online reports that the statement was issued shortly after the District Education Authority in the town of Arviat gave the Gideons permission to distribute Bibles to students in grades 5 through 12 in the schools.

Canadian Court Rejects Claim That Ban of Cannabis Violates Religious Freedom

In Bennett v. Attorney General for Canada, (Fed. Ct., Nov. 15, 2011), the Federal Court of Canada upheld a refusal by Canada's Minister of Health to grant an exemption from Canada's Controlled Drugs and Substances Act to a member of the Church of the Universe who believes that cannabis is the "tree of life."  Applicant argued that the ban on marijuana violates his rights under Sections 2 (freedom of religion), 7 (protection of liberty) and 15 (equal protection) of the Canadian Charter of Rights and Freedoms. Rejecting applicant's religious freedom claim, the court said:
The Applicant ... has not shown that his practice of consuming seven grams of marihuana per day has any nexus with religion. While the Applicant has shown that his practice is based on the belief that cannabis is the tree of life, this, in and of itself, does not make it a religious practice....
The Charter’s recognition that religion is of great personal importance to its adherents does not flow into the converse conclusion that all practices and beliefs that are of great personal importance to individuals are religious in nature.
Cannabis Culture reports on the decision.

Friday, November 18, 2011

Suit Claims Employee Was Fired For Refusing To Wear "666" Sticker

AP reports today on a religious discrimination lawsuit filed in federal court in Georgia by a fired factory worker.  Pliant Corp. (now Berry Plastics Corp.) celebrated its safety record by having workers each day wear stickers displaying the number of accident-free days in their factory. In early 2009, the accident-free days moved into the 600's and employee Billy Hyatt told a manager that he would not be able to wear a sticker proclaiming 666 days. According to Hyatt's Christian religious beliefs, wearing this would force him to accept the mark of the beast and be condemned to hell. The manager assured him that he would not have to wear the number, but when the 666th day arrived he was told that his beliefs were ridiculous and he would be suspended for 3 days for not wearing the sticker. Several days later he was fired. The EEOC issued Hyatt a right to sue letter.

7th Circuit Grants En Banc Review In Case On Use of Church For Graduation Ceremonies

Brookfield Patch reports that yesterday the U.S. 7th Circuit Court of Appeals granted en banc review in John Doe, 3 v. Elmbrook School District.  In granting review by the full court, the court vacated the 2-1 panel decision that upheld against an Establishment Clause challenge the practice by two Wisconsin public high schools of holding their graduation ceremonies in a Christian church that the district rented for the occasion. (See prior posting.)

California High Court Tells 9th Circuit: Initiative Proponents Have Standing

The California Supreme Court yesterday gave a substantial boost to backers of Proposition 8-- the initiative that amended the state constitution to bar recognition of same-sex marriage.  In a lengthy and unanimous decision in Perry v. Brown, (CA Sup. Ct., Nov. 17, 2911), the state's high court held that:
when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
Justice Kennard also filed a concurring opinion.  The court's decision came in response to a question certified to the California Supreme Court by the U.S. 9th Circuit Court of Appeals in a federal lawsuit challenging the constitutionality under the U.S. Constitution of Proposition 8. The federal district court held that Proposition 8 violated the due process and equal protection clauses of the U.S. Constitution.  State officials refused to defend the constitutionality of Proposition 8 and official proponents of Proposition 8 sought to intervene to defend the measure. (See prior posting). AP reports on yesterday's opinion.

Court Protects Anonymity of Blogger Who Criticized Spiritual Organization

In Art of Living Foundation v. Does 1-10, (ND CA, Nov. 9, 2011), a California federal district court held that plaintiff, an organization dedicated to teaching the spiritual lessons of Ravi Shankar, cannot not force Internet service providers at this time to reveal the name of an anonymous online blogger. In expressing concern about protecting the right of anonymous speech, the court noted that this case is unusual because the anonymous blogger appeared in the litigation under a pseudonym, and even participated in discovery.  Art of Living Foundation asserted claims of defamation, misappropriation of trade secrets, copyright infringement and trade libel against the blogger. Reporters Committee for Freedom of the Press reports on the decision.

ACLU Says School Cannot Avoid Prayer Ban By "Spinning Off" Commencement

Earlier this month, the ACLU of Nebraska announced that it had sent a letter (full text) to the Superintendent of the Lakeview Community Schools in Columbus, Nebraska demanding an end to prayers at high school graduation ceremonies. As reported yesterday by New American, the high school has an unusual justification for the practice. Ten years ago when the ACLU questioned prayer at the school's graduation ceremonies, the school "spun off" graduation ceremonies to the parents for them to run, hoping thereby to turn graduation into a private event at which prayer is permissible. However, the ACLU's current letter contends that the school "may not circumvent ... basic constitutional prohibitions by enlisting other private groups to present religious messages to students."

Thursday, November 17, 2011

Another Cross Appears and Is Removed From Sunrise Rock

The long-running battle over the the cross on Sunrise Rock in the Mojave Desert Veterans' Memorial is back in the news. Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) Subsequently the cross that was the subject of litigation was stolen, private parties erected a replica (see prior posting) and the National Park Service removed the replica to comply with a district court injunction that was still in effect. (Background from NPS). Yesterday Scripps Howard reported that yet another cross appeared on Sunrise Rock on Monday. Park Service rangers removed it on Tuesday. Park Service police will investigate who erected the cross and whether a crime was committed. Both this cross and the former one that was removed will be held as evidence while negotiations to settle the lawsuit over the land transfer continue. On Tuesday, the federal district court granted the parties a 90-day extension in their attempts to reach a settlement.

11th Circuit Dismisses Christian Coalition's Suit On Non-Profit Tax Status

In Christian Coalition of Florida, Inc. v. United States, (11th Cir., Nov. 15, 2011), the 11th Circuit held that a tax refund suit needed to be dismissed as moot after the IRS refunded the disputed taxes in full. Christian Coalition of Florida ("CC-FL") sought IRS recognition as as Section 501(c)(4) social welfare organization. However IRS refused the application, concluding that CC-FL's activities primarily constitute participation in political campaigns-- an activity not permitted for 501(c)(4) organizations.  CC-FL paid the small amount of taxes due and then claimed a refund.  IRS refunded a portion of the taxes. CC-FL sued for a refund as to the remainder ($261) and also sought declaratory and injunctive relief in order to challenge the IRS determination that it was not entitled to 501(c)(4) status. Shortly after the litigation was filed, IRS refunded the remaining taxes.  The court agreed with the government that the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act preclude CC-FL from suing to obtain favorable tax status for future years. A special tax code provision (26 USC 7428) allows groups claiming Section 501(c)(3) status to obtain declaratory judgments, but the provision does not apply to 501(c)(4) organizations which do not face the same problem of losing donations when their deductibility is open to question.  Contributions to 501(c)(4) groups generally are not deductible in any event.

11th Circuit: RLUIPA "Equal Terms" Violation, But Only Nominal Damages Awarded

Covenant Christian Ministries, Inc. v. City of Marietta, Georgia, (11th Cir., Sept. 7, 2011), is an interesting RLUIPA case decided earlier this year which has just now come to my attention.  The case involves a RLUIPA challenge brought by a church to a city's zoning ordinance which prohibited religious institutions from locating in various residentially zoned areas, even though private parks, playgrounds and neighborhood recreation centers were permitted. The 11th Circuit upheld the district court's conclusion that the ordinance violates RLUIPA's "equal terms" provisions, but that plaintiff is entitled only to nominal damages.  The district court remedied the unequal treatment in the zoning law by holding that private parks, playgrounds and neighborhood recreation centers should be excluded from the residentially zoned areas, just as religious institutions were. Thus, according to the 11th Circuit, the church obtained no vested right to build its church under the ordinance's original language. Shortly after the district court's decision, the city amended its zoning law in a manner that still treats all places of assembly, religious and non-religious, alike.  They are special uses requiring special approval by city council.  According to the 11th Circuit, this change mooted plaintiff's claims for injunctive relief under the earlier law. (See prior related posting.) [Thanks to Christopher Lund via Religionlaw for the lead.]

Muslim Protesters Vandalize Monuments Donated To Maldives By Other South Asian Nations

The 17th Summit of the South Asian Association for Regional Cooperation (SAARC) was held on Nov. 10 to 11 in Addu City, Maldives.  In connection with the Summit, both Pakistan and Sri Lanka donated monuments to the Maldives.  Both monuments were promptly vandalized by protesters who claim the statues are idols that are illegal to import or display in the Maldives. The monument donated by Pakistan was set on fire and later stolen. Two men have been arrested in the incident.  However, according to Minivan News yesterday, Adhaalath Party President Sheikh Imran Abdulla said the monument "conflicts with the constitution of the Maldives, the Religious Unity Act of 1994 and the regulations under the Act because it depicted 'objects of worship' that 'denied the oneness of God'." The paper reports further:
The religious Adhaalath Party and the party of former President of Maumoon Abdul Gayoom, the Progressive Party of the Maldives (PPM), have declared those responsible for destroying the monument to be “national heroes”.
The Sri Lankan statue, a lion (representing Sri Lanka's national symbol), was doused with crude oil, according to as separate Minivan News report yesterday. Ahmed 'Marz' Saleem, PPM Council, member filed a complaint with police against the Maldives Customs Department for its allowing "idols" to be imported into the country. He says the importation violates the Police Act, Customs Act, Contraband Act and the Religious Unity Act.

UPDATE: According to Haveeru News Service (11/17), the Maldives Islamic Ministry has ordered the Foreign Ministry, the President’s Office and Addu City Council to remove monuments displaying irreligious graphic content. The Pakistani monument is the clearest example. However the President's press secretary said that "returning a gift given by another government is not an easy thing to do."

Wednesday, November 16, 2011

USCIRF Will Get Another Temporary Extension In Continuing Resolution

As previously reported, under the International Religious Freedom Act, the U.S. Commission on International Religious Freedom would have gone out of business on Sept. 30, 2011. However provisions in two Continuing Resolutions have kept it alive pending enactment of a two-year reauthorization bill that has been passed by the House and is pending in the Senate. The latest of the Continuing Resolutions extended USCIRF's life to this Friday, Nov. 18.  Now, however, another temporary reprieve is apparently about to be enacted.  As reported in a memo issued Monday by the chairman of the House Appropriations Committee, the final conference report on the Fiscal Year 2012 Agriculture, Commerce/Justice/Science, and Transportation/Housing and Urban Development Appropriations bill – sometimes known as the "Mini-bus" contains yet another Continuing Resolution continuing other operations of the federal government until Dec. 16. (House Report 112-284 full text). The convoluted language of this Continuing Resolution has the effect of also extending USCIRF until Dec. 16.  The CR provides that:
The Continuing Appropriations Act, 2012 (Public Law 112-36) is amended by striking the date specified in section 106(3) and inserting "December 16, 2011".
Public Law 112-36 in turn extended the life of USCIRF through a provision reading:
Section 209 of the International Religious Freedom Act of 1998 (22 U.S.C. 6436) shall be applied by substituting the date specified in section 106(3) of this Act for "September 30, 2011".
In response to an inquiry, USCIRF Chairman Leonard Leo told Religion Clause blog by e-mail:
There is a provision in the CR to keep USCIRF going if the reauth cannot be achieved by the end of the week. But, we are hoping that the Democrats will move forward and get it done in the next couple of days. It would be shameful if, as other countries around the world create institutions like USCIRF, we shut ours down.
UPDATE: The White House website reports that the President signed the legislation on Nov. 18.

Bishop-Prosecutor Agree To Monthly Meetings On Child Abuse Evidence To Avoid Indictments

As previously reported, a Jackson County, Missouri grand jury last month indicted Catholic bishop Robert W. Finn and the Diocese of Kansas City-St. Joseph on misdemeanor charges growing out of their delay in reporting to authorities pornographic photos of girls found on a priest's laptop computer. The New York Times reported yesterday that now Bishop Finn has entered an agreement with the prosecuting attorney of neighboring Clay County to avoid indictment there as well. The bishop will meet monthly for the next five years with the prosecutor to report every suspicious episode in his diocese involving child abuse.  Finn will also visit each parish in Clay County to inform parishioners on how to report suspicious behavior. Victims' advocates criticized the agreement as ineffectual.

FBI May Invoke FOIA Exemption For Its Investigations Guide

In Muslim Advocates v. United States Department of Justice, (D DC, Nov. 10, 2011), the U.S. District Court for the District of Columbia held that the federal government can rely on the exemption in the Freedom of Information Act for certain law enforcement records to deny an advocacy group unredacted copies of chapters of the FBI's Domestic Investigations and Operations Guide. The court upheld in part the government's release of only a redacted version of the Guide. However, the court called for additional explanation of the government's insistence on extensive redactions in one of the chapters.

The 2009 complaint (full text) in the case contended that plaintiffs sought the documents because of their relevance to concerns over racial and religious profiling and  concerns about infringement of privacy and various 1st Amendment rights. In 2008, prior to implementing the Guide, the FBI had held two meetings with civil rights and civil liberties organizations to discuss the Guide. The attendees were allowed to review unredacted versions of 4 chapters, and take notes on them, for about two hours. Plaintiffs claimed that this waived the government's right to now withhold these chapters under FOIA exemptions. The court held, however, that it "is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public'." Reporters Committee for Freedom of the Press reports on the decision.

Tuesday, November 15, 2011

Illinois Catholic Agencies Drop Suits Seeking To Keep Foster Care Funding

The Chicago Tribune reported yesterday that the Catholic dioceses of Joliet, Springfield and Belleville, Illinois have dropped their lawsuits against the state of Illinois in which they were seeking to retain state funding for foster care services without placing children with same-sex couples who had entered civil unions. (See prior posting.) An attorney for Catholic Charities says that they were forced to drop the lawsuit when the state delayed payments to the agencies and thus prevented foster care parents from receiving payment.

Meanwhile, Catholic Social Services of Southern Illinois announced that it was separating from the Diocese of Belleville and as a new organization, Christian Social Services of Illinois, will continue to offer foster care services in compliance with Illinois Religious Freedom Protection and Civil Union Act. A statement by the Diocese of Springfield indicated that it is completely ending its foster care and adoption services, but added: "The silver lining of this decision is that our Catholic Charities going forward will be able to focus on being more Catholic and more charitable, while less dependent on government funding and less encumbered by intrusive state policies."

Bishops Express Concern Over Government Policies Seen As Infringing Catholic Religious Freedom

According to AP, the Fall meeting of the U.S. Conference of Catholic Bishops, being held from Nov. 14-17, is focused heavily on religious freedom and the perceived infringement of Catholic religious liberty by various policies of federal and state governments. (See prior posting.)  AP reported in part:
Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said the bishops are not just reacting to Obama's policies, but to a broader society in a "drive to neuter religion" and "push religion back into the sacristy."
... But Dolan said he discussed the church's concerns with Obama when the two men met last week in the Oval Office. The archbishop said Obama was "extraordinarily friendly" and "very ardent" in reassuring Dolan that the administration would look into the problems.
"I left there feeling a bit more at peace with this issue than when I entered," Dolan said.
However yesterday the USCCB issued the following statement:
The meeting between President Obama and Archbishop Dolan on November 8 at the White House was very cordial and included pertinent moral concerns arising in foreign and domestic policy, issues of both agreement and disagreement. Both President Obama and Archbishop Dolan agreed that this was a private meeting, so no further details will be discussed.

FBI Releases 2010 Hate Crime Data

The FBI yesterday released its report on 2010 Hate Crime Statistics. (Full text of report.) Of the 6,224 single bias incidents reported in 2010, 20% were motivated by religious bias-- second only to racially motivated hate crimes which accounted for 47.3% of the incidents.  Sexual orientation bias was involved in 19.3% of the single bias incidents. Of the 1,409 hate crimes offenses motivated by religious bias, 65.4% were anti-Jewish; 13.2% were anti-Islamic; 4.3% were anti-Catholic; 3.8% were anti-multiple; 3.3% were anti-Protestant; 0.5% were anti-Atheism/Agnosticism/etc.; and 9.5% involved various other religions. The 6,628 total hate crime incidents in 2010 amounted to an insignificant increase over the 6,604 incidents reported for 2009. (See prior posting.) ADL issued a press release commenting on the 2010 data and decrying the fact that numerous law enforcement agencies around the country failed to report their hate crime data to the FBI.

Bishops Launch New Website Opposing Same-Sex Marriage

The U.S. Council of Catholic Bishops has created a new website-- Marriage: Unique for a Reason-- devoted to defending traditional marriage and opposing same-sex marriage.  A welcoming blog post from Bishop Salvatore J. Cordileone, chairman of the bishops' Subcommittee for the Promotion and Defense of Marriage, says in part:
Confusion about marriage's meaning is common today. What is marriage? Why does sexual difference matter for marriage? Do children have a right to a mom and a dad? Is marriage between one man and one woman discriminatory? These and many other questions are being raised with great urgency, and they call out for answers.
The Marriage: Unique for a Reason website is designed as a home of resources on what the Catholic Church teaches about the unique meaning of marriage, and why.

Monday, November 14, 2011

Supreme Court Denies Cert In Two Religion and Schools Cases

The U.S. Supreme Court today denied certiorari in two cases involving school-related religion issues. (Order List for 11/14/2011). The first case in which it denied review is Workman v. Mingo County Board of Education (Docket No. 11-380). In the case, the 4th Circuit upheld West Virginia's statute requiring vaccination for various diseases as a condition of attending school, rejecting plaintiff's free exercise, equal protection and substantive due process challenges to the requirement. (See prior posting.)

The other case in which the Court denied review is Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School District, (Docket No. 11-402).  In the case, the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral, rejecting complaints by a group that was dedicated to using sports for evangelism that under the policy it was limited to distributing its flyers once per year. (See prior posting.)  Education Week reports on the Supreme Court's denial of cert. in both cases.