Court Refuses TRO Against Contraceptive Coverage Mandate In Challenge By For-Profit Senior Care Companies

In Briscoe v. Sebelius, (D CO, Feb. 27, 2013), a Colorado federal district court refused to grant a temporary restraining order to a for-profit corporation, two related for-profit LLCs and their evangelical Christian owner who were challenging the application of the Affordable Care Act contraceptive coverage mandate to them. The companies manage and operate senior care assisted living centers and skilled nursing facilities, and offer a self-insurance plan to their over 200 employees. Business owner Stephen Briscoe Briscoe says that his religious beliefs prevent him from including coverage for contraceptives, abortifacients, and sterilization procedures in his companies' insurance plans. The court concluded that plaintiffs' had not shown a substantial likelihood of success on the merits of their claims.

Rejecting plaintiffs' claim under the Religious Freedom Restoration Act, the court held that "secular, for-profit corporations neither exercise nor practice religion." It went on to reject the claim that the mandate imposes a substantial burden on the business owner's practice of religion:

Briscoe claims a substantial burden based on what his companies must do, rather than what he himself must do. The AHCA’s mandate does not prevent Briscoe from personally exercising his religion....  [A]ny burden Briscoe claims on his ability to exercise his religion based on his companies’ compliance with the AHCA mandate, is slight and attenuated. Further, Briscoe’s argument implicitly requests that I disregard the distinction between a corporation and its officers and owners. Briscoe cannot use corporate status to shield himself from liability and at the same use it as a sword to assert an RFRA claim.

The court also rejected plaintiffs' 1st Amendment free exercise, free speech and Establishment Clause challenges.

Texas Diocese's Challenge To Contraceptive Coverage Mandate Dismissed On Ripeness Grounds

In Roman Catholic Diocese of Dallas v. Sebelius, (ND TX, Feb. 26, 2013), a Texas federal district court dismissed on ripeness grounds a challenge by the Catholic Diocese of Dallas to the contraceptive coverage mandate under the Affordable Care Act. The court held that while plaintiff at the time of filing the lawsuit faced sufficiently imminent injury to have standing, subsequent developments require a dismissal for lack of ripeness. The government's Feb. 2013 Notice of Proposed Rulemaking undermine a realistic and pragmatic consideration of the issue at this time.

Canadian Supreme Court Upholds Key Part of Saskatchewan's Hate Speech Law

In Saskatchewan Human Rights Commission v. Whatcott, (Sup. Ct. Canada, Feb. 27, 2013), the Supreme Court of Canada, in a 116-page opinion, upheld the constitutionality of a key provision in the Saskatchewan Human Rights Code, Sec. 14.  However it invalidated a portion of the statute's language.  At issue in the case were 4 flyers critical of homosexuality published and  distributed by William Whatcott. The Supreme Court concluded that 2 of the flyers violated the Saskatchewan ban, while two other flyers did not.

Sec. 14 in part bars publication of any statement

that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

The court held that while this provision imposes limitations on freedom of expression and conscience, the limitations are permissible under Sec. 1 of the Charter of Rights and Freedoms that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Court said in part:

[H]ate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.... Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy....

The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(b) of the Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hateful expression in private communications between individuals....

The fact that s. 14(1)(b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad.... [T]he preventive measures found in human rights legislation reasonably centre on effects, rather than intent.

However, the court found that some of the prohibitions in Sec. 14 go too far:

[E]xpression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code ... unjustifiably infringe freedom of expression.... and must be struck from s. 14(1)(b)....

 The Globe and Mail and AFP report on the decision.

Dutch Court Upholds Fine On Orthodox Jew For Failing To Carry ID On Sabbath

AP reported Tuesday that in the Netherlands, an appeals court held that a 2005 law which makes it mandatory to carry an identification card and show it to police on request does not exempt individuals who fail to carry the ID card for religious reasons. The Hague Appeals Court upheld a 60 Euro fine imposed on an Orthodox Jewish man who could not produce the ID card for police on the Sabbath because it was against his religious beliefs to carry anything on the Sabbath. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Ohio High Court Hears Oral Arguments On Fired Science Teacher's Rights

The Ohio Supreme Court yesterday heard oral arguments (video of full arguments) in Freshwater v. Mount Vernon City School District Board of Education.  In the case, a state appeals court upheld the firing of John Freshwater, a middle school school science teacher. The school board based the firing on Freshwater's injecting his religious views, including belief in Creationism, into the classroom and for insubordination in failing to remove certain religious materials from the classroom after being ordered to do so by the school board. (See prior posting.) The oral argument preview posted by the Ohio Supreme Court describes the question at issue as follows:

Did the firing of a public school teacher for violating a school district policy that prohibits teachers from distributing extracurricular materials of a religious nature to students in the classroom or endorsing the beliefs or principles of any religion in the course of instructing students violate the teacher’s right to freedom of speech and freedom of religion under the First Amendment of the U.S. Constitution?

AP and the Columbus Dispatch, reporting on yesterday's oral arguments, said that the Justices particularly questioned David Kane Smith, attorney for the school's insurance company, who argued the case for the school board.

4th Circuit Upholds Regulation of Fortune Tellers Over 1st Amendment Objections

In Moore-King v. County of Chesterfield, Virginia, (4th Cir., Feb. 26, 2013), the U.S. 4th Circuit Court of Appeals upheld against various constitutional challenges a Virginia county's regulation of fortune tellers. The regulations require fortune tellers to obtain a license and business permit, and to obtain a conditional use permit in order to locate their business in specifically zoned areas.  The court held that while the 1st Amendment's free speech clause gives some protection to fortune telling, here the county has merely enacted a generally applicable licensing and regulatory scheme regulating professional speech. The court also rejected the argument that the regulation infringes the free exercise of religion in violation of the 1st Amendment and RLUIPA.  It concluded that the beliefs of the "spiritual counselor" here challenging the regulation are "personal and philosophical choices consistent with a way of life," and are "not deep religious convictions shared by an organized group deserving of constitutional solicitude." Finally the court rejected plaintiff's equal protection challenge to the regulatory scheme. AP reports on the decision. (See prior related posting.)

Australia's Top Court Upholds Permit Requirement For Preaching On Streets

Yesterday the High Court of Australia, the country's supreme court, upheld a By-Law of the city of Adelaide that requires the obtaining of a permit in order to "preach, canvass, harangue, tout for business or conduct any survey or opinion poll" on any public or private street. The by-law was challenged by two street preachers.  In Attorney-General (SA) v Corporation of the City of Adelaide, (HCA, Feb. 27, 2013), Justice Hayne, writing one of the opinions upholding the By-Law, said:

... [T]he concern of those who must decide whether to grant or withhold consent is confined to the practical question of whether the grant of permission will likely create an unacceptable obstruction of the road in question.  Once that is understood, it is readily evident that the impugned provisions are reasonably appropriate and adapted to prevent obstruction of roads in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.... 

The Australian reporting on the decision gives additional background on events that led to the case:

In September 2010, the preachers - who are not affiliated with any church - were banned from holding their self-described "prayer meetings" in the mall. Retailers and shoppers had complained their preaching - done through amplifiers and megaphones - was "xenophobic, homophobic and sexist". They claimed the group "shout and scream slanderous" comments including "Muslims are dirty" and "you are all sinners who will be killed by God". Adelaide City Council claimed it had the power to exclude them from the Mall under a bylaw governing the proper use of roadways.

Milwaukee Mexican Festival Agrees To End Ticket Discount For Mass Attendees

Each year, the Wisconsin Hispanic Scholarship Foundation sponsors a festival, Mexican Fiesta, at Milwaukee's Sumerfest Grounds. As reported by WITI News, in past years the Fiesta offered a steeply discounted admission price to individuals who attended a Catholic Mass held on the festival grounds prior to the opening of the festival. Last year the Freedom From Religion Foundation objected, arguing that this amounts to preferential treatment in public accommodations on the basis of creed-- a violation of Wis. Stat. 106.52(3)(a)(2). It filed a complaint with the state Equal Rights Division. Now the festival has agreed to a settlement in the case including an agreement that "future Mexican Fiesta promotions will not be timed to coincide with times of entry or exit of the annual Mass."

Group Wins Settlement In Suit Alleging Discrimination Against Nonbelievers

The Center For Inquiry (CFI) announced yesterday that it has successfully settled a religious discrimination and breach of contract lawsuit it brought last year against a Michigan country club.  The Wyndgate Country Club of Rochester Hills, Michigan cancelled its contract for CFI to hold a dinner at the country club after the club learned that the speaker for the event was famous atheist Richard Dawkins.  The club justified the cancellation by saying "the owner does not wish to associate with certain individuals and philosophies." (See prior posting.) CFI says that this may be the first time federal and state laws barring religious discrimination in public accommodations have been successfully invoked by nonbelievers.

Indian Court Says Child Marriage Ban Overrides Muslim Personal Law

Times of India reports that yesterday the high court in the Indian state of Karnataka has ruled that the Prohibition of Child Marriage Act which sets the minimum age for marriage at 18 overrides provisions of the Muslim Personal Law.  The court dismissed a petition filed on behalf of a 17-year old Muslim girl who claimed that the Prohibition of Child Marriage Act is not applicable to Muslims because Muslim Personal Law permits marriage of a girl after she has attained puberty.

Hungary's Constitutional Court Invalidates Law On Status of Religious Communities

AP reports that on Tuesday, Hungary's Constitutional Court struck down the country's law on the Legal Status of Churches, Denominations and Religious Communities that was passed by the National Assembly (Hungary's parliament) at the end of December 2011 (see prior posting). The law recognized only 14 "traditional" religious faiths instead of the 300 that had previously been recognized.  Faiths not specified in the new law were permitted to apply to parliament for recognition if they had been operating in Hungary for at least 20 years. The law was designed to prevent groups that do not carry out religious activities from taking advantage of tax benefits and support granted to churches.

In this week's decision (full text in Hungarian), the Constitutional Court struck down the law because parliamentary decisions on recognition cannot be appealed, no written justification for refusing recognition is called for, and the process lends itself to political influence. However this invalidation may be short-lived. The government coalition led by Prime Minister Viktor Orban's Fidesz party is proposing amendments to Hungary's 2011 Basic Law, the country's constitution.  One of these would explicitly permit the National Assembly to decide which churches are to be officially recognized.  Also many of the groups denied recognition under the 2011 law have by now disappeared or converted themselves into associations.

6th Circuit: City Not Required To Add "Winter Solstice" Sign To Holiday Display

In Freedom From Religion Foundation, Inc. v. City of Warren, Michigan, (6th Cir., Feb. 25, 2013), the U.S. 6th Circuit Court of Appeals upheld a holiday display put up by the city of Warren, Michigan in its civic center. The court held that the display-- which included a lighted tree, reindeer, snowmen, a "Winter Welcome" sign and a nativity scene-- does not offend the Establishment Clause. It also held that the city was not required to include near the display a Winter Solstice sign composed by the Freedom From Religion Foundation. The sign included language calling religion "myth and superstition." The court said:

The short answer to the Foundation’s Winter Solstice request was that the Supreme Court has long permitted exhibits like the Warren holiday display, and the Establishment Clause does not convert these displays into a seasonal public forum, requiring governments to add all comers to the mix and creating a poison pill for even the most secular displays in the process.

The court also concluded that the mayor's letter rejecting FFRF's request, despite some questionable statements in it, did not turn the city's holiday display into an impermissible establishment of religion.

Finally, the court emphasized the the holiday display involved is "quintessentially government speech." Quoting the 9th Circuit, it added: "Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist."  The Detroit Free Press reports on the decision.

3 Abuse Suits Filed Against Catholic Diocese and Order After Priest Commits Suicide

WKBN News reported yesterday on the third lawsuit growing out of sexual abuse of teenage boys by Franciscan Brother Stephen Baker at Catholic high schools in Warren, Ohio and Johnstown, Pennsylvania. Baker had been placed under supervision in a monastery in 2000 when complaints against him were first raised.  Last month, Baker committed suicide, leaving notes apologizing for his actions. Charges against Baker became widely known last month after a Boston attorney announced a settlement on behalf of 11 victims. The settlement was paid by the Third Order Regular Franciscans and the Youngstown Catholic Diocese. There followed three lawsuits filed in Pennsylvania state court against the Franciscans and the Johnstown-Altoona Catholic Diocese.  Baker allegedly used his position as athletic trainer to give teenage boys massages that included fondling their genitals and digitally penetrating them. Last week, the Youngstown diocese announced it had written 1200 adults who were students during the years that Baker taught in diocese schools, asking them to come forward with any other charges against Baker.

Ultra-Orthodox Jewish Schools Seeking Religious Accommodations In Complying With Federal School Nutrition Rules

The Forward reported yesterday on the unique problems of religious accommodation in complying with the federal Healthy, Hunger-Free Kids Act of 2010 faced by ultra-Orthodox Jewish schools. Under the Act and implementing regulations, federal assistance for a school's food program is available only if the school's menus meet specified nutritional guidelines.  Orthodox Jewish schools have encountered two issues, only one of which has been resolved so far. First, government standards limited the amount of  grain-based food that could be served.  Orthodox Jewish students needed a slice of bread in order to say the traditional Hamotzi-- the blessing over bread with which each meal is begun. That left no room for other grain-based foods. USDA officials agreed that schools could increase the amount of grain consumption, so long as it stayed within the calorie limit set out in USDA regulations.

The second issue involves the requirement to serve leafy dark-green vegetables as part of school meals. Ultra-Orthodox standards for kosher observance require special inspection of leafy vegetables to be sure that they are not insect infested. This would pose prohibitive costs on schools, and if they did not provide for inspection parents would advise their children not to eat the vegetables.  The schools are consulting with a nutritionist to attempt to find equally nutritious alternatives.

Scottish Cardinal Resigns Amid Charges Of Inappropriate Sexual Behavior

Vatican Radio this morning announced that Pope Benedict XVI has accepted the resignation of Scotland's Cardinal Kieth O'Brien. The resignation follows a report Saturday in The Observer that 3 priests and a former priest have charged O'Brien with "inappropriate behavior" involving inappropriate contacts, beginning in the 1980's. According to The Observer:

The four, from the diocese of St Andrews and Edinburgh, have complained to nuncio Antonio Mennini, the Vatican's ambassador to Britain, and demanded O'Brien's immediate resignation. A spokesman for the cardinal said that the claims were contested.

O'Brien, who is due to retire next month, has been an outspoken opponent of gay rights, condemning homosexuality as immoral, opposing gay adoption, and most recently arguing that same-sex marriages would be "harmful to the physical, mental and spiritual well-being of those involved". Last year he was named "bigot of the year" by the gay rights charity Stonewall.

According to the New York Times, a statement issued by the Diocese of Edinburgh on O'Brien's behalf yesterday said: "A number of allegations of inappropriate behavior have been made against the cardinal The cardinal has sought legal advice, and it would be inappropriate to comment at this time. There will be further statements in due course."

In Australia, Parliament Debates Scope of Religious Exemptions In Proposed Anti-Discrimination Law Revisions

The Australian reported last week on the controversy over the scope of exemptions for religious organizations in proposed Australian civil rights legislation.  Labor proposed a bill-- the Human Rights and Anti-Discrimination Bill 2012-- to consolidate Australia's five existing anti-discrimination laws. Under the proposal, exemptions for religious organizations were to be largely retained, except for government-funded providers of care for the elderly where there is concern about discrimination against same-sex couples seeking to enter care facilities.  However the Senate Legal and Constitutional Affairs Legislation Committee in a report released Feb 21 (full text) has recommended much narrower religious exemptions in the new law. (Full text of recommendations).  Opposition members of the Senate in turn, concerned about protecting Church schools, called on the Attorney General to retain current exemptions in the new law.

German Prosecutor Drops Circumcision Prosecution of Rabbi

Applying Germany's new law enacted in December to confirm the legality of religious circumcisions performed with parental consent by specially trained members of the religious community, a court in the German city of Hof has dismissed charges that had been filed last year against a rabbi.  According to the European Jewish Congress, the criminal charges were dropped last Thursday by the prosecutor who said that Rabbi David Goldberg has satisfied all the requirements of the new law.

Recent Articles of Interest

From SSRN:

• Stuart Vincent Campbell, Brazil, Blasphemy, and Free Speech: Why the US Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech, (December 15, 2012).
• John Lunstroth, On Stanford Law’s Religious Liberty Clinic and Ideology, (U of Houston Law Center No. 2013-W-1 (Jan. 29, 2013)).
• Moeen Hayat Cheema, Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law, (The American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Mathilda McGee-Tubb, Standing a Little Bit Above the Rest: Establishment Clause Enforcement & Taxpayer Standing after Winn, (January 10, 2012).
• Renée Mirkes and Edward A. Morse, Conscience and Competing Liberty Claims, (Ethics & Medicine: An International Journal of Bioethics, Vol. 29, No. 1, pp. 23-29, Spring 2013).
• Christopher McCrudden, In Pursuit of Human Dignity: An Introduction to Current Debates, (Understanding Human Dignity, Proceedings of the British Academy/Oxford University Press, Forthcoming).
• Alan E. Brownstein, Protecting the Religious Liberty of Religious Institutions, (Journal of Contemporary Legal issues, Forthcoming).
• Sahar F. Aziz, Policing Terrorists in the Community, (February 21, 2013).
• Jeff Redding, Secularism, the Rule of Law, and 'Shari‘a Courts’: An Ethnographic Examination of a Constitutional Controversy, (57 St. Louis U. L.J. __ (2013)).
• Susannah William Pollvogt, Animus and Marriage Equality, (February 21, 2013).
• Aziza Ahmed, No Way Out: The Dual Subordination of Muslim Women in Indian Legal Culture, (Self-Determination and Women's Rights in Muslim Societies, Chitra Raghavan, James P. Levine, eds., Brandeis University Press, 2012).

From SmartCILP:

• Rev. Joseph E. Bush, Keeping Faith in Community: A Pastoral Response and Ethical Argument, 10 Ohio State Journal of Criminal Law 181-190 (2012).

Recent Prisoner Free Exercise Cases

In Abel v. Martel, 2013 U.S. Dist. LEXIS 19638 (ED CA, Feb. 13, 2013), a California federal magistrate judge recommended dismissing plaintiff's complaint that his rights were violated when authorities denied him the ability to purchase and personally possess certain religious items approved for group use by Wiccans, and when they confiscated and destroyed several of his religious items including ceremonial wands, a crystal and chalices.

In Shoemaker v. Williams, 2013 U.S. Dist. LEXIS 19641 (D OR, Feb. 11, 2013), an Oregon federal district court rejected a Muslim inmate's claim that his rights were violated when the halal meals he was served only contained meat on two Islamic holidays per year. The remainder of the time they were only vegetarian or fish meals. Prepackaged halal meat meals could be purchased from the commissary.

In Anderson v. Rettke, 2013 U.S. Dist. LEXIS 17793 (D MN, Feb. 11, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 18745, Jan 2, 2013) and dismissed a jail inmate's complaint that he was not permitted to conduct a Native American pipe ceremony. Authorities said it would create a safety hazard from smoke and fire.

In Gutman v. Wrigglesworth, 2013 U.S. Dist. LEXIS 18350 (WD MI, Feb. 12, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185987, Oct. 9, 2012) and dismissed a Jewish inmate's complaint regarding access to and removal from a kosher diet, his claim that he was not informed of the rules regarding participation in a kosher diet, and his allegation that he was not permitted to possess certain religious items.

In Shabazz v. Parris, 2013 U.S. Dist. LEXIS 20264 (CD CA, Feb. 13, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's conclusory free exercise allegations where the only facts alleged were that he is Muslim and the arresting officer used a religious epithet.

In Jouvert v. New York State, 2013 U.S. Dist. LEXIS 11509 (ND NY, Jan. 29, 2013), a New York federal district court agreed with a magistrate's recommendation (2012 U.S. Dist. LEXIS 186103, Oct. 23, 2012) and dismissed a former inmate's claim that he was denied participation in Islamic classes, Islamic Friday services, and the 2009 Ramadan fast.

In Shannon v. Nero, 2013 U.S. Dist. LEXIS 21029  (D MD, Feb. 8, 2013), a Maryland federal district court dismissed an inmate's complaint that while he was confined to administrative segregation he could not attend monthly Jewish religious services, and rejected his claim that he was denied kosher meals.

In Owens v. Beckley, 2013 U.S. Dist. LEXIS 22223 (SD WV, Feb. 19, 2013), a West Virginia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22225, Jan. 31, 2013) and refused to issue a preliminary injunction sought by plaintiff who wanted authorities to treat New Age Druidry as a separate religion and provide means to practice it, rather than dealing with it as an aspect of the Wiccan program.  Plaintiff also sought to prevent officers from retaliating against him and others, claiming that an officer had raided the Wiccan locker and seized a book and a cord.

In Martin v. Lee, 2013 U.S. Dist. LEXIS 22459 (WD LA, Feb. 14, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22461, Jan. 17, 2013) and dismissed a Muslim inmate's complaint that his right to participate in Friday Jumah services has been curtailed and that he is being served food that may contain pork products.

Factual Issue Remains In Establishment Clause Challenge To School Board's Outsourcing

In Kucera v. Jefferson County Board of School Commissioners, (ED TN,  Feb. 21, 2013), a Tennessee federal district court allowed two plaintiffs-- a former teacher and the former principal in an alternative school-- to proceed with their claims that a Tennessee school district violated the Establishment Clause when it closed the alternative school in which they were employed and contracted with Kingswood Academy, a Christian school, to provide alternative school services.  In denying defendants' motion for summary judgment, the court said that there remains an issue of fact as to whether or not the alternative day program offered by Kingswood is religious in nature in the same way its residential program is. (See prior related posting.)

Israel's Haredi Religious Parties Fear Loss of Influence In New Government

In an article titled Haredi Power on the Brink, The Forward yesterday reported the two largest Israeli religious parties representing the ultra-Orthodox ("Haredi") Jewish community are now seriously concerned about the continuation of their political power.  The results of the recent election for members of Israel's Knesset have left the two parties-- United Torah Judaism and Shas-- facing the possibility of a government coalition that could threaten the continuation of military draft exemptions for yeshiva students and large amounts of government financial support for yeshivas (religious schools).  According to the Forward, the most significant "sign of panic" from the two Haredi  parties that fear being left out of the ruling coalition is their courting of their traditional opponent-- the Modern Orthodox Religious Zionist party, Jewish Home-- which may become part of the governing coalition. (See prior related posting.)

Vatican Says Media Publishing Embarrassing Stories To Affect Papal Election

According to Thursday's Irish Times (quoting the Italian daily La Repubblica), Pope Benedict’s recent resignation was partly impelled by a damaging report commissioned at Benedict’s direction after the leaking of confidential Vatican documents last year by the Pope's butler. Prepared by 3 senior cardinals --Julian Herranz, Josef Tomko and Salvatore De Giorgi-- the report reportedly concludes that various lobbies, including a gay lobby, exercise improper influence in Vatican affairs. According to La Repubblica, the lobbies were involved in adultery and in stealing relating to the Vatican Bank. In an unusual statement today (full text) the Vatican Secretary of State reacted to the press reports, characterizing them as attempts to influence the selection of the next Pope.  The statement says in part:

Over the course of the centuries, Cardinals have had to face many forms of pressures, exerted upon individual electors or upon the College of Cardinals itself....  If in the past ... States, sought to influence the election of the Pope, today there is an attempt to do this through public opinion....  It is deplorable that, as we draw closer to the moment that the Conclave will begin ... there is a widespread distribution of often unverified, unverifiable, or even completely false news stories that cause serious damage to persons and institutions.

9th Circuit: Inmates State Plausible Establishment Clause Objection To Refusal To Hire Wiccan Chaplain

In Hartmann v. California Department of Corrections and Rehabilitation, (9th Cir.,  Feb. 19, 2013), the U.S. 9th Circuit Court of Appeals held that Wiccan inmates had plead sufficient facts to move forward with plausible state and federal Establishment Clause objections to the California prison system's refusal to hire a Wiccan chaplain. California prisons employ Catholic, Jewish, Muslim, Native American, and Protestant chaplains. Prisoners of other faiths must rely on these chaplains, or on volunteer chaplains. Plaintiffs claim that the state does not apply "neutral, equitable, and unbiased criteria" to determine chaplain hiring needs or other religious accommodations, and assert that the state's chaplain-hiring policy "constitutes an unconstitutional endorsement of one religion over another." The court affirmed the dismissal of plaintiffs' free exercise, RLUIPA and equal protection claims. AP reports on the decision.

Amish Convicted In Assaults On Rivals Appeal Convictions

Yesterday AP reported that all 16 of the members of the Bergholz Amish sect who were convicted last September in a series of beard- and hair-cutting assaults on a rival Amish group have appealed their federal hate-crimes and conspiracy convictions to the U.S. 6th Circuit Court of Appeals. Earlier this month, the group's leader Samuel Mullet received a 15 year sentence, while other defendants received sentences ranging from 7 years to just over one year.

Egypt's High Administrative Court OK's Police Wearing Beards

According to Middle East Online, Egypt's High Administrative Court on Wednesday ruled that members of Egypt's police force may grow beards. Under now-ousted President Hosni Mubarak, as a method of opposing Islamist forces informal rules barred police and senior government officials from wearing beards.   Christians and the liberal opposition to the Muslim Brotherhood may see this week's Court's ruling as an invitation to Islamists to further press their practices on Egyptian society.

Couple Denied Utilities May Pursue Religious Discrimination Claim Against FLDS Town

In Cooke v. Town of Colorado City, Arizona, (D AZ, Feb. 13, 2013), an Arizona federal district court, while dismissing some of plaintiffs' causes of action, permitted them to move ahead with their claims that Colorado City, Arizona and two utility companies discriminated against them on the basis of religion. Plaintiffs, husband and wife, allege they were denied utility connections for their home because they are not members of the locally dominant Fundamentalist Church of Jesus Christ of Latter Day Saints. The husband was a former FLDS member.  The court held that plaintiffs may move ahead with their claims under the Federal and Arizona Fair Housing Acts and Arizona anti-discrimination laws. KUTV News reports on the decision.

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

[Thanks to Howard Bashman for the lead.] 

Lumbees Not Included In DOJ's Non-Prosecution Policy On Eagle Feathers

As previously reported, last October the Justice Department formalized a non-prosecution policy that allows members of federally recognized Indian tribes to possess and use eagle and other protected bird feathers for religious and cultural purposes. Earlier this week, McClatchy Newspapers reported on the problems that still remain for the Lumbee Indians of North Carolina who are not a federally recognized tribe. Their possession of eagle feathers remains illegal, as does that by other unrecognized tribes.  The Lumbees have tried unsuccessfully over the years to obtain federal recognition

Report Says Islamic Finance Taxed Unfairly In MENA Region

The Qatar Financial Centre Authority last week released Phase One of a report on disparate tax treatment of Islamic financial products in the Middle East and North Africa.  The 83-page report on Cross Border Taxation of Islamic Finance in the MENA Region finds:

Islamic finance is of growing importance within the MENA region, but the taxation systems of almost all countries were developed in an environment of conventional finance. This can mean that Islamic finance suffers a tax burden that is not suffered by conventional finance.

The reason is that most transactions that are undertaken in Islamic finance seek to achieve economic outcomes which are similar to the economic outcomes achieved by conventional finance. However to achieve these economic outcomes the Islamic finance transactions typically require more component steps than do the equivalent conventional financial transactions....

The additional transactions required by Islamic finance are at risk of being subject to transfer taxes or to taxes on income or gains.... The researchers considered two alternative approaches to the modification of tax law to facilitate Islamic finance....

Lawsuit Challenges California School District's Yoga Offerings As Government Support of Religion

The National Center for Law and Policy announced yesterday that it has filed a lawsuit in state court in California challenging the Encinitas Union School District's decision to offer a yoga program as part of its curriculum.  According to the press release:

The lawsuit is the result of EUSD’s decision to accept $533,000 from the Jois Foundation in exchange for providing the religiously-based organization access to its young and impressible students to test and prove the feasibility of Jois’ "health and wellness" Ashtanga yoga curriculum.... EUSD’s Ashtanga yoga program is inherently and pervasively religious, having its roots firmly planted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs and practices.  As such, the program violates California constitutional provisions prohibiting government religious preference and religious discrimination (article I, § 4), prohibiting use of state resources to support religion (article XVI, § 5), and forbidding employing government resources to promote religion in public schools (article IX, § 8).

The allegations in the complaint were supported by a declaration (full text) from Candy Gunther Brown, an associate professor of religious studies at Indiana University. AP reports on the lawsuit.

Spain Agrees That Children Adopted From Morocco Will Remain Muslim

The Gatestone Institute reported yesterday that the government of Spain has agreed with the government of Morocco that Moroccan children adopted by Spanish families will be required remain culturally and religiously Muslim.  The Spanish government will create a "control mechanism" that will allow Moroccan religious authorities to monitor the children until they reach the age of 18 to see that they have not converted to Christianity. Spain agreed to these conditions so that Spanish families who are in the process of adopting Moroccan children can bring them to Spain.

Morocco has a high rate of child abandonment, and Spain has been an important source of adoptive parents for Moroccan chiidren.  As explained in a Morocco News Board report last year, in Islamic law raising a child that is not one's genetic offspring is encouraged, but the young person does not become the true child of the adoptive parents. Instead, in an arrangement known as kafala the child is monitored to assure that he or she is raised as a Muslim.  Because monitoring of children abroad is difficult, last year Morocco's Ministry of Justice and Freedoms issued Circular No. 40 S/2 providing that kafala would be allowed only for parents who reside permanently in Morocco. Spain's new arrangement allows Spanish parents to avoid the restrictions in Circular 40 S/2. [Thanks to Louis Offen for the lead.]

Parent's Claim In School "Candy Cane" Dispute Dismissed On Qualified Immunity Grounds

Last month, a Texas federal district court issued yet another decision in the 7-year long litigation challenging the Plano school district over school rules that, among other things, precluded a student from handing out candy canes with an attached religious message.  The most recent decision involved a complaint by one of the parents who was denied permission to hand out a card describing the religious legend of the candy cane to other parents at his son's school Winter Break party.  In Morgan v. Plano Independent School District, (ED TX, Jan. 15, 2013), the court adopted a magistrate's recommendation (Sept. 25, 2012) and, based on an earlier 5th Circuit decision, dismissed the complaint on qualified immunity grounds. Courthouse News Service yesterday reported on the decision.

In Sri Lanka, Radical Buddhist Party Stirs Up Anti-Muslim Sentiment

In Sri Lanka, a Buddhist country with a 10% Muslim minority, the radical Buddhist party, Bodu Bala Sena (Buddhist Strength Force), is stirring up anti-Muslim sentiment. It is calling on the government to ban halal food certification, ban the building of mosques with funds from Middle Eastern countries, and prohibit sending Sri Lankan women to work in the Middle East. Yesterday's Khaleej Times reports that thousands attended an anti-Muslim rally last Sunday. Bodu Bala Sena Secretary Galaboda Aththe Gnanasara Thero, claiming that Muslim extremists are threatening the Buddhist race, said: "Hundreds of monks are ready to fight....Our country is a Sinhalese one and we are its unofficial police." He also called for an amendment to the constitution to allow Buddhist men to have seven wives.

Virginia Legislature Protects Mission of College Religious Groups

Last week the Virginia state legislature gave final approval to HB 1617 which provides:

To the extent allowed by state and federal law:

1. A religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities; and

2. No public institution of higher education that has granted recognition of and access to any student organization or group shall discriminate against any such student organization or group that exercises its rights pursuant to subdivision 1.

The bill has been sent to Gov. Bob McDonnell for his signature.  In an editorial yesterday, the Virginia Pilot called for the governor to veto the bill, saying: "The real reason for the bill is to allow certain religious or political groups to reject gay or lesbian students with the commonwealth's blessing."

Kazakhstan Elects New Grand Mufti

Tengri News yesterday reported that a new Grand Mufti of Kazakhstan has been elected unanimously by the participants of the 7th Kurultai of Kazakhstan Muslims.  The new Grand Mufti is 40-year old Yerzhan Mayamerov.  Since 2011 he has served as imam of the Semei region. Two new first deputies to the Grand Mufti were also appointed.

Canadian Prime Minister Announces Opening of Office of Religious Freedom

Northumberland View reports that Canadian Prime Minister Stephen Harper yesterday announced the creation of the Office of Religious Freedom within the Department of Foreign Affairs and International Trade. According to the ORF website: "the Office has been created to promote freedom of religion or belief as a Canadian foreign policy priority." Harper also announced the appointment of Dr. Andrew Bennett as Ambassador to the Office. (See prior related posting.)

4 Christians Arrested In Libya For Proselytizing

Both The Guardian and RT report that In Libya last week, four foreign nationals were arrested in Benghazi and charged with distributing Christian literature. Under a Gaddafi-era law, proselytizing potentially carries a death sentence.  The four--a Swedish-American, Egyptian, South African and South Korean-- were taken into custody at a publishing house where police found 45,000 pamphlets and said another 25,000 had already been distributed. The four  have been handed over to Libya's Preventive Security. Libya this week is celebrating the second anniversary of the overthrow of Muammar Gaddafi.

Egypt Picks New Grand Mufti, Elected By Al-Azhar For First Time

According to Ahram Online, in Egypt, yesterday President Mohamed Morsi officially approved Shawki Ibrahim Abdel-Karim as the country's new Grand Mufti. Morsi's approval comes after the Senior Scholars Authority of Al-Azhar voted to elect Abdel-Karim. This is the first time Al-Azhar has been given this kind of input into the selection of a Grand Mufti, presumably reflecting the enhanced powers given to the Sunni religious institution in Egypt's new Constitution. (See prior posting.) In the past, the Grand Mufti was merely appointed by the President. The new Grand Mufti, whose term begins March 4, is an expert on Islamic Jurisprudence. Among his writings is a book on the political rights of Muslim women.

Britain's Equality Commission Issues New Guidance On Workplace Religious Accommodation

Britain's Equality and Human Right Commission this month issued two publications designed to give guidance on accommodating religion and belief in the workplace, in light of last month's judgments on the issue handed down by the European Court of Human Rights. (See prior posting.)  One pamphlet, Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments, answers common questions and sets out examples for employers.  A second pamphlet, titled Religion or Belief in the Workplace: An Explanation of Recent European Court of Human Rights Judgments, summarizes last month's decisions and their impact, saying:

The new judgment means that the courts cannot simply dismiss a case because of the possibility of changing jobs to other employment that allows the religious observance. Instead, this possibility should be a relevant factor, to be weighed amongst others, when considering whether or not the restriction is proportionate.

New Ten Commandments Party Formed In Russia

Interfax reports that a new Ten Commandments party has been formed in Russia. 134 delegates-- including Christians, Muslims and Jews-- attended the party's inaugural Congress on Feb. 17.  Archpriest Vsevolod Chaplin, speaking at the Congress, said in part:

I hope that your activity will help to restore moral values, God's Ten Commandments in the everyday political life, in the life of our society. I hope that you will stay faithful to these God's Commandments, that you'll be able to unite a considerable number of people.

Court Denies TRO To Stop Church's Amplified Music

According to the Durham News & Observer, a Durham, North Carolina state trial court yesterday, finding no likelihood of success on the merits, denied a temporary restraining order against amplified music played at a popular local church.  Neighbors of Newhope Church, one of the country's fastest growing congregations, claimed the music amounts to nuisance and trespass, that it harms their property values, as well as their ability to relax and find peace in their own homes. The church argued that the music complies with the city's noise ordinance, and that any attempt to regulate it would violate its 1st Amendment rights.

White House Announces 2013 Easter Egg Roll

Last Friday, the White House announced the 2013 White House Easter Egg Roll. It will take place on Monday, April 1, on the South Lawn of the White House.  Tickets will be distributed through a on-line lottery system that is open for entries from Feb. 21 to 25.

Recent Articles of Interest

From SSRN:

• Neil James Foster, Freedom of Religion and Law Schools: Trinity Western University, (January 23, 2013).
• James M. Oleske, Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws, (Animal Law Review, Vol. 19, No. 2, 2013).
• Patrick Parkinson, Suffer the Teenage Children: Child Sexual Abuse in Church Communities, (Paper for the Center for the Study of Law and Religion, Emory University, January 2013).
• Andrew F. March, Rethinking Religious Reasons in Public Justification, (American Political Science Review, Forthcoming).
• Carissima Mathen, Reflecting Culture: Polygamy and the Charter, (Supreme Court Law Review, 57, 2012).

From SmartCILP and elsewhere:

• Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act: Recent Developments in RLUIPA's Land Use Jurisprudence, 44 Urban Lawyer 647-665 (2012).
• R. George Wright, Can We Make Sense of "Neutrality" in the Religion Clause Cases?: Seven Rescue Attempts and A Viable Alternative, 65 SMU Law Review 877-909 (2012).
• Symposium: Sharia in America: Principles and Prospects. 57 New York Law School Law Review 231-311 (2012/13).
• Christopher J. Rosko and Leonard J. Nelson, III, The Emergency Research Waiver of Consent Rule: Is It Compatible With Catholic Teaching?, 6 University of St. Thomas Journal of Law & Public Policy 156-205 (2011).
• John Witte, The Study of Law and Religion in the United States: An Interim Report, [Abstract], 14 Ecclesiastical Law Journal 327–354 (2012).

Iranian Authorities Confiscating Buddha Statues

The London Guardian reported yesterday that Iranian authorities are confiscating Buddha statues from shops in Tehran. An official called the statues a symbol of cultural invasion. Apparently some Iranians have been buying the statues for decoration and not for religious reasons.

Recent Prisoner Free Exercise Cases

In Riley v. Decarlo, (3d Cir., Feb. 13, 2013), the 3rd Circuit rejected a Muslim inmate's claims that his free exercise and equal protection rights were infringed by the failure to provide a Halal meat diet to all Muslim inmates and by the Pennsyvania Department of Corrections policy of administering a PPD test for tuberculosis.

As reported by AP, the 8th Circuit in Sims v. Randall, (8th Cir., Feb. 14, 2013) summarily dismissed an appeal of a Nebraska federal district court decision rejecting claims that Nebraska prison officials failed to fully carry out a 2005 agreement to accommodate the religious and cultural needs of Native American inmates.

In March v. Townsend, 2013 U.S. Dist. LEXIS 17615 (ED TN, Feb. 8, 2013), a Tennessee federal district court permitted an Orthodox Jewish inmate to proceed under RLUIPA and the 1st Amendment with his complaint that he was terminated from a kosher diet for his breakfast meal, was served only vegetarian dishes, and that  non-kosher trays and utensils were used in the kosher meal service.

In Creveling v. Johnson, 2013 U.S. Dist. LEXIS 18373 (D NJ, Feb. 11,2013), a New Jersey federal district court dismissed a claim by an inmate in a Special Treatment Unit for sexual offenders that his free exercise rights were violated because the facility did not offer weekly Catholic Mass.

In Jenner v. Sokol, 2013 U.S. Dist. LEXIS 18075 (D CO, Feb. 11, 2013), a Colorado federal district court permitted a Jewish inmate to proceed with his complaint about cancellation and timing of Shabbat services, but dismissed his claims regarding the availability of religious supplies.

In Powers v. Naiman, 2013 U.S. Dist. LEXIS 18026 (MD FL, Feb. 11, 2013), a Florida federal district court rejected the portion of a magistrate's report (2012 U.S. Dist. LEXIS 185875, Nov. 2, 2012) recommending dismissal of a Messianic Jewish inmate's complaint under RLUIPA that he was not allowed to keep his religious garments in his cell.  Instead the court permitted defendants to file a corrected motion to dismiss based on failure to exhaust administrative remedies.

In Guthrie v. Unknown Handline, 2013 U.S. Dist. LEXIS 18462 (WD MI, Feb. 12, 2013), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185988, Oct. 19, 2013) and dismissed on statute of limitations grounds and inmate's complaint that a corrections officer permitted an inmate to attack him because of his religion.

In Blake v. Cooper, 2013 U.S. Dist. LEXIS 18530 (WD MO, Feb. 12, 2013), a Missouri federal district court dismissed Muslim inmates' claim that they were not allowed to break their Ramadan fast with dates, finding that any violation was de minimis and did not place a substantial burden on their free exercise of religion.

In Foster v. Western District of Louisiana, 2013 U.S. Dist. LEXIS 18906 (WD LA, Feb. 12, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 18914, Jan. 16, 2013) and dismissed a complaint by a Muslim inmate that his right to participate in Friday Jumah services was curtailed and he was not provided religious education.

Suit By Church Seeks TRO Against Dissident Faction

The Toledo Blade reports on a lawsuit filed February 1 by a Toledo, Ohio congregation-- the Southern Baptist Missionary Church--  against 13 church members who attempted in a contested January 28 meeting to remove Lemuel A. Quinn as pastor.  Background on the dispute is furnished in a Commentary by the Blade's religion editor. The suit claims that the defendants have filed false police reports and have physically threatened church members. It claims that one member physically assaulted Quinn during a church service, and that defendants have circulated false rumors that Quinn died in order to reduce attendance. Defendants say that Quinn has been deceitful about his 1973 conviction for manslaughter, and has been threatening to some members. So far, attempts by the judge to mediate the dispute have not been successful. A hearing has been scheduled For. Feb. 25 by Common Pleas Court judge James Bates who says he hopes he will not be required to decide who the church's pastor is.

Depositions From Legion of Christ Lawsuit Released

As previously reported, a Rhode Island Superior Court last month ordered release to the media of documents that had been produced by the scandal-ridden Legion of Christ in a lawsuit against it. According to the Daily Mail, the documents -- the first-ever depositions of high-ranking Legion officials-- were actually released yesterday and reveal:

details on how the founder of the organization, the Reverend Marcial Maciel who died in 2008, lived a double life, fathering three children, and was accused of abusing seminarians. The Legion kept this information hidden.  Also revealed are allegations that the organization solicited money from an elderly widow, eventually persuading her to bequeath it $60 million.

Army Will Bill West Point Student Who Left Criticizing Proselytizing

As previously reported, last December a West Point cadet, Blake Page, who had been disqualified on medical grounds from receiving a Second Lieutenant commission, resigned from West Point 5 months short of graduation in protest of the school's promotion of religion. At the time, it was reported that Page would receive an honorary discharge and would not have to reimburse the government for the cost of his education. Yesterday, however, NBC News reported that Assistant Secretary of the Army Thomas Lamont, while approving an honorable discharge, has rejected the recommendation of West Point superintendent Lt. Gen, David Huntoon that repayment of tuition be waived. Instead Page will be billed for over $200,000, Pages's supporters charge that the decision was in retaliation for the scathing commentary about Christian proselytizing at West Point that Page published  as he was leaving.

House Holds Hearings On Tax Reform and Charitable Contributions

Yesterday, the House Ways and Means Committee held hearings on Tax Reform and Charitable Contributions.  The testimony of all six panels of witnesses is available from the Committee's website, as is the Opening Statement of Committee Chairman Dave Camp. In anticipation of the hearing, the staff of the Joint Committee on Taxation released a 55-page report titled Present Law and Background Relating to the Federal Tax Treatment of Charitable Contributions. [Thanks to Steven H. Sholk for the lead.]

Religious Conservatives Around The World Object To Valentine's Day

Today is Valentine's Day-- a celebration that has become increasingly popular around the world.  As in past years, conservative religious authorities in some countries continue to express their opposition to the occasion. In Coimbatore, India, members of the All India Youth Federation have petitioned police for protection, according to yesterday's Deccan Chronicle. The group says that every year, religious parties and other protesters gather in city parks and elsewhere where young people meet, and try to catch them and force them to marry in public places.

In Indonesia, according to today's Tengri News, the country's largest Muslim organisation, Nahdlatul Ulama, says it does not want to ban Valentine's Day, but it should not be celebrated by teenagers. The Head of the conservative Islamic Defenders Front went further and declared the day "haram" (forbidden) for Muslims, saying it reflects the culture of "infidels."

According to OnIslam, in Pakistan, the head of Jammat-e-Islami, the country’s largest Islamic party, said: "We are going to observe February 14 as Hijab Day in all over the country, especially in the educational institutions in order to show to the world that the people of Pakistan totally reject this custom, which is a direct attack on the culture of modesty."

Meanwhile, according to Chicago's Daily Herald, in Illinois, supporters of same-sex marriage hope that the state Senate will use today to pass and send to the House a bill permitting same-sex marriage.

Orange County Settles, Allowing Muslim Women In Custody To Wear Hijab

The San Clemente Patch reported yesterday that Orange Count, California has settled a 6-year long lawsuit brought against it by the ACLU on behalf of Souhair Khatib, a Muslim woman who was required to remove her hijab (head scarf) while in a courthouse holding cell. (See prior posting.) Under the settlement, Orange County officials will no longer require women in custody to remove their hijab. Also the county will provide training to law enforcement officers on the new policy, and will pay $85,000 in damages, fees and court costs.

Challenge To 10 Commandments Monument Dismissed After Plaintiff Says It Now Lacks Standing

In 2006, Dixie County, Florida commissioners approved a request by citizens to permit them to place a 5-foot tall, 6-ton granite Ten Commandments monument at the county courthouse. The ACLU filed a lawsuit challenging the monument on behalf of an ACLU member, identified only as John Doe, who did not live in Dixie County, but said he was looking to purchase property there on which he and his wife could park their recreational vehicle. They encountered the offending display when they went to the county courthouse to research any encumbrances on property they were considering. Apparently the ACLU was unable to find an actual Dixie County resident who was willing to act as plaintiff.

As the case wound its way through the courts, standing of plaintiff to bring the lawsuit remained an issue, and last year the 11th Circuit remanded the case to the district court for a hearing on standing. Last month, the ACLU filed a motion (full text) to dismiss the suit without prejudice, asserting that changed circumstances have led plaintiff to conclude that it lacks standing.  The motion asserted:

John Doe recently learned that a revised permitting process will limit the number and location of properties on which RVs may be placed. And more troubling for Doe and his wife, the revised permitting process would require John Doe to publicly advertise his request for a permit. The Does are fearful that, because it is common knowledge that they were seeking property for the purpose of living in their RV, the new permitting requirements will lead to their identities being discovered and make them targets for physical violence and threats or harm to their property.... With these new requirements and accompanying fears for their safety, John Doe and his wife regrettably concluded this past week that, even if the monument is removed, they “are very unlikely to return to Dixie County to search for property.”

Yesterday, in American Civil Liberties Union of Florida, Inc. v. Dixie County, Florida, (ND FL, Feb. 13, 2013), the federal district court dismissed the case without prejudice, indicating that all matters, including costs and attorneys' fees, have been resolved by the parties. A press release by Liberty Counsel indicates that under the parties' agreement, the ACLU will pay defendants $1300 for court costs. It says that plaintiff has admitted he does not intend to buy property in the county because the court had ordered him to be deposed to reconcile inconsistencies in his prior affidavit and deposition.

11th Circuit Tells Parties To Try Again To Mediate RLUIPA Zoning Dispute Over Mosque Expansion

The Atlanta Journal Constitution reports that yesterday, after hearing oral arguments in Islamic Center of North Fulton, Inc. v. City of Alpharetta, Georgia, the U.S. 11th Circuit Court of Appeals ordered the parties to try again to resolve their zoning dispute by mediation.  In the case, a federal district court dismissed RLUIPA and federal constitutional challenges to Alpharetta's refusal to approve the Islamic Center's expansion. The proposed project would replace the Center's present worship structure with 2 buildings-- a mosque and a smaller community hall. (See prior posting.) The 11th Circuit said that if no settlement is reached in 120 days, it will issue a ruling in the case.

House Passes Bill To Allow FEMA Aid To Houses of Worship Damaged In Hurricane Sandy

As reported by the Huffington Post, by a vote of 354-72 yesterday the U.S. House of Representatives passed HR 592, the Federal Disaster Assistance Nonprofit Fairness Act.  The bill, which now goes to the Senate for consideration, adds houses of worship to the list of types of private non-profit facilities eligible for federal disaster aid from the Federal Emergency Management Agency. The change is aimed at assisting houses of worship in the Northeast that were damaged by Hurricane Sandy. Americans United and the ACLU opposed the bill on church-state separation grounds.

School Board Modifies Policy On Youth Ministers' Lunchtime Visits

The Conway, Arkansas Log Cabin Democrat reports that yesterday the Conway school board approved a policy that will allow youth ministers back on school campuses, after their lunch hour visits with students were temporarily suspended in reaction to a complaint by the Freedom From Religion Foundation. Some parents were particularly concerned with ministers approaching children without parental consent. The schools asked Liberty Institute to analyze the constitutionality of the school policy on outside visitors.  The organization's report (full text, scroll to pg. 62 of Board agenda items), was released late Thursday, too late for parents to get on Tuesday's agenda to comment on it.  It concluded that the existing visitor policy was neutral, but the Board on Tuesday adopted changes to reinforce that conclusion.  The new policy requires visitors to senior and junior high schools to maintain a list of students with whom they are affiliated. The principal can then bar a visitor from talking with students not on the visitor's list. At elementary and middle schools, parental consent is required before a visitor may have access to a student.

Scholar Argues Britain No Longer Needs Chief Rabbi

The Forward this week published an interesting opinion piece by a visiting scholar at Oxford arguing that in Britain, the position of Chief Rabbi has outlived its usefulness.  In December, a selection committee from Britain's Orthodox Jewish United Synagogue chose Rabbi Ephraim  Mervis to succeed Lord Jonathan Sacks as Chief Rabbi later this year.  According to op-ed author Keith Kahn-Harris:

[B]ehind the imposing title of chief rabbi lies an often beleaguered office, struggling to reconcile the United Synagogue’s different wings. Outside the United Synagogue, other denominations, from Reform to Haredi, are clear that the chief rabbi does not represent them. At the national level, other Jewish leaders are invited to most state events alongside him....

From the 18th to the early 20th century, the chief rabbi, whose office was modeled closely on the established Church of England, provided an arguably useful service in demonstrating to non-Jewish British society that Jews were respectable enough to be emancipated. But in today’s multicultural Britain, where even the established church doesn’t command the loyalty of more than a small minority of Britons, the chief rabbinate is clearly anachronistic.

Obama Issues Statement On Pope's Resignation

On Monday, President Obama issued the following statement on the resignation of Pope Benedict XVI:

On behalf of Americans everywhere, Michelle and I wish to extend our appreciation and prayers to His Holiness Pope Benedict XVI. Michelle and I warmly remember our meeting with the Holy Father in 2009, and I have appreciated our work together over these last four years.   The Church plays a critical role in the United States and the world, and I wish the best to those who will soon gather to choose His Holiness Pope Benedict XVI’s successor.

High School Students Object To Prom Being Open To LGBT Classmates

Time reported yesterday that in Sullivan, Indiana, a group of high school students are unhappy with the decision by the principal of Sullivan High School that anyone, including same-sex couples, can attend the high school prom.  A group of students met Sunday at a church to discuss holding a separate event that would exclude LGBT students. One supporter of the alternative prom commented: "We believe what the Bible says, that it says it’s wrong. We love the homosexuals, but we do not condone what they’re doing."

Artist Appeals Russian Court's Fine For Causing Religious Offense By Selling Pussy Riot Shirts

In Russia, fallout from last year's conviction of members of the punk rock band Pussy Riot for their protest performance in Moscow's Christ the Savior Cathedral continues. RAPSI today reports that in the Siberian city of Novosibirsk, artist Artyom Loskutov has filed an appeal of a 1000 ruble ($33 US) fine imposed on him by a magistrate's court for causing religious offense by selling Pussy Riot T-shirts.  In his appeal of last month's administrative case against him, Loskutov argues that his actions cannot be seen as causing religious offense.

European Court Rejects Mosque's Complaint Against Azerbaijan

The European Court of Human Rights last week, in a Chamber Judgment, dismissed claims against the government of Azerbaijan brought by a Muslim congregation in Baku.  In Juma Mosque Congregation v. Azerbaijan, (ECHR, Feb. 8, 2013), the congregation sued complaining that the government refused to re-register the congregation unless it subordinated itself to the Caucasus Muslim Board. The congregation was evicted from the state-owned Juma Mosque which they had occupied for 12 years.  The court held that the congregation had failed to exhaust the domestic remedies available to challenge the re-registration refusal. On the congregation's complaint that it was evicted from the mosque, the court held that there is no protected right for a religious group to obtain a place of worship from state authorities.

Becket Fund issued a press release on the decision saying:

The mosque was targeted by the authorities because it would not agree to replace its existing religious leader, Ilgar Ibrahimoglu Allahverdiyev–a prominent democracy and religious liberty activist–with a government-appointed imam

Good News Clubs Sue Claiming Unequal Treatment By School District

In Harrisburg, Pennsylvania last week, the organization that operates after-school Good News Clubs filed suit in federal court challenging on constitutional grounds the school district's refusal to include it as a non-profit community service group that may use school facilities without charge.  Instead the district told the group that it would be charged $1200 per year per school for after-school use of space for its activities. The complaint (full text) in Child Evangelism Fellowship of Dauphin County, Inc. v. Harrisburg School District, (MD PA, filed 2/8/2013), alleges:

In depriving Plaintiff access on equal terms, the District applied its Policy in an unconstitutional manner, thereby violating the free speech, free exercise, due process, and equal protection clauses of the First and Fourteenth Amendments tothe United States Constitution.

The Harrisburg Patriot-News reports on the lawsuit.

Israeli Police Detain 10 Jewish Women In Conflict Over Egalitarian Prayer Customs At Western Wall

In Israel, the ongoing struggle over Jewish women's rights to egalitarian prayer at the Western Wall in Jerusalem continues.  The New York Times and the Jerusalem Post report that earlier today ten women were detained by police after the women prayed there wearing the type of prayer shawls (tallitot) traditionally worn by men.  The Orthodox Jewish authorities who control activities at the Western Wall allow women to wear colorful "female style" prayer shawls that resemble a scarf, but do not allow "male tallitot" which are blue and white or black and white and are worn folded across the shoulders. The Israeli Supreme Court ruled in 2003 that worshipers at the Western Wall must "uphold the customs" of the site. The group known as Women of the Wall have gathered once a month for the last 24 years on Rosh Chodesh (the beginning of each Jewish month) to challenge the Orthodox limitations on women's rights there.  Police confiscated male prayer shawls carried by women through security check points, but men sympathetic to their cause smuggled in prayer shawls for them to wear.

With the women praying at the Wall today were veterans from the 1967 Six Day War who fought at the Western Wall.  Those detained by police-- after prayers were completed and they were exiting the site-- included two U.S. rabbis, an American-born Israeli Reform Rabbi who is the sister of comedienne Sarah Silverman, and a pregnant rabbinical student. Apparently some of the women did not agree to the conditional release that typically includes a bar on them from entering the Western Wall Plaza for 15 days.

Pope Benedict XVI Will Resign On Feb. 28

Pope Benedict XVI announced (full text and audio) today that he will resign the Papacy on Feb. 28:

[I]n today’s world, subject to so many rapid changes and shaken by questions of deep relevance for the life of faith, in order to govern the bark of Saint Peter and proclaim the Gospel, both strength of mind and body are necessary, strength which in the last few months, has deteriorated in me to the extent that I have had to recognize my incapacity to adequately fulfill the ministry entrusted to me. For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter, entrusted to me by the Cardinals on 19 April 2005, in such a way, that as from 28 February 2013, at 20:00 hours, the See of Rome, the See of Saint Peter, will be vacant and a Conclave to elect the new Supreme Pontiff will have to be convoked by those whose competence it is.

Reporting on developments, the New York Times commented: "While there had been questioning about his health and advancing years, his announcement — even by the Vatican’s official account — stunned many."

Parishioner's Arrest For Trespass Does Not Violate 1st or 4th Amendments

In Lye v. City of Lacey, (WD WA, Feb. 8, 2013), a Washington federal district court rejected claims that police officers violated Hui Son Lye's 1st and 4th Amendment rights when they arrested her for trespass at the request of Sacred Heart Catholic Church. The Church issued Lye a "no trespass" order after she disrupted services several times with her demands that the Church conduct Mass in Korean.

Recent Articles of Interest

From SSRN:

• Yossi Nehushtan, What are Conscientious Exemptions Really About?, (Oxford Journal of Law and Religion, Forthcoming).
• Ivan E. Bodensteiner, Are Catholic Bishops Seeking a Religious Preference or Religious Freedom?, (Valparaiso University Legal Studies Research Paper No. 13-1, Feb. 2013).
• Lena Salaymeh, Commodifying 'Islamic Law' in the U.S. Legal Academy, (Journal of Legal Education, 2014, Forthcoming).
• Mark Strasser, The Endorsement Test Is Alive and Well: A Cause for Celebration and Sorrow, (39 Pepperdine Law Review 1273-1315 (2013)).
• George Harinck and Hans-Martien Ten Napel, Democracy: Instrument for or Expression of a Christian Political Order?, (Journal of Inter-Religious Dialogue, Issue 11, p. 42, 2013).
• Mark Strasser, Leaving the Dale to Be More FAIR: On CLS v. Martinez and First Amendment Jurisprudence, (11 First Amendment Law Review 235-89 (2012)).
• Matthew B. O'Brien, Brief of Amicus Curiae Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal, (January 29, 2013).

Court Dismisses Contraceptive Coverage Mandate Challenge By Illinois Catholic Organizations On Standing and Ripeness Grounds

In Conlon v. Sebelius, (ND IL, Feb. 8, 2013), an Illinois federal district court dismissed on standing and ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by Catholic dioceses and related Catholic Charities organizations in Joliet and Springfield, Illinois, as well as by a Catholic high school. The court concluded that the government's March 2012 Advance Notice of Proposed Rulemaking made it clear that the government intends to address concerns expressed by employers with religious objections to contraception. The Chicago Tribune reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Beaver County Jail, 2013 U.S. Dist. LEXIS 13702 (WD PA, Feb. 1, 2013), a Pennsylvania federal magistrate judge dismissed an inmate's claim that his free exercise rights were violated by the refusal to provide him with vegetarian meals.

In Sloane v. Nevada, 2013 U.S. Dist. LEXIS 13332 (D NV, Jan. 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185431, Oct. 12, 2012) and allowed a Jewish inmate to proceed with his complaint that Seder supplies sent to him were delivered too late for him to use them for the First Seder. However the court dismissed his complaint that he did not receive kosher for Passover food on two days.

In Moore v. Gloucester County Jail, 2013 U.S. Dist. LEXIS 15326 (D NJ, Feb. 5, 2013), a New Jersey federal district court dismissed a Muslim inmate's complaint that while being held in the county jail, on two occasions his prayers were interrupted.  The court also dismissed his complaint that the jail does not provide Muslim inmates with a place to conduct prayers or attend Jumuah service, and only provides for church services. Plaintiff sought $50 million in damages.

In Roberts v. Schofield, 2013 U.S. Dist. LEXIS 16042 (MD TN, Feb. 6, 2013), a Tennessee federal magistrate judge recommended dismissing, in part on mootness grounds, the complaint by two prisoners that their correctional facility did not serve proper Kosher meals nor allow them to engage in certain other Jewish religious observances. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 25271, Feb. 25, 2013. UPDATE2: The court subsequently granted plaintiff's motion to reconsider and refused to dismiss certain official capacity claims against defendants, and denied a motion to dismiss for improper venue. (2013 U.S. Dist. LEXIS 62013, April 30, 2013).

In Haas v. Spencer, 2012 Mass. Super. LEXIS 374 (MA Super., Dec. 6, 2012), a Massachusetts state trial court rejected two inmates' constitutional and statutory challenges to their temporary suspension of access to the building in which religious services were held. The step was taken because the one of the inmates had gotten the Catholic chaplain improperly to mail letters for them while the other got the chaplain to look up information in the Inmate Management System.

In Davilla v. National Inmate Appeals Coordinator, 2013 U.S. Dist. LEXIS 15991 (SD GA, Feb. 6, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16940, Jan. 22, 2013) and dismissed an inmate's claim that his rights under the 1st Amendment and RFRA were infringed when the requirement that he purchase all personal religious property from the commissary inventory or through an approved catalogue source precluded him from obtaining Santeria beads and cowrie divination shells that contain "ache".

In Rainey v. Huertas, 2013 U.S. Dist. LEXIS 16798 (D CO, Feb. 7, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16799, Jan. 17, 2013) and dismissed an inmate's claim that his religious rights were infringed when the religious diet he was served was not a "mechanical soft diet" as ordered by the facility's medical department.

Former Prison Chaplain's Employment Discrimination Claims Rejected

In Askew v. New York State, (ND NY, Feb. 6, 2013), a New York federal district court dismissed employment discrimination and retaliation claims brought by an African-American Protestant minister who worked as the Department of Corrections Protestant Ministerial Program Coordinator. Plaintiff claimed that her supervisors discriminated in favor of the Catholic Coordinator in the manner they approved of meetings and training opportunities, assigned duties, and offered speaking appearances. The court also dismissed her claim that her free speech and free exercise rights were infringed when she was not approved to speak or participate in Protestant faith and community activities in her official capacity.

Bergholz Amish Defendants Receive Sentences Up to 15 Years for Hate Crime Assaults

The U.S. Attorney's Office for the Northern District of Ohio announced that on Friday 16 defendants were sentenced on hate crime charges growing out of a series of assaults on members of a rival Amish group in which the victims'  hair or beards were cut. (See prior posting.) As reported by the Cleveland Plain Dealer, Bergholz Amish bishop Samuel Mullet received a 15 year sentence. Other defendants received sentences ranging from 7 years to just over one year. In imposing the sentences, federal district judge Dan Aaron Polster told the defendants:

Each and every one of you did more than terrorize, traumatize and disfigure the victims.You trampled on the Constitution.