1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

CNN reports on the decision.

Malaysian Federal Court Upholds Licensing of Muslim Teachers

A 5-judge panel of Malaysia's Federal Court has upheld the constitutionality of Sec. 53(1) of the state of Negeri Sembilan's Syariah Criminal Enactment 1992 which outlaws Muslims teaching Islam without accreditation by the state's Islamic Religious Council.  Malaysian Insider reported yesterday that a challenge to the law was brought by a Muslim counselor with the Patient Counseling Division of the National Heart Institute who (along with another defendant) faces a fine and up to two years in jail for delivering a religious talk at a celebration of the Prophet Muhammad's birthday in 2010. Plaintiffs claimed that the law exceeds the powers of the state's legislature. In upholding the state law, the Federal Court said:

We are of the view that it is necessary in this day and age for the authority to regulate the teachings or preachings of the religion in order to control, if not eliminate deviant teachings. The integrity of the religion needs to be safeguarded at all costs. That is what Section 53 of the enactment purports to do.

Pakistan Indicts Former Officials On Hajj Corruption Charges

In Rawalpindi, Pakistan on Wednesday, a trial court indicted former minister for Religious Affairs Syed Hamid Saeed Kazmi, former Hajj director general Rao Shakeel and former Hajj joint secretary Aftab-ul-Islam Raja in a case charging corruption in connection with administering hajj arrangements.  According to The News and Central Asia Online, the three are charged with arranging housing for Pakistan's Hajj pilgrims in Saudi Arabia at exorbitant rates, taking kickbacks for doing so, and making advance payments in violation of Pakistani policy. It is variously reported that the indictments relate to arrangements in 2009 or in 2010. (See prior related posting.)

Secular Coalition Seeking To Create State Offices

National Journal reported yesterday that the Secular Coalition for America has launched a drive to create state chapters of the organization in all 50 states. Up to now, SCA has focused on lobbying at the federal level.  The state chapters will be run by volunteers and will not have office space. They will focus on state and local legislation that threatens separation of church and state.

Lawsuits Seek Same-Sex Marriage Rights In Illinois

Two lawsuits were filed yesterday in federal district court in Illinois seeking to strike down provisions of Illinois law that bar the issuance of marriage licenses to same-sex couples and prevent legal recognition of same-sex marriages.  The suits allege that denial of same-sex couples the right to marry violates various provisions of the Illinois constitution.  As announced in an ACLU press release, one suit was filed by the ACLU on behalf of nine couples, and the other by Lambda Legal on behalf of 16 couples.  The suits are Lazaro v. Orr, (IL Cir. Ct., filed 5/30/ 2012) (full text of complaint) and Darby v. Orr,, (IL Cir. Ct., filed 5/30/2012) (full text of complaint). Illinois law provides for same-sex civil unions, but not same-sex marriages. (See prior posting.)

New York Transit Authority Settles Religious Accommodation Suit With Justice Department

The U.S. Department of Justice announced yesterday that it has reached a settlement agreement with the New York City Transit Authority in a Title VII religious discrimination case that the Department of Justice filed in 2004.  The suit alleges that after 9-11, NYCTA began enforcing its previously unenforced head wear policy in a discriminatory manner against Muslims and Sikhs.  The Transit Authority refused to accommodate religious beliefs that preclude attaching an NYCTA logo to a khimar or turban, moving non-complying employees out of public contact positions. Under yesterday's agreement, which still requires federal court approval, the Transit Authority must adopt new uniform head wear policies that allow employees in public contact positions to wear khimars, yarmulkes, turbans, kufis, skullcaps, tams and headscarves without attaching anything to them. It must also implement a new religious accommodation policy and train personnel in implementing it.  In addition, it must divide $184,500 in damages among current and former employees whose religious beliefs were not accommodated.

Judge Stops Murfreesboro Mosque Construction, Holding Inadequate Notice Given For Planning Commission Meeting

A Tennessee Chancery Court judge yesterday issued an opinion that stops, at least temporarily, the ongoing construction of a controversial mosque in Murfreesboro, Tennessee.  In 2011, the court dismissed all the challenges to the Rutherford County Regional Planning Commission's approval of building plans for the mosque, but allowed plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. (See prior posting.) Now in Fisher v. Rutherford County Regional Planning Commission, (TN Chancery, May 29, 2012), the court held that given the importance of the issue to be discussed at the the Planning Commission meeting, the county had given inadequate public notice of it. Reporting on the decision, The Tennessean says that the Commission can still reconsider the issue after proper notice, and again approve the mosque plans. After the state court decision, the Council on American-Islamic Relations called for the U.S. Justice Department to step in. In a press release, CAIR said: "the judge used phrases and reasoning which could be viewed as indicating that a higher degree of public notice is required for issues related to Tennessee Muslims.

UPDATE: CNN Wire reports that the leader of the Murfreesboro Islamic Center says that construction will continue until it receives a formal order to stop.  The judge in his May 29 opinion called for plaintiffs' counsel to prepare an order that the court will then issue.  A draft order was filed on May 30. Defendants will have 5 days to review it, after which the court may sign it.

Israeli Government To Begin Paying Salaries of Non-Orthodox Rabbis

In Israel, the Attorney General's office announced yesterday in an historic move that the government will begin to pay the salaries of some non-Orthodox rabbis, as it now does for Orthodox rabbis. Jerusalem Post reports the move comes in response to a recommendation earlier this month from the country's High Court of Justice. Regional Councils will now be able to pay Masorti and Reform rabbis for any communities who request them. Wages equal to that paid to Orthodox rabbis will be funneled through the Ministry of Sport and Culture, instead of through the Ministry of Religious Services that funds Orthodox rabbis. However, according to Haaretz, the arrangement applies only to regional councils and farming communities, and does not extend to large cities. Also "rabbis of non-Orthodox communities" will not have authority over issues of Jewish law.

First Suit Filed Under Hawaii's 2-Year Window For Child Sex Abuse Claims

In Honolulu last Thursday, the first lawsuit was filed under a Hawaii law that became effective in April (full text) giving a one-time 2-year window for filing of claims of sexual abuse against minors, even though the statute of limitations has otherwise run.  According to AP, the lawsuit was brought on behalf a man claiming sexual abuse by a priest at an all-boys Catholic school's overnight retreat in the 1980s when plaintiff was 13-years old. The suit claims that accused priest Gerald Funcheon was allowed unsupervised access to children at Damien Memorial School even though reports had been made to his order about inappropriate sexual conduct toward minors.

Indian Court Strikes Down Religious Groups' Backward Class Subquota

Last December, the government of India announced the creation of a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities-- Muslims, Christians, Sikhs, Buddhists and Zoroastrians-- within the existing 27% Other Backward Classes (OBC) set-asides for government jobs and education. (See prior posting.) Now, according to a report yesterday by the Economic Times, the Andhra Pradesh high court has struck down the sub-quota. It held that a sub-quota cannot be based on purely religious grounds. It said that "Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) do not form a homogeneous group." The sub-quota was widely seen as a political ploy to attract Muslim votes in legislative assembly elections that were upcoming at the time the sub-quota was announced. Indian Express reports that Minority Affairs and Law Minister Salman Khurshid says the court's decision will be appealed.

Recent Prisoner Free Exercise Cases

In Florer v. Bales-Johnson, (9th Cir., May 15, 2012), the U.S. 9th Circuit Court of Appeals dismissed an inmate's free exercise and RLUIPA complaints about his kosher diet, finding that he failed to raise a genuine dispute of material fact that the meals he received substantially burdened his ability to exercise his religion. (See prior related posting.)

In Nzaddi v. Department of Corrections, 2012 U.S. Dist. LEXIS 69510 (D MA, May 18, 2012), a Massachusetts federal district court permitted a Baha'i inmate to proceed against two named defendants on her claim that she was denied kosher meals that were required according to her religious beliefs.

In Bargo v. Kelley, 2012 U.S. Dist. LEXIS 69649 (ED AR, May 18, 2012), an Arkansas federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 69653, May 1, 2012) and denied a preliminary injunction in a case in which an inmate alleged that his free exercise, due process, and equal protection rights were violated when authorities refused to allow him to be interviewed by Indigo Films for a documentary.

In Benning v. Georgia, 2012 U.S. Dist. LEXIS 71813 (MD GA, May 23, 2012), a Georgia federal district court enjoined prison officials from enforcing their grooming policy in a way that completely banned an inmate who professed Orthodox Judaism from growing earlocks. The court held that it is sufficient that the inmate's religious beliefs are sincere. It is irrelevant that he is not Jewish under the criteria set out by Jewish religious law.

Missouri Religion Amendment Moved To August Ballot

The St.Louis Post Dispatch reported last week that Missouri Governor Jay Nixon, a Democrat, has decided that a proposed state constitutional amendment (full text) that guarantees the right to pray and express religious views on public property and in schools will be voted on in the August 7 primary election rather than the November general elections.  The legislative resolution proposing the amendment provided that it should appear on the ballot either in November or in a special election called by the governor.  Apparently the governor's timing was motivated by the likelihood that the amendment will attract social conservatives (mostly Republicans) to the polls, and would thus benefit the Republicans in the general election of it were on the November ballot. Wall of Separation also reports on the governor's move. (See prior related posting.)

Islamists Blame Copts For First Round Election Results In Egypt

AINA reported yesterday that many Egyptians, deeply dissatisfied with the choice for President they have in the upcoming run-off election, are blaming the Christian Copts.  Islamists are blaming the Copts for the fact that Ahmad Shafik, Hosni Mubarak's last Prime Minister, came in high enough to be in the run-off with Muslim Brotherhood candidate Mohamed Morsy. These critics have accused the Copts of being "traitors" and "anti-revolutionary." However, according to AINA, this assessment has been challenged:

Dr Emad Gad, MP and deputy director of Al-Ahram Centre for Strategic Studies, said this campaign against the Copts is a prepared strategy by the Muslim Brotherhood to increase the chances of their candidate in the run-off election, by promoting a lie that votes of the Copts helped Shafik to advance. "This is not true at all. The largest block of votes for Shafik was in the four provinces of the Delta, namely Sharkia, Gharbia, Menoufiah and Dakahila, where the Copts make up only 5% of the total population."

Meanwhile, CNN reports that yesterday several thousand protesters in Tahrir Square urged Egyptian courts to disqualify Shafik. Other protesters broke into Shafik's campaign headquarters and set it on fire. Three of the losing candidates in the first round have filed appeals with the election commission charging fraud. (AP) According to Bloomberg News, many youth groups and secularists who led last year's revolution favor Hamdeen Sabahi, a socialist candidate who came in third in the first round of the election. These activists want Shafik disqualified under a law that took away the political rights of some Mubarak era officials. Others want Morsi to step aside to allow Sabahi to run against Shafik.

Cert. Filed In Suit Over Prisoner's Right To Received NOI Newspaper

The Baton Rouge (LA) Advocate reports that a petition for certiorari has been filed with the U.S. Supreme Court in Leonard v. Louisiana. In the case, the 5th Circuit in a brief per curiam opinion (full text) held that prison officials were not justified in banning a prisoner from receiving Nation of Islam's newspaper The Final Call. Prison officials had imposed the ban because the paper contained "The Muslim Program" written by Elijah Muhammad. The 5th Circuit held: "While we do not agree that "The Muslim Program" is free of racially inflammatory language, the record here does not justify this order under circumstances where an objectionable page could be deleted and where this page has been included in all prior issues of the newspaper and is and always has been available to appellee." (See prior related posting.)

Guidelines on Bullying and Free Expression Released, Create Controversy

As reported by Education Week, last week a coalition of 17 religious, educational and civil rights groups, led by the American Jewish Committee and the First Amendment Center, released new guidelines on bullying in schools. An 11-page pamphlet titled Harassment, Bullying and Free Expression-- Guidelines for Free and Safe Public Schools is "intended to help public schools balance the need for school safety with the need for free expression." The next day, the Anti-Defamation League sent a letter to the Secretary of Education strongly criticizing the new guidelines.  The letter (full text) says in part:

the Guidelines issued this week emphasize students’ First Amendment rights over the responsibility to create a safe learning environment for all students – especially vulnerable minority, disabled, and LGBT students.  While we agree that students’ free speech and religious expression rights are important, we strongly disagree with the Guidelines’ direct implication that such rights have been given short shrift in current federal and state law and policy and need greater protection. 

The American Muslim has extensive background on the Guidelines and the controversy they have generated. [Thanks to Michael Lieberman for the lead.]

Kansas Governor Signs Bill Promoted As Anti-Sharia Measure

AP reports that Kansas governor Sam Brownback on May 21 signed into law H Sub SB 79. The legislation prohibits Kansas courts or tribunals from applying foreign law if that law would not grant the parties affected the same fundamental rights as they would have under the U.S. and Kansas constitutions, including equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage. Supporters of the bill have pressed it as a measure designed to prevent Sharia law from being used by Kansas courts, leading the Council on American Islamic Relations to suggest that the statute may be challenged. (See prior related posting.) The new legislation defines foreign law as:

any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction’s courts, administrative bodies or other formal or informal tribunals.

The legislation is based on a model act promoted by the American Public Policy Alliance.

Suit Challenges New Ten Commandments Monument

On Friday, a lawsuit was filed challenging a 5 foot tall stone Ten Commandments monument that was put up earlier this month by the county commission in the courtyard of the Bradford County, Florida Courthouse. The complaint (full text) in American Atheists, Inc. v. Bradford County, Florida, (MD FL, filed 5/25/2012), alleges that the monument, which was unveiled in conjunction with a religious prayer ceremony, violates the Establishment Clause. A press release from American Atheists announced the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

District Court Invalidates DOMA and Related Care Insurance Restrictions

In Dragovich v. U.S. Department of the Treasury, (ND CA, May 24, 2012), a California federal district court held unconstitutional Sec. 3 of the federal Defense of Marriage Act and federal provisions (26 USC Sec. 7702B(f)) that effectively bar states from permitting same-sex domestic partners or same-sex spouses from participating in state-maintained long-term care insurance policies. DOMA was defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) since the administration refused to defend its constitutionality.  In striking down the provisions, the court said in part:

the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest.  Accordingly, Plaintiff same-sex spouses are entitled to summary judgment that § 3 of the DOMA is invalid under the Constitution’s equal protection principles to the extent that the law blocks their access to the CalPERS long-term care plan....

Because Congress’s restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from § 7702B(f)’s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution’s equal protection guarantee.

Metro Weekly reports on the decision.

Document Leaks, Bank President's Ouster Create Crisis Atmosphere At Vatican

Two parallel developments in the Vatican were described yesterday by Reuters as a "widening scandal." Last Thursday the Supervisory Board of the Institute for the Works of Religion (the Vatican Bank) dismissed the president of the bank, Prof. Gotti Tedeschi. (Vatican press release.) Tedeschi says he was ousted because of his attempts to make the bank more transparent. The band has been attempting in recent years to meet international anti-money laundering standards. (See prior posting.) However Vatican officials say the ouster had nothing to do with that. Reuters says that instead it was the result of  "progressively erratic personal behavior" and his failure to defend the bank "in the face of inaccurate media reports".

Meanwhile, on Saturday the Pope's personal butler, Paolo Gabriele, was arrested (Vatican press release) in an ongoing investigation of theft of confidential papers that have been published. They allege cronyism and corruption among the Cardinals. (See prior posting.) AP reports that Gabriele has agreed to cooperate with investigators.

8th Circuit: Freethinkers Have Standing To Challenge 10 Commandments Monument

In Red River Freethinkers v. City of Fargo, (8th Cir., May 25, 2012), the U.S. 8th Circuit Court of Appeals held that a organization dedicated to promoting atheist and agnostic views has standing on behalf of its members to challenge a Ten Commandments monument that has stood for 50 years outdoors on city property in Fargo, North Dakota. City Council had originally decided to move the monument, but reversed its decision after an initiative petition to keep the monument on city property garnered over 5,200 signatures. In reaching its conclusion on standing, the court said:

The injuries to Freethinkers’s members are no doubt actual and imminent.  The City’s display of the Ten Commandments monument has continued now for fifty years, with no end in sight.  Those members have encountered the monument, causing them “to feel isolated and unwelcome in the city.” ... Furthermore, those injuries are personal to Freethinkers’s members.....

The City displays a Ten Commandments monument; it has enacted an ordinance prohibiting the removal of that monument; no other monument is so protected; and the City has a policy of not accepting other monuments in the mall where the Ten Commandments monument stands.... The claimed injury—direct and unwelcome contact with the monument—is “fairly traceable” to the alleged Establishment Clause violation....

The City’s assertion—that there is “no basis in law” for removal of the monument—is wrong.  If the City’s monument violates the Establishment Clause, then a court can order its removal....

By a 2-1 vote, the court remanded the case to the district court for further proceedings. Judge Shepherd, while agreeing that plaintiffs had standing, argued that the case should be dismissed on the merits:

The Commission’s initial decision to move the existing monument from its long-standing site can best be understood as an exercise in pragmatism—one intended to forestall a challenge to its decision not to accept Freethinkers’s offer to erect a “sister” monument.  In light of this background, no reasonable observer would conclude that the Commission’s adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance’s proponents.

AP reports on the decision.

Paper Criticizes Candidate Roy Moore's Involvement On Issue That May Come To State Supreme Court

An editorial in the Anniston, Alabama Star yesterday strongly criticized former Alabama Chief Justice Roy Moore, who is again a candidate for that position in the fall election, for becoming involved on one side of an issue that the Alabama Supreme Court may eventually be called to rule upon. The city of Sylvania, Alabama placed a verse from the New Testament-- "One Lord, One Faith, One Baptism"-- on the town's four Welcome sign. In April, the Freedom From Religion Foundation objected (full text of letter) and convinced the town to remove the signs. (FFRF press release.) Earlier this month, however, the town council voted to place the Biblical quotation back on the signs, and the Foundation for Moral Law, headed by former Chief Justice Moore, promised to defend the town's position.  A press release from the Foundation quotes Moore as saying: "The Freedom From Religion Foundation has an agenda to remove any acknowledgement of God or religion from the public square and are trying to bully towns like Sylvania with threatening letters that grossly misrepresent the Constitution." Here is a portion of Anniston Star's editorial on the matter:

One can — and should — question the propriety of an Alabama chief justice GOP nominee heading a foundation dedicated to a constitutional position on which he might one day have to rule. More important, one can — and should — wonder why Moore is personally getting involved in the first place.

Here is a prime example of the sort of controversy on which a chief justice should avoid taking a public stand. If and when matters such as this come before his court, he can then rule on them and explain in legal terms the reasoning behind his decision.

We hoped this was what Roy Moore would do. He has disappointed us again.

Mary Ann Glendon Appointed To USCIRF

On Wednesday, Senate minority leader Mitch McConnell appointed Mary Ann Glendon to the U.S. Commission on International Religious Freedom, according to a press release from USCIRF. Glendon is Professor of Law at Harvard University, President of the Pontifical Academy of Social Sciences, and former U.S. Ambassador to the Holy See. One vacancy, to be filled by President Obama, remains on the 9-member Commission. When USCIRF was reauthorized late last year, the authorizing legislation required 5 of its commissioners to resign. (See prior posting.)

California City Settles RLUIPA Suit With Buddhist Group

According to the Walnut Patch, the Walnut, California City Council voted Wednesday to approve a $900,000 settlement with the Chung Tai International Chan Buddhist Association in a RLUIPA lawsuit. In 2008, the city denied a conditional use permit to the Association, then known as the Chung Tai Zen Center.  The Buddhist group wanted to build a temple on land it owned.  The denial led the Zen Center to move to another facility in Pamona. The Justice Department filed a RLUIPA lawsuit, and the Buddhist Association then intervened as a plaintiff in order to attempt to recover damages. The Justice Department settled with the city last year, obtaining changes in the city's zoning policies. (See prior posting.) The settlement involves a public apology by the city as well as the monetary payment.

Court Upholds Termination of Catholic School Principal, Rejecting Retaliatory Discharge Claim

In Petschonek v. Catholic Diocese of Memphis, 2012 Tenn. App. LEXIS 330 (TN App., May 23, 2012), a Tennessee state appeals court dismissed a retaliatory discharge claim brought by the former principal of a Catholic school against the Diocese of Memphis.  Plaintiff claimed that the Diocese terminated her employment in retaliation for her refusal to remain silent about the misuse of $50,000 raised by parents to purchase computer equipment for student use. The court refused to decide whether plaintiff's claim was barred by the ministerial exception doctrine because the issue had not been  not been certified for interlocutory appeal, decided by the trial court, or raised as an affirmative defense by the Diocese. However the court added:

In so doing, we express no opinion on whether an action alleging common law retaliatory discharge, a cause of action intended to protect the public by encouraging employees to report an employer's illegal or unethical activity ... is sufficiently similar to a cause of action alleging retaliatory discharge in violation of the ADA, a statute protecting certain individuals from discrimination in the work place, to warrant application of the ministerial exception.

The court however granted summary judgment for defendant, holding that the retaliatory discharge doctrine applies only to employees at will. Plaintiff here was under contract. The contract permitted the Diocese to discharge plaintiff without cause before the end of the contract period, and entitled plaintiff to 30 days' pay if that happened.

George Washington's Letter On Religious Tolerance To Go Back On Public Display

CNN reported yesterday that George Washington's famous 1790 letter to the Hebrew Congregation in Newport, Rhode Island, will go back on public display after sitting in storage for nearly a decade.  The Forward, which has pressed for release of the letter, reported earlier this month as well on the agreement with the Morris Morgenstern Foundation. The arrangement permits the letter to be displayed at the National Museum of American Jewish History in Philadelphia for 3 months per year for the next 3 years. The letter (full text) is an early affirmation of religious tolerance in the United States:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter will be displayed this year as part of an exhibit titled "To Bigotry No Sanction: George Washington and Religious Freedom," which will run June 29 to September 30.

President Objects To House Passed Defense Bill's LGBT Related Provisions

The U.S House of Representatives last week passed, and sent to the Senate, HR 4310, the 2013 National Defense Authorization Act (full text.)  The bill contains two provisions relating to same-sex unions and to broader issues of conscience rights in relation to gays and lesbians.  Section 536 of the bill provides in part:

(a) Protection of Rights of Conscience- The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.....

(b) Protection of Chaplains- .... (2) No member of the Armed Forces may--

(A) direct, order, or require a chaplain to perform any duty, rite, ritual, ceremony, service, or function that is contrary to the conscience, moral principles, or religious beliefs of the chaplain, or contrary to the moral principles and religious beliefs of the endorsing faith group of the chaplain; or 

(B) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a direction, order, or requirement prohibited by subparagraph (A)....

Section 537 of the bill provides:

A military installation or other property owned or rented by, or otherwise under the jurisdiction or control of, the Department of Defense may not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Last week the White House issued a Statement of Administration Policy objecting to several provisions in the bill.  The Statement says in part:

The Administration strongly objects to sections 536 and 537 because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law.  Section 536 would prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline.  Section 537 would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.

LifeSite News on Tuesday reported on the controversy over these provisions.

New Hampshire High Court Upholds Partial Tax Exemption For Church Property

In Appeal of Liberty Assembly of God, (NH Sup. Ct., May 22, 2012), the New Hampshire Supreme Court held that under state statutory law, space in a house of worship must be used and occupied directly for religious training or for other religious purposes in order to be tax exempt.  It thus upheld a decision of the New Hampshire Board of Tax and Land Appeals exempting only 60% of a church's main building. The court observed, however: "that an apportionment inquiry 'must not be taken to an absurd extreme so that every square foot of a building is rigidly scrutinized.  Rather, . . . judgment is the touchstone.'" The court also rejected the argument that civil authorities would become unconstitutionally entangled with religion, in violation of the Establishment Clause, if they examine the religious uses and purposes of each room in the main building.  The Concord Monitor reports on the decision.

Egyptian Court Convicts 12 Christians In Sectarian Violence; Acquits Muslims

On Monday, Egypt's State Security Court sentenced 12  Christians to life in prison after they were found guilty of  sowing public strife, possessing illegal weapons and killing two Muslims in Minya province last April. Eight Muslims were acquitted of possessing illegal weapons and burning down Christian-owned homes and businesses. AP reports:

The religious tension in Minya spilled over into violence last year when a Muslim microbus driver, angered by a speed bump outside a wealthy Christian man's villa, got into a scuffle with security guards who beat him.

After returning to his village ... that evening, he rounded up the villagers who then gathered outside an ultraconservative Islamist group's main office there to protest his beating.... [T]he Christians nearby thought they were going to be attacked and shot from their rooftops down at the crowd, killing two and wounding two others.

For several days after, angry villagers torched dozens of Christian homes and stores.

The sentences are not appealable, and only the ruling military council can request a retrial.

Jury Holds Baptist Convention Liable For Abuse By Minister It Sponsored

The Orlando Sentinel and Louisville Courier Journal report on a jury's verdict last week in state court in Tavares, Florida, holding the Florida Baptist Convention liable for sexual abuse of a 13-year old boy by a former pastor.  Douglas Myers, who is serving a 7-year prison sentence after pleading guilty to molesting the boy in 2005, founded two churches in Lake County, Florida, after receiving funding and training from the Convention. The Convention ran a background check on Myers, but did not call his references or his prior churches where there had been allegations of sexual abuse against him. This is the first time the Convention has been held liable in a case like this. Baptist churches are run independently, but here the Convention was more involved since it sponsored him as a "church planter".

India's Parliament Allows Separate Registration of Sikh Marriages

The Tribune (Chandigarh, India) reports that both houses of India's Parliament this week passed a long-pending amendment to the Anand Karaj Act 1909 that will now allow separate registration of Sikh marriages solemnized under the Anand Karaj ritual.  The bill will become law when the President assents to it.  The new law however is only a first step toward Sikhs obtaining separate recognition.  India's Constitution (Art. 25) still defines Sikhs as Hindus.  The new law is not even a full separate Sikh marriage law, since it says nothing about divorce.  It merely will permit the central government to direct states to maintain separate marriage registers for Sikhs and designate separate bodies to register Sikh weddings.

Details on Monday's Lawsuits By Catholic Groups Challenging Health Insurance Mandate

As previously reported, on Monday 12 new lawsuits were filed around the country by over 40 Catholic institutions challenging the Obama administration's mandate requiring contraceptive coverage in health insurance policies these institutions offer to their employees and, in the case of universities, to students.  Here is the listing of all the plaintiffs in the 12 lawsuits with links to news releases from the lead litigant in each suit, and links to the full text of complaints in 10 of the suits. The Washington Post has a list of all the lawsuits with links to home page of each litigant.

(1) Archdiocese of Washington; Archbishop Carroll High School, Inc.; Catholic Charities of the Archdiocese of Washington, Inc.; The Consortium of Catholic Academies of the Archdiocese of Washington, Inc.; and The Catholic University of America.      (Full text of complaint.)

(2) University of Notre Dame.  (Full text of complaint.)

(3) The Catholic Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, Inc. and The Catholic Cemeteries Association of the Diocese of Pittsburgh.

(4) Michigan Catholic Conference; Michigan Catholic Conference Group Health Benefit Plan; Franciscan University. (Full text of complaint.)

(5) Diocese of Erie; St. Martin Center; Prince of Peace Center. (Full text of complaint.)

(6) Archdiocese of New York, Catholic Health Care System, Roman Catholic Diocese of Rockville Center, Catholic Charities of Diocese of Rockville Center, Catholic Health Services of Long Island. (Full text of complaint.)

(7) Catholic Diocese of Springfield, Illinois; Catholic Charities of Diocese of Springfield; Catholic Diocese of Joliet, Illinois; Catholic Charities of Diocese of Joliet. UPDATE: Catholic Charities of Archdiocese of Chicago added July 9. (Full text of complaint.)

(8) Catholic Diocese of Ft. Wayne-South Bend ; Catholic Charities; Saint Anne Home and Retirement Community; Franciscan Alliance; University of Saint Francis; Our Sunday Visitor.  (Full text of complaint.)

(9) Roman Catholic Diocese of Fort Worth. (Full text of complaint.)

(10) Archdiocese of St. Louis; Catholic Charities of St. Louis.  (Full text of complaint.)

(11) Roman Catholic Diocese of Dallas. (Full text of complaint.)

(12) Catholic Diocese of Biloxi; Resurrection Catholic School; Sacred Heart Catholic School; Catholic Social and Community Services; DeL'epee Deaf Center; Catholic Diocese of Jackson; Vicksburg Catholic School; St. Joseph Catholic School; Catholic Charities; St. Dominic-Jackson Memorial Hospital  (Full text of complaint.)

Article Faults Operation of School-Choice Scholarship Tax Credit Programs

Today's New York Times carries a long front-page story on abuses in school-choice scholarship tax credit programs. The programs generally give individuals or corporations tax credits for their donations to private non-profit scholarship organizations that, in turn, distribute scholarship funds to students in private schools, mostly religiously affiliated ones. Here is an excerpt from the extensive report:

Spreading at a time of deep cutbacks in public schools, the programs are operating in eight states and represent one of the fastest-growing components of the school choice movement. This school year alone, the programs redirected nearly $350 million that would have gone into public budgets to pay for private school scholarships for 129,000 students....

While the scholarship programs have helped many children whose parents would have to scrimp or work several jobs to send them to private schools, the money has also been used to attract star football players, expand the payrolls of the nonprofit scholarship groups and spread the theology of creationism, interviews and documents show. Even some private school parents and administrators have questioned whether the programs are a charade.

Most of the private schools are religious. Nearly a quarter of the participating schools in Georgia require families to make a profession of religious faith, according to their Web sites. Many of those schools adhere to a fundamentalist brand of Christianity. A commonly used sixth-grade science text retells the creation story contained in Genesis, omitting any other explanation. An economics book used in some high schools holds that the Antichrist — a world ruler predicted in the New Testament — will one day control what is bought and sold.

Vatican Says Leaking Of Confidential Letters Was A Criminal Act

Reacting to a recently published book, the Vatican press office last week issued a statement saying: "The latest publication of documents of the Holy See and private documents of the Holy Father can no longer be considered a questionable – and objectively defamatory – journalistic initiative, but clearly assumes the character of a criminal act." According to a report by CNA yesterday, the statement comes in response to the book by Italian journalist Gianluigi Nuzzi, Sua Santita (His Holiness) which sets out a series of leaked letters addressed personally to Pope Benedict XVI. Last month the Pope set up a special commission of 3 cardinals to investigate the source of the leaks.

Group Claims Baptist Church Violated Limits On Non-Profit Political Involvement

According to a press release yesterday from Americans United, the organization has written the Internal Revenue Service (full text of letter) asking it to investigate whether a Kentucky Baptist church has violated the rules that preclude Sec. 501(c)(3) non-profit organizations from becoming involved in political elections by endorsing or opposing candidates. At issue is the sermon delivered by Pastor Ronnie Spriggs of Hager Hill Freewill Baptist Church in Hager Hill, Kentucky in which he took issue with President Obama's backing of same-sex marriage and said:

We need to really be prayerful, and we need to get active. If you’ve ever opened your mouth, you better open it now. Between now and November, God’s people ought to thunder this country. We ought to let this country know that we will not be silent on these issues....

You know why that Obama said he believes that? Because the polls represent more people in the United States believe they ought to marry than others do. So this is an advantageous time. You know what we got to show him? There’s more saved people in the United States then he thinks there are. And if we don’t voice our opinion now, we’ll lose our country….

New Lawsuits Challenge Health Insurance Contraceptive Coverage Mandate

Politico reports that 12 new lawsuits were filed yesterday around the country by some 40 Catholic institutions challenging the Obama administration's mandate requiring contraceptive coverage in health insurance policies these institutions offer to their employees and, in the case of universities, to students.  Among the suits-- all coordinated by the Jones Day law firm-- is one filed in federal district court in Indiana by the University of Notre Dame. (Full text of complaint.) Commenting on the lawsuits (full text of statement), Cardinal Timothy M. Dolan, president of the U.S. Conference of Catholic Bishops, said:

We have tried negotiation with the Administration and legislation with the Congress – and we’ll keep at it – but there's still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.....

Move of Prayer To Precede City Council Meeting Draws Protest

Mount Vernon, Ohio's city council has traditionally opened its 7:30 meetings with a prayer.  Yesterday's Columbus Dispatch reports that after council received a letter from atheist Ryan Kitko, a graduate student at Ohio State University, asking council to drop the prayer in order to respect the city as a diverse community, council president Bruce Hawkins moved the prayer 2 minutes earlier so it would precede the meeting. However, near the end of the council meeting, 4 council member spoke out against the change, and complaints from members of the public ensued.

Poland's Agriculture Minister Rejects Challenge To Ritual Slaughter

Poland's Agricultural Minister Marek Sawicki said last week that he rejects demands of animal rights activists to end kosher and halal slaughter in Poland.  He says that ritual slaughter is permitted under European Union law, and that banning it would be inconsistent with Poland's constitutional protection of religious freedom  According to JTA, the minister of agriculture has exempted ritual slaughter from the requirement that animals be stunned before slaughter. Activists have asked the country's prosecutor to determine if this violates Polish law. In connection with the controversy, a Polish newspaper charges that the slaughterhouses where ritual slaughter is performed are owned by a colleague of the Agriculture Minister.

Canon Lawsuit Planned Against Georgetown University Over Deviations From Doctrine

CNA yesterday reported on the petition posted online at the website  of the newly formed Father King Society to Make Georgetown Honest, Catholic and Better. Founded by Georgetown alumnus William T. Blatty, author of the best-selling book The Exorcist, the organization is seeking to file a canon law lawsuit seeking a declaration that Georgetown University is no longer entitled to call itself Catholic or Jesuit, or alternatively seeking a Visitation to correct what is described as the University's:

twenty-one year refusal to comply fully with the law of the Church through the implementation of the general norms of Ex corde Ecclesiae and its eleven year non-compliance with certain particular norms adopted for the United States, which has led directly and indirectly to the tolerance and promotion of deviations from authentic doctrinal and moral teachings by Georgetown University authorities and a long series of Scandals to the faithful through actions inconsistent with a Catholic identity.

The organization's website details more specifically Blatty's concerns. The planned canon lawsuit was announced on the same day the HHS Secretary Kathleen Sebelius-- a controversial figure among Catholic institutions-- spoke at an awards ceremony during Georgetown's commencement weekend.

Recent Articles of Interest

From SSRN:

• Jill I. Goldenziel, Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, (American Journal of Comparative Law, Forthcoming).
• Jeremy Waldron, What is Natural Law Like? (May 17, 2012).
• Michael Stokes Paulsen, The Priority of God (a Theory of Religious Liberty), (Pepperdine Law Review, 2012, Forthcoming).
• Erica A. Holzer, Defense of Marriage Acts: A Fifty State Survey, (March 5, 2012).
• Erica A. Holzer, DoMA Statutes and Same-Sex Divorce Litigation, (March 5, 2012).
• Pramudya A. Oktavinanda, Choice of Financing Schemes in Islamic Finance Industry: Failed Legal Formalism and Economic Inefficiencies, (May 14, 2012).

From SmartCILP:

• Pascale Fournier, Pascal McDougall and Merissa Lichtsztral, Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel, 18 William & Mary Journal of Women & Law 333-362 (2012).
• Janine Marie Idziak, Forgoing Drugs on Grounds of Cost: A Perspective from Catholic Health Care Ethics and Social Teaching, 13 Marquette Elder's Advisor 89-105 (2011).
• David E. Steinberg, The Myth of Church-State Separation, 59 Cleveland State Law Review 623-644 (2011).

Recent Prisoner Free Exercise Cases

In Mitchell v. Quarterman, (5th Cir., May 15, 2012), the 5th Circuit rejected an inmate's religious objections to a prison's policy of permitting female guards to monitor male inmates while they shower and use the rest room.

In Miller v. Collier, 2012 U.S. Dist. LEXIS 67562 (D MD, May 15, 2012), a Maryland federal district court rejected a claim by an inmate who had been involuntarily committed to a psychiatric hospital that his free exercise rights were violated by the temporary confiscation of a cross pendant and a metal rope necklace. The cross was later returned to him on a string.

In Taylor v. Hubbard, 2012 U.S. Dist. LEXIS 67853 (ED CA, May 15, 2012), a California federal magistrate judge permitted an inmate to proceed with his free exercise and RLUIPA challenges to prison rules that prevented him from having tobacco to use in his Wheel of Love Ceremony. The rules limited him to purchasing religious products from a single vendor, limited the amount that could be purchased, and prohibited him from having tobacco in his cell or on his person.

In Jackson v. Thomas, 2012 U.S. Dist. LEXIS 67821 (CD CA, May 15, 2012), a California federal district court adopted a magistrate's recommendation to dismiss (2012 U.S. Dist. LEXIS 67838, April 24, 2012), agreeing that an inmate sentenced to a state hospital as a sexually violent predator had not substantiated his allegation that he was denied the right to attend religious services during the period that his access level was reduced.

In Solomon v. Department of Financial Services, 2012 U.S. Dist. LEXIS 67479 (ND FL, May 15, 2012), a Florida federal district court adopted a magistrate's recommendations (2012 U.S. Dist LEXIS 67480, April 9, 2012) and dismissed a suit in which an inmate claimed 8th Amendment and free exercise violations after he developed paranoia about prison food following an incident in which he found meat mixed in with his supposedly vegan food.

In Gillum v. Cate, 2012 U.S. Dist. LEXIS 68661 (ED CA, May 16, 2012), a California federal magistrate judge rejected an inmate's habeas corpus petition in which the inmate claimed that the California Board of Parole Hearings violated the Establishment Clause by denying him parole based on his failure to attend a religious-based Alcoholics Anonymous program. Petitioner had not objected to attending, and he could have attended alternative programs.

In Doss v. Maples, 2012 U.S. Dist. LEXIS 68292 (ED AR, May 16, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 68294, Feb. 29, 2012) and permitted an inmate to proceed with her free exercise and equal protection challenges to the prison mail room's seizing her copy of "Strong's Concordance," which she needs to practice her religious beliefs.

In Mootry v. Flores, 2012 U.S. Dist. LEXIS 68615 (ED CA, May 15, 2012), a California federal magistrate judge recommended permitting a Muslim inmate to proceed with his free exercise claim that Muslim prisoners were denied Jumu'ah services. Dismissal was recommended as to various other claims, including failure to provide a Muslim or inmate chaplain.

In Sweet v. Northern Neck Regional Jail, 2012 U.S. Dist. LEXIS 68513 (ED VA, April 18, 2012), a Virginia federal district court rejected a Muslim inmate's challenge to a jail policy that prohibits Muslims from praying in Arabic when inmates from different housing units and of different security levels are together.

Article Explores Impact of Mormonism On Romney's Political Beliefs

Today's New York Times carries a long front-page article on the importance to presumptive Republican presidential nominee Mitt Romney of his Mormon religious faith.  Romney's views in numerous areas are depicted as an application of Mormon religious teachings to the secular realm:

Mr. Romney’s penchant for rules mirrors that of his church, where he once excommunicated adulterers and sometimes discouraged mothers from working outside the home. He may have many reasons for abhorring debt, wanting to limit federal power, promoting self-reliance and stressing the unique destiny of the United States, but those are all traditionally Mormon traits as well.

Outside the spotlight, Mr. Romney can be demonstrative about his faith: belting out hymns... while horseback riding, fasting on designated days and finding a Mormon congregation to slip into on Sundays, no matter where he is....

... [W]holesomeness is deeply authentic to Mr. Romney, whose spiritual life revolves around personal rectitude. In Mormonism, salvation depends in part on constantly making oneself purer and therefore more godlike....

Having a higher purpose is part of what motivates Mr. Romney, many of those close to him say, and gives him the wherewithal to suffer the slings and arrows of political life..... And while voters tend to see Mr. Romney as immensely fortunate, those close to him say that he never forgets he is a member of an oft-derided religious minority. 

Muslim Summer Camp Entitled To Tax Exemption

In Camp Retreats Foundation, Inc. v. Township of Marathon, (MI App., May 15, 2012), a Michigan state appellate court reversed the state's Tax Tribunal and found that a Muslim summer camp is entitled to a property tax exemption as a charitable institution.  The Tax Tribunal had held that the camp primarily promoted sports and recreation. The court disagreed, finding that the camp qualified under the definition of a charity:

Despite the articles' emphasis on athletic activities for youth, Camp Retreats' central focus is on providing the Islamic community with religious experience in a camp environment..... Contrary to the Tribunal’s reasoning, the presence of fences on the property and signs warning against trespassing bear no relationship to whether Camp Retreats offers its charity generally and without restriction.

Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

2 New USCIRF Appointments Announced

According to a press release issued on Thursday by the U.S. Commission on International Religious Freedom two new appointments to the 9-member Commission have recently been made. On May 11, President Obama announced his appointment of the Reverend William J. Shaw to his second term on the Commission.  On May 15, Speaker of the House John Boehner announced his appointment of lawyer and foreign policy expert Elliott Abrams.

Contribution To Church Denied Deductibility For Inadequate Receipt

In Durden v. Commissioner of Internal Revenue, (T.C., May 17, 2012), the U.S. Tax Court denied a $25,171 tax deduction for contributions to the Nevertheless Community Church made in 2007 by David and Veronda Durden. While the taxpayers produced records of their contributions, including canceled checks, the IRS denied the deduction for failure to comply with Sec. 170 of the Internal Revenue Code.  That section, and regulations under it, require an acknowledgement of the contribution from the charity dated before the return was filed or due. The acknowledgement must indicate the amount contributed and whether the charitable organization provided any goods or services in return for the contribution.  Taxpayers had an acknowledgement from the Church dated January 2008 (before their return was filed), but the acknowledgement failed to indicate whether goods or services had been provided.  They also had a second acknowledgement that did indicate no goods and services were provided, but that acknowledgement was dated June 2009 (after their return had been filed). [Thanks to Steven H. Sholk for the lead.]

Court Rejects Compelled Religious Speech Challenge To Oklahoma License Plates

In Cressman v. Thompson, 2012 U.S. Dist. LEXIS 68236 (WD OK, May 16, 2012), and Oklahoma federal district court rejected a claim by an Oklahoma driver that the picture on the state's standard license plates compel him to express a message contrary to his religious beliefs.  The plates carry the image of a statue of a Native American shooting an arrow into the sky. Plaintiff alleges that the image retells the story of a Native American who believed in multiple deities, the divinity of nature and the ability of humans to use sacred objects to convince gods to alter nature. The court concluded, however:

A reasonable viewer simply could not glean a religious message from the Native American image on the license plate or impute such to the driver. Observers of the image "are presented with a symbol that has various and somewhat imprecise ideas associated with it." ... They are not presented with a "particularized message" that is likely, much less highly likely to be "understood by those who view[] it."

European Court Upholds Spain's Firing of Married Priest As Teacher

In Fernández Martínez v. Spain, (ECHR, May 15 2012), (opinion in French, English press release) the European Court of Human Rights in a Chamber judgment (which is appealable to the Grand Chamber) upheld the decision not to renew the contract of a priest to teach religion in a Spanish state high school.  The action was taken by the local bishop after it was publicly disclosed that the priest, who had been granted a dispensation from the requirement of celibacy (he was married with 5 children), was a member of the Movement for Optional Celibacy. The court rejected the priest's argument that the protections of respect for his private life in Art. 8 of the European Convention on Human Rights invalidated the contract termination.  The court, instead, that the Church's freedom of religion (Art. 9) takes precedence, and (according to the press release): "The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract." Turtle Bay and Beyond blog reports on the decision. [Thanks to Alliance Alert for the lead.]

Kuwait's Emir Blocks Proposed Constitutional Amendment Requiring Islamic Law

According to a report today in The Peninsula, the Emir of Kuwait-- whose approval is needed for any constitutional change-- has blocked a proposal to amend the constitution to require all Kuwaiti legislation to comply with Islamic law.  The amendment was put forward by the Islamic Justice Block in Parliament in a proposal signed by 31 of Parliament's 50 members. Kuwait's Constitution (Art. 2) already provides that : "The religion of the State is Islam, and the Islamic Shari'a shall be a main source of legislation." 85% of Kuwait's population is Muslim.

2nd Circuit Creates Fact-Specific Test For Constitutionality of Prayer At City Council Meetings

In Galloway v. Town of Greece, (2d Cir., May 17, 2012), the U.S. 2nd Circuit Court of Appeals, in a case of first impression for it, created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies with prayer. Here the court held that the prayer policy as implemented by Greece, New York, violates the Establishment Clause because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." The court explained:

a municipality cannot— in our judgment— ensure that its prayer practice complies with the Establishment Clause simply by stating, expressly, that it does not mean to affiliate itself with any particular faith. Nor can a municipality insulate itself from liability by adopting a lottery to select prayer-givers or by actively pursuing prayer-givers of minority faiths whose members reside within the town. Similarly, there is no substantive mixture of prayer language that will, on its own, necessarily avert the appearance of affiliation. Ultimately, municipalities must consider their prayer practices in context and as a whole.... 

We do not hold that the town may not open its public meetings with a prayer or invocation.... Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.”... Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.... [I]t seems to us that a practice ... that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief—is fully compatible with the First Amendment.

... [However, a] legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause.  Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.

New York Law Journal reports on the decision.

Professor Sues Over University's Reaction To His Criticism of Muslims

AP reported yesterday on a lawsuit filed on May 10 in an Indiana state court by an Orthodox Jewish professor, Maurice Eisenstein, who claims that other faculty and administrators at Purdue University Calumet conspired to ruin his reputation over comments he made in the classroom and on Facebook.  The comments were critical of Muslim reactions to killing of Christians in Nigeria and to insulting the prophet Muhammad.  Two other faculty filed complaints against Eisenstein. A university investigation cleared Eisenstein of charges that he had violated the school's policy against discrimination and harassment. But he was reprimanded for action considered retaliation against the two faculty members who had filed complaints against him.  In last week's lawsuit, Eisenstein claims that the university violated his free speech and free exercise of religion protected by the Indiana constitution, and his right of privacy by making the disciplinary action against him public. He also claims the university's procedures for handling harassment complaints are arbitrary.

Israeli Council To Recommend Memorial Day Reading Omit "God"

Haaretz reports today that in Israel, the Public Council for Soldiers' Commemoration will recommend to Defense Minister Ehud Barak that in Memorial Day ceremonies at military cemeteries the service use a remembrance reading that does not mention God. For many years, ceremonies often used a reading written in the 1920's by Labor Zionist leader Berl Katznelson. Modeled on the traditional Yizkor prayer in remembrance of the dead, Katznelson's version began with the words "Yizkor Am Yisrael" ("May the nation of Israel remember").  After the Six Day War, IDF Chief Rabbi Shlomo Goren changed the verse to read:  "Yizkor Elohim" ("May God remember").  Last year a secular mother of a fallen soldier objected to the version mentioning God, and a public debate followed. (See prior posting.) In this year's ceremonies, the reading was omitted entirely because of the dispute. Many families have complained about that. Under the new recommendation, the original version will officially be part of future ceremonies.

11th Circuit: Christian School's Reason For Firing Pregnant Teacher Is Jury Question

In Hamilton v. Southland Christian School, Inc., (11th Cir., May 16, 2012), the U.S. 11th Circuit Court of Appeals reversed the trial court's dismissal of a lawsuit by a former teacher at a Christian school in St. Cloud, Florida, who was fired after she became pregnant. The school claimed that she was fired because she engaged in pre-marital sex, marrying only after she was pregnant. Plaintiff claims that the real reason the school fired her was because of her pregnancy, and the difficulty in replacing a teacher who takes maternity leave mid-year. Explaining the importance of the distinction, the court said: "Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant." The court held that the real reason plaintiff was fired is an issue that needs to be decided by a jury. In the course of its opinion, the court pointed out that the school might have urged dismissal by invoking the ministerial exception doctrine. However, since it did not raise the issue or make any argument in its brief about it, the court refused to decide whether the exception applies here. Wall Street Journal reports on the decision.

Bishops Submit Comments On Proposed Contraceptive Coverage Mandate

The U.S. Conference of Catholic Bishops yesterday submitted its formal comments on the Department of Health and Human Services Advance Notice of Proposed Rulemaking relating to health insurance coverage of contraceptive services. The Advance Notice includes the Administration's proposal for insurance companies to furnish contraceptive coverage directly, at no additional cost, for employees of non-profit religious institutions that have religious objections to financing such coverage. In its 21-page letter of comment (full text), the Catholic bishops set out numerous objections. In an accompanying press release, USCCB outlined its 6 main points:

• Contraceptive services are still included in the list of mandated preventive services. 
• Religious employers fully exempted from the mandate are defined too narrowly.
• Many with conscientious objections, such as religious and secular insurance companies, religious and secular for-profit employers, and  individual policy-holders, are ineligible for the exemption.
• Even under the Administration's expanded accommodation of non-profit religious organizations, secular employers are still fully under the coverage mandate.
• Non-exempt religious organizations will still be required to provide plans that serve as a conduit for contraceptives and sterilization procedures to their own employees, and their premiums will help pay for those items.
• The proposals raise questions of whether employers must be independently exempt for their employees to participate in an exempt plan, whether religious objection to some, but not all, contraceptives should be accommodated and whether a past practice of mistakenly or unknowingly covering contraceptives should disqualify one from accommodation.

D.C. Police Department Allows Sikh Officers To Wear Turbans, Beards

The Washington Post reports that yesterday the D.C. police force became the first police department in the country that proactively, and not in response to a lawsuit, is allowing Sikh police officers to wear beards and religious items such as turbans. The policy change came just as a Sikh reserve officer is about to graduate from the police academy. Police Chief Cathy Lanier called the change a common sense decision.  Under the new policy, turbans must match the police uniform and beards must be neatly tied back. The policy also allows Sikh officers to wear or carry other religious articles, including wearing a kirpan under their clothing. SALDEF issued a press release praising the new policy and crediting 8 years of cultural awareness training of the police department with laying the groundwork for the change.

Pastor Sues For Defamation Over Critical Blog Posting

KTAU News reported last week on a defamation lawsuit filed by Beaverton, Oregon Grace Bible Church Pastor Charles O'Neal against a former congregant and her daughter over postings on the former congregant's blog. Three commenters on the blog were also named as defendants.  When Julie Anne Smith and her family left the church, she says that other church members were told to end all contact with her.  So Smith started a blog called Beaverton Grace Bible Church Survivors on which she criticized the church, calling it a spiritually abusive environment.  Excerpts from the complaint in the case contending that these postings were defamatory, are the subject of a more recent blog post by Smith. The lawsuit seeks $500,000 in damages.  Apparently Smith has filed an anti-SLAPP motion seeking to get the case dismissed. [Thanks to Bryan D. Wassom for the lead.]

Iranian Clerics Issue Fatwa Justifying Killing of Anti-Government Rapper

The Wall Street Journal reports today that two influential clerics in Iranian have issued  fatwas that in effect declare that rapper Shahin Najafi has committed blasphemy against Ali an-Naqi., the 10th saint of Shiite Islam. This means that killing Najafi is justified. The fatwas came because of Najafi's rap song, Naqi, released online on May 7 which calls on the saint to save Iran from its current rulers. According to the Journal report:

After Mr. Najafi released his song ... Iranian media and conservative bloggers said it was in violation of an earlier fatwa calling for the execution of anyone who blasphemes the 10th saint of Shiite Islam.... A subsequent fatwa by another grand ayatollah declared that a singer who had been insulting the saint was guilty of blasphemy—giving the green light for his followers to kill Mr. Najafi, though the fatwa didn't mention the rapper by name. Both rulings have been repeated in Iranian media.

An Iranian website, Shia-Online, has offered $100,000 for Najafi's killing and others have pledged further rewards. Fatwas are issued independently of the government, but those who carry them out are not punished under Iranian law.

NLRB Finds No Violation In Requiring Clocking Out For Prayer Breaks

The NLRB's Associate General Counsel has issued an Advice Memorandum dated April 12 (full text) concluding that the Hertz Co. did not violate the National Labor Relations Act when it required Somali Muslim employees at the Seattle-Tacoma (WA) airport to clock out and in for their prayer breaks. The memo concluded that "the employer did not unlawfully implement a midterm contract change ... because it had a sound arguable basis for its interpretation of the contract as permitting it to require that practice." The memo also concluded that Hertz did not violate the NLRA by suspending, and ultimately discharging, the employees who insisted that they would continue to refuse to clock out for prayer breaks. (See prior related posting.) [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Court Says Opening Council Meetings With Lord's Prayer Is Unconstitutional; Urges Compromise

In Mullin v. Sussex County, Delaware, (D DE, May 15, 2012), a Delaware federal district court granted a preliminary injunction barring Sussex County Council from opening its meetings with the recitation of the Lord's Prayer. The court found it likely that

Council's practice of opening each meeting with a recitation of this distinctly Christian Lord's Prayer violates the Establishment Clause because it constitutes government endorsement of the Christian faith. The fact that The Lord's Prayer has been the only prayer recited at the beginning of Council meetings for over six years is likely to be found to demonstrate that the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.

However, on its own initiative, the court stayed the effectiveness of the preliminary injunction for one month, expressing the hope that " during this period the parties may confer- perhaps with the assistance of one of this Court's judicial officers as mediator- and attempt to agree upon how to preserve the Council's practice of opening its meetings with a prayer but to do so in a manner that is consistent with the United States and Delaware Constitutions." Americans United issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Israeli Court Holds Jewish Resident Cannot Obtain Citizenship Outside Law of Return

According to Haaretz, in Israel on Tuesday a district court in Haifa rejected an appeal by 89-year old  Professor Uzzi Ornan, founder of the League against Religious Coercion in Israel, seeking to force the Interior Ministry to recognize his Israeli citizenship on the ground he was born in Israel, not because he is Jewish. Ornan was born in Jerusalem, but was exiled by the British in 1944 to Eritrea. When he returned to Israel in 1948, he insisted that in the first census he be listed as having no religion (even though he was born to a Jewish mother), and that his nationality be listed as Hebrew. The Law of Return (full text) provides that its citizenship provisions also extend to every Jew who immigrated to Israel before the passage of the Law of Return in 1950.  It defines as a Jew, anyone "who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." In this week's case, Ornan insisted that he was "of another religion."  The State Prosecutors Office argued, however, that the fact Ornan is listed in the population registry as having no religion does not affect his being Jewish under the halachic test set out in the Law of Return. The court agreed.

Belarus Denies Death Row Inmates Time For Last Rites and Religious Funerals

Forum 18 reported yesterday on the continuing religious freedom problems relating to death row prisoners in Belarus. Condemned prisoners are told the date and time for their execution only at the last minute. They do not have time to receive a visit from a priest, make confession or take communion. Also bodies of executed prisoners are not handed over to families for burial, and the families are not informed of the place of burial.  This makes it very difficult for families to arrange for a religious funeral for the executed prisoner.

Chicago Archdiocese Is Sued Over Abuse From 30 Years Ago

CBS Chicago reported yesterday that a new lawsuit has been filed against the Catholic Archdiocese of Chicago.  In it, plaintiff Martin Yanick claims that nearly 30 years ago as an 11-year old altar boy he was abused by the now-deceased Rev. John Jordan at Chicago's St. Adrian Parish. According to Yanick, the priest told him that the molestation would cleanse him of his sins and mistakes as an altar boy. The suit which asks for at least $350,000 in damages alleges negligence, fraudulent misrepresentation, failure to protect children from predatory priests and failure to uphold the church’s special relationship with congregants.  It claims that as the Archdiocese failed to respond to sex abuse allegations made as early as 1976, and that it retained pedophile priests without warning parishioners.

Canadian Catholic Bishops Issue Letter On Religious Freedom

Yesterday the Canadian Conference of Catholic Bishops released a Pastoral Letter on Freedom of Conscience and Religion (full text). The 12-page letter, written by the CCCB's Permanent Council was summarized in part by the CCCB as follows:

The letter is largely occasioned by the spread in our own country of an aggressive relativism that actively seeks to force its own view of truth on others. It attempts to relegate religious belief to the private sphere, and considers religion to be insignificant, alien or even destabilizing. Legitimate secularity is open to the engagement of religious beliefs and faith communities in public debate and civic life. Radical secularism, however, excludes religion from the public square. This disfigured view of the secular is becoming more militant in attempting to silence religious believers when their views contradict its own, particularly on issues of education, human life and the family. It is highly hostile to a truly democratic and pluralist society, in that it tolerates only its own voice and tries to silence all others.

The pastoral letter, addressed to everyone of good will, calls on Catholics, all believers, and even those of no faith, 1) to affirm the right of religion to be active in the public square, 2) to maintain healthy Church-State relations, 3) to form consciences according to objective truth, and 4) to protect the right to conscientious objection The letter also encourages all faith communities to contribute to the formulation of public policy and the common good, and concludes by exhorting believers not to compromise their convictions but to stand up for their faith, even if they must suffer for it.

Fine On Attorney For Anti-Catholic Statements In Court Filing Upheld

According to yesterday's St. Paul Pioneer Press, a Minnesota federal district court has upheld the action of a bankruptcy judge who imposed a fine of $5000 on attorney Rebekah Nett for filing a legal memorandum with the bankruptcy court containing bigoted anti-Catholic statements. (See prior posting.) Nett said that the offending memorandum was written by her client, but the district court held that Nett "stuck her head in the sand" when she signed off on the memo.

Obama Campaign Hires Religious Outreach Director

CNN reported yesterday that the Obama re-election campaign is hiring a staffer from the White House Office of Faith Based and Neighborhood Partnerships to be the campaign's religious outreach director. Michael Wear has resigned his position as executive assistant to the executive director of the White House faith-based office, and will join the Obama campaign in Chicago as its Faith Vote Director. This report follows one in the New York Times yesterday that just two hours after announcing his support for same-sex marriage last week, the President had a conference call with eight African-American pastors to explain how he had reached his decision.