Recent Prisoner Free Exercise Cases

In McBryde v. Thomas, 2013 U.S. Dist. LEXIS 169260 (D MT, Nov. 27, 2013), a Montana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 169522, Nov. 7, 2013) and allowed an inmate to move ahead with his complaint that the Parole Board conditioned his parole on successful completion of a chemical dependency treatment program that required him to accept religious teachings.

In Kyles v. Kusey, 2013 U.S. Dist. LEXIS 147910 (ED MI, Oct. 15, 2013), a Michigan federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 173112, Sept. 5, 2013) and permitted a Muslim inmate to proceed with his complaint that his free exercise rights were violated when bag meals he was given during the Ramadan fast provided insufficient nutritional value.

In Morrow v. Kelley, 2013 U.S. Dist. LEXIS 173439 (ED AR, Dec. 11, 2013), and Arkansas adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 173437, Nov. 15, 2013) that an inmate be allowed to move ahead with his claim that correctional officers confiscated religious texts from his cell.

In McDaniels v. Elfo, 2013 U.S. Dist. LEXIS 174285 (WD WA,Dec. 12, 2013). a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 174301, Aug. 19, 2013) and allowed a Muslim inmate to proceed with his free exercise claims challenging the denial of Halal meat, the nutritional adequacy of the Ramadan diet and the denial of pain reliever during Ramadan. However the court dismissed complaints regarding failure to furnish an Arabic Qur'an, Ramadan meal times and dates, and a concluding feast.

In Janali v. Corrections Corporation of America. 2013 U.S. Dist. LEXIS 174825 (SD MS, Dec. 13, 2013), a Mississippi federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 174827, Oct. 30, 2013) and dismissed a Shiite Muslim inmate's complaint that there were not Jummah services for Shiite inmates separate from Sunnis. It also dismissed his complaint that he was removed from the kosher diet plan when he purchased clams, even though clams are permissible under Halal rules. He sought a Halal diet.

In Bramlett v. Isaacs, 2013 U.S. Dist. LEXIS 175213 (SD IL, Dec.12, 2013), an Illinois federal district court permitted plaintiff who is confined as a sexually dangerous person to proceed with his claim that his free exercise and RLUIPA rights were violated when the program administrator lowered his evaluation score because he refused for religious reasons to comply with the recommendation that he engage in masturbation to accomplish arousal control. He also claims retaliation because of the grievance he filed over this.

In Grayson v. Goetting, 2013 U.S. Dist. LEXIS 175242 (SD IL, Dec. 11, 2013), an Illinois federal district court permitted an African Hebrew-Israelite inmate to proceed with his claims that his free exercise and RLUIPA rights were violated when he was required to cut his dreadlocks. He was also permitted to proceed with a retaliation claim, but was denied an order for transfer to a different facility.

New Anti-Semitic Manifestations Reported In Europe

New examples of anti-Semitism in Europe have made the news in recent days.  EJP reports on the growing criticism of an anti-Semitic Christmas carol broadcast on Dec. 6 by the state-operated Romanian channel TVR3 Verde, a channel directed to rural communities. According to the report:

In the carol, sung by a choir, the “jidovi”, a derogatory term for Jews, are reproached for having “mocked” the Christ Child. “Only in the chimney, in the smoke, the ‘jidov’ is good”, the lyrics further say.

The U.S. embassy in Bucharest issued a statement on Dec. 12 calling the broadcast "an unacceptable display of anti-Semitism." Romania's foreign minister, as well as the Israeli embassy in Bucharest have also condemned the broadcast.

In another move, reported on briefly in the English language press by AFP, but garnering more attention in the Romanian language press, Romania's Jewish community is angered by the ruling Social Democratic Party's nomination of Lucian Bolcas, former vice-president of the nationalistic, right-wing Greater Romania Party, to be a judge on Romania's Constitutional Court. The Centre for the Fight against Anti-Semitism calls Bolcas's ideas "racist and anti-Semitic."

Meanwhile, Haaretz and JTA report that in Italy a spokesman for the Forconi (Pitchfork) Movement which led widespread populist protests against Prime Minister Enrico Letta’s government, its austerity program and the European Union last week, made blatantly anti-Semitic statements in an interview Friday with the newspaper La Repubblica.  Andrea Zunino told the paper:

We want the government to resign.  We want the sovereignty of Italy, which today is slave to the bankers, like the Rothschilds. It is curious that five or six of the richest people in the world are Jews, but this is something I need to investigate.

Australia's Highest Court Invalidates Capital Territory's Marriage Equality Law

In Commonwealth of Australia v. Australian Capital Territory, (Australia High Ct., Dec. 12, 2013), Australia's highest court invalidated the Australian Capital Territory's Marriage Equality (Same Sex) Act 2013 as inconsistent with federal law.  As summarized by the High Court's press release:

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The decision comes only 5 days after the Australian Capital Territory's new law took effect. Some 27 same-sex couples got married during that period. According to CNN, those marriages will be annulled.

Federal Court Strikes Down Most of Utah's Statute Banning Polygamy

In a ground-breaking decision in Brown v. Buhman, (D UT, Dec. 13, 2013), a Utah federal district court held that most of Utah's statute barring polygamy is unconstitutional.  Utah Code §76-7-101 provides:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Plaintiffs, the polygamous family featured on the TLC reality series "Sister Wives," sued seeking a declaratory judgment that Utah's ban on plural marriage is unconstitutional. (See prior posting.) Plaintiffs are members of a religious group that believes polygamy is a core religious practice.  Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights.  Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test.  Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs' rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness. In ruling on this portion of the statute, the court said that it was not constrained by the U.S. Supreme Court's 1878 decision in Reynolds v. United States upholding the federal anti-bigamy statute because that decision dealt only with a ban on multiple marriages, not on cohabitation while married.

Nevertheless, Judge Waddoups wrote a lengthy and unusual critique of Reynolds,  analyzing it in terms of Prof. Edward Said's theory of "Orientalism."  The court said that the social harm from Mormon polygamy perceived by the Supreme Court in Reynolds was the introduction of "a practice perceived to be characteristic of non-European people—or non-white races—into white American society."

The district court also severely limited the application of the remaining ban in Utah's bigamy statute-- the ban on purporting to marry a third person while already married to someone else.  In a 2006 decision in State of Utah v. Holm (see prior posting), the majority of the Utah Supreme Court held that this statutory ban applies to polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.  Judge Waddoups initially says that he is bound by the Utah Supreme Court's interpretation of the state bigamy statute.  However he appears to back off of this limitation when he faces the question of the constitutionality of the ban on purporting to marry. He says that this portion of the statute "raises the same constitutional concerns addressed in relation to the cohabitation prong...." and can be saved only by a narrowing construction.  He finds that in the views of the dissent in the Holm case:

the court agrees with Chief Justice Durham['s dissent] that the “purports to marry” prong should be interpreted “as referring to an individual’s claim of entry into a legal union recognized by the state as marriage. The phrase does not encompass an individual’s entry into a religious union where there has been no attempt to elicit the state’s recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import."

The Salt Lake Tribune reports on the decision. Orin Kerr and David Kopel both analyze the case at Volokh Conspiracy.

District Court Orders Mt. Soledad Cross Removed; Appeals Expected

On Thursday, yet another opinion was handed down in the litigation challenging the constitutionality of the cross that is part of the Mt. Soledad veterans' Memorial. Various lawsuits over over the 43-foot high cross on public property in California have spanned 24 years.  In 2011, the 9th Circuit (see prior posting) held that the Memorial conveys an endorsement of religion that violates the Establishment Clause, but added: "This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial." The 9th Circuit remanded the case to the district court to determine the appropriate remedy.

After attempts to appeal the 9th Circuit's ruling were rejected, the district court in Trunk v. City of San Diego, (SD CA, Dec. 12, 2013) has now held that the cross must be removed.  It said that despite the 9th Circuit's statement that changes in the Memorial might make it constitutionally acceptable, language in the 9th Circuit's opinion "makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation."  This is unlikely to be the last word, however, because the court also stayed its order pending the resolution of any appeal.  Liberty Institute says that it will appeal the ruling, all the way to the Supreme Court if necessary. Wall Street Journal reports on the decision.

Final Version of Defense Authorization Bill Contains Military Religious Freedom Provisions

The House of Representatives yesterday passed H Res. 441 concurring in the Senate Amendments to the 2014 Defense Authorization Bill, H.R. 3304, (with one minor amendment so that it must still go back to the Senate for final approval). (Full text of resolution and bill.) As is typical with military authorization and spending bills, this one contains several provisions on religious freedom in the military.

Section 532 tweaks the language in current law on conscience rights of those in the military, so that the new provision (new language in italics) reads:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The section also sets a 90-day deadline for issuance of regulations implementing this section, and requires the Pentagon to consult with faith-group representatives who endorse military chaplains in drafting the regulations.

Section 533 then requires a DOD Inspector General's report 18 months later on Armed Forces compliance with the ban on adverse personnel action based on conscience, moral principles or religious beliefs. The IG is to consult with the Armed Forces Chaplain Board as appropriate in preparing the report.

Section 534 requires that within one year:

The Secretary of Defense shall conduct a survey among a statistically valid sample of military chaplains of the regular and reserve components of the Armed Forces, to be selected at random, to assess whether—

(1) restrictions placed on prayers offered in a public or non-religious setting have prevented military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group; and 

(2) those restrictions have had an adverse impact on the ability of military chaplains to fulfill their duties to minister to members of the Armed Forces and their dependents.

The Joint Explanatory Statement (at pp. 63-65) explains the House-Senate compromises that led to these provisions. The Statement also contains the following language (pg. 82) that appears to be a response to criticism by some conservative Christian groups (background) that the military has given preferential access in policy making to the Military Religious Freedom Foundation:

The House bill contained a provision (sec. 530E) that would require the Department of Defense to provide to the Committees on Armed Services of the Senate and the House of Representatives advance written notice of any meeting held between Department employees and civilians for the purpose of writing, revising, implementing, enforcing, or seeking advice, input, or counsel regarding military policy related to religious liberty.

The Senate committee-reported bill contained no similar provision.

 The agreement does not include this provision.

We believe the Department and the military services should proactively reach out to and meet with religious groups of all faiths when formulating and revising policies that impact religious freedom and tolerance within the military. We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.

Sex Abuse Plaintiff Identifies Himself In Lawsuit Against Chicago Archdiocese

In Chicago, numerous sex abuse victims of former Catholic priest Daniel McCormack  have filed "John Doe" lawsuits, and the Chicago archdiocese has settled many of them.  Yesterday's Chicago Tribune reports that the first case against McCormack in which the victim has identified himself was filed Wednesday.  Plaintiff, 27-year old Darryl McArthur, who like all of McCormack's victims is African-American, says he took this step to combat "the culture of secrecy" surrounding sexual abuse in the African-American community. McArthur has agreed to try to settle the lawsuit through a mediation arrangement that has resolved 20 other claims against the Chicago Archdiocese.  Meanwhile, the accused former priest remains in a mental health facility while a judge considers whether to commit him indefinitely as a sexually violent offender.

Appeal In Ontario Court Seeks To Enforce Quebec Foster Care Order Against Alleged Jewish Religious Cult

As previously reported, last month the insular Orthodox Jewish sect Lev Tahor fled the Canadian province of Quebec and moved to Chatham-Kent, Ontario to avoid Quebec child welfare officials.  Some charge that Lev Tahor is a religious cult under control of its leader Rabbi Shlomo Helbrans. Now the Toronto Star reports that on Dec. 4, Chatham-Kent Children’s Services asked a Justice of the Peace for a warrant that would let them carry out a Quebec court order to place 14 Lev Tahor children in foster care under the guidance of Quebec child-welfare authorities. Quebec claims neglect, psychological abuse, poor nutrition, health problems and home schooling that fails to meet provincial standards.  The Ontario Justice of the Peace rejected the application for the warrant on Dec. 7, and Ontario authorities have filed an appeal.  A brief hearing on the appeal was held Wednesday, with a full hearing scheduled for Dec. 23. Meanwhile Lev Tahor will appeal the Quebec court ruling that first ordered the children into foster care even though they had been moved to Ontario.

EU Directive Requires Companies To Give Same Benefits to Civil Partners Where Same-Sex Marriage Is Unavailable

In Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (Eur. Ct. Jus. 5th Chamber, Dec. 12, 2013), the 5th Chamber of the European Court of Justice held that under Council Directive 2000/78/EC that creates a framework for equal treatment in employment, it amounts to direct discrimination for a French firm to deny a same-sex couple entering a civil partnership the same benefits given couples being married. The court concluded that:

an employee who concludes a PACS [civil solidarity pact] with a person of the same sex [must be] allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

Art Leonard Observations has analysis of the decision. [Thanks to Alliance Alert for the lead.]

Taxpayer Suit Challenges North Carolina School Voucher Program

This week some 25 North Carolina taxpayers filed a state court lawsuit challenging the constitutionality of the state's new voucher program for students attending private schools, including religiously sponsored schools. The complaint (full text) in Hart v. State of North Carolina, (Super. Ct., filed 12/11/2013), alleges that the voucher program violates provisions of the North Carolina constitution calling for a uniform system of free public schools. North Carolina Justice Center's website and the website of the North Carolina Association of Educators have additional information on the lawsuit.  AP's coverage of the lawsuit has additional background on the voucher program.

Foundation Buys Native American Items At Auction To Return Them To Tribes

As previously reported, last week a French court refused to stop a Paris auction house from selling 25 sacred Native American objects, despite objections from the American Embassy.  It was known that one of the sacred masks was purchased by the Hopi's French lawyer who intends to return it to the tribe. Now it turns out that the other items will also go back to the tribes who claim them. In a press release this week, the Annenberg Foundation announced that it purchased the remaining 24 sacred artifacts at the auction for a total of $530,000 "for the sole purpose of returning them to their rightful owners. Twenty-one of these items will be returned to the Hopi Nation in Arizona, and three artifacts belonging to the San Carlos Apache will be returned to the Apache tribe." KUOW News has more on the story.

James Dobson's Family Talk Sues Over Contraceptive Coverage Mandate

This week another religious non-profit filed a challenge to the Affordable Care Act contraceptive coverage mandate.  The complaint (full text) in Dobson v. Sebelius, (D CO, filed 12/10/2013), seeks an injunction to prevent enforcement of the mandate against Family Talk, its founder James Dobson, and the third party administrators of its health insurance plans. The suit alleges:

Based on the Bible’s religious and moral teachings, Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other means, abortion-inducing drugs and devices, and related education and counseling, including by means of acting after fertilization to prevent the newly formed embryo from implanting into his or her mother’s uterus, is an intrinsic evil and a sin against God for which Plaintiffs will be held accountable.

ADF issued a press release announcing the filing of the lawsuit.

India's Supreme Court Reverses Lower Court's Invalidation of Ban On Homosexual Acts

In Koushal v. NAZ Foundation, (Sup. Ct. India, Dec. 11, 2013), a 2-judge panel of India's Supreme Court reversed a lower court ruling that had held unconstitutional Section 377 of the Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (See prior posting.) Rejecting the lower court's holding that the statute violated constitutional provisions on equal protection and non-discrimination, Justice Singhvi wrote:

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

The Supreme Court also rejected the lower court's holding that the statute infringes the substantive due process right to privacy:

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

Responding to the argument that police have misused the law, the Supreme Court said:

Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on ... those belonging to the LGBT community.  [T]he mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.

Times of India reports on the decision. 

Britain's Supreme Court Holds Scientology Chapel Is Place of "Religious Worship" Where Marriages May Be Solemnized

In R (on the application of Hodkin and another) .v Registrar General of Births, Deaths and Marriages, (UK Sup. Ct,, Dec. 11, 2013), Britain's Supreme Court overruled a 1970 Court of Appeal case and held that a chapel of the Church of Scientology qualifies under the Places of Worship Registration Act 1855 as "a place of meeting for religious worship." Therefore the Registrar General should have recorded it as a place at which marriages may be solemnized under the Marriage Act 1949.  In so holding,  Lord Toulson wrote:

... [R]eligion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism.... 

For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science.... Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

The court went on to hold that the Scientology chapel is a place of meeting for religious "worship," concluding that it is sufficient that the location is one where members perform religious rites, whether or not the rites involve adoration of a deity:

fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite ... are more fitting for theologians than for the Registrar General or the courts. 

Lord Wilson wrote a separate concurring opinion, joined by 3 other justices holding that the Registrar General's role in registering houses of worship is more than ministerial. The court also issued a press summary of the decision.  Time reports that the decision may have broad ramifications.  (See prior related posting.)

Nativity Scene On Air Base Creates Controversy

The annual flare up over religious displays on public property at Christmas time appears to have moved this year to military bases. AP reports that at Shaw Air Force base in South Carolina last Friday, a group of volunteers from the base chapel set up a nativity display near a small lake where a tree lighting ceremony was scheduled for Friday evening.  The Military Religious Freedom Foundation, a church-state watchdog, lodged a complaint with the Pentagon and officials ordered the display taken down because it reflects only one religious tradition.  God and Country blog details some of the negative reaction to the removal of the display.

House Hearing Focuses On Human Rights Concerns of Copts In Egypt.

Yesterday two subcommittees of the U.S. House Foreign Affairs Committee held a joint hearing on Human Rights Abuses in Egypt. Taking place on Human Rights Day, the hearing focused particularly on the plight of the Coptic Christian minority in Egypt.  Video of the hearings and the full text of prepared statements by the five witnesses who testified are available on the Committee's website.

Controversy Over U.S. Commitment To Return Collection of Jewish Documents To Iraq

Religion News Service reported yesterday on the growing controversy over what the United States should do with a trove of Jewish documents, books and scrolls found in 2003 by U.S. troops in Iraq.  The items (now known as the Iraqi Jewish Archive) were discovered in the flooded basement of Saddam Hussein’s Baghdad intelligence headquarters.  They were rescued and taken back to the United States for preservation and restoration pursuant to an August 2003 Agreement (full text) between the Coalition Provisional Authority and the National Archives. That Agreement called for the return of physical custody of the documents to the Coalition Provisional Authority or its designee once preservation work was completed and a public exhibition of the collection was held. (Art. I, Par. 4).  A 2011 agreement between the State Department and the National Archives (full text) indicates that the Coalition Provisional Authority designated the Iraqi Ministry of Culture as the agency responsible for the documents.

The State Department says these agreements call for the U.S. to return the collection (some of which are now on display in the National Archives Building in Washington) to Iraq in the Summer of 2014.  Groups in the Jewish community and members of Congress are questioning the State Department's plans.  A website set up by groups representing Middle Eastern and North African Jews argues:

There is no justification, nor logic, in sending these Jewish archives back to Iraq, a place that has virtually no Jews, no interest in Jewish heritage and no accessibility to Jewish scholars or the descendants of those who once possessed them.

A bi-partisan letter to Secretary of State Kerry (full text) signed by 47 members of Congress last month argues that the collection should be returned to the descendants of the Iraqi Jewish community outside of Iraq.  It is estimated that there are only 5 Jews left in Iraq today.

Court Orders Florida Prisons To Provide Kosher Diet Alternative

In an important prisoner free exercise decision last week, a federal district court granted a preliminary injunction ordering the Florida Department of Corrections to provide a kosher diet by July 1 to all prisoners with a sincere religious basis for keeping kosher.  The decision comes in what appears to be the first Justice Department suit directly against a state for violation of the prisoner provisions of the Religious Land Use and Institutionalized Persons Act. In United States v. Secretary, Florida Department of Corrections, (SD FL, Dec. 6, 2013), the court held that the United States was likely to prevail on the merits of its claim that Florida's religious diet policy violates RLUIPA.

The court held that Florida had not shown a compelling interest in a blanket denial of kosher food to prisoners-- in part because the state argued somewhat inconsistently that it was committed to providing kosher meals to all eligible inmates. The court also rejected Florida's argument that it had a compelling interest based on cost savings, saying:

While cost control may be a compelling interest in certain situations ... RLUIPA expressly contemplates that facilitating religious exercise "may require a government to incur expenses in its own operations.''.... The costs initially identifed by Defendants in this litigation are not of a compelling magnitude.... Even if participation were ... 1,000 prisoners per day - the cost would only be $2.12 million per year, or .001 of FDOC'S budget. No compelling interest is furthered by avoiding such a relatively minor expense....

The court additionally held invalid several provisions in a proposed religious diet program that the state had developed while the litigation was pending.  These include conditioning eligibility on clergy interpretations of religious doctrine or on prisoners' knowledge of religious law; summary suspension of prisoners from the program if they consume any item not listed as kosher; and removal from the program of prisoners who eat less than 90% of available meals, even if they consume only kosher food.  (See prior related posting.) [Thanks to Luke Goodrich for the lead.]

Millett, Who Helped Author Important RFRA Brief, Confirmed For D.C. Circuit

As reported by the Washington Post, the U.S. Senate today, by a vote of 56-38, confirmed Patricia Millett to serve on the U.S. Court of Appeals for the D.C. Circuit.  Millett served as an Assistant to the Solicitor General at the U.S. Department of Justice from 1996-2007.  While serving in that role, she was one of the attorneys who wrote the U.S. government's brief in City of Boerne v. Flores, 1997 U.S. S. Ct. Briefs LEXIS 185, arguing unsuccessfully that the provisions of the Religious Freedom Restoration Act that applied to state governments represented a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment.

Security Guard Pleads Guilty to Federal Charges of Defacing Religious Objects

The U.S. Attorney's Office for the Western District of Tennessee announced that 25-year old Justin Baker yesterday pleaded guilty to violating the civil rights of students and faculty of the Margolin Hebrew Academy.  Baker, a security guard at a Jackson (TN) hotel, defaced a Torah and prayer books left in a hotel meeting room by students after they used the room to conduct a Sabbath service:

Baker admitted that while employed as a security guard at the hotel, he discovered the items in the room, and defaced the Torah, the prayer books, and the musical instruments with profanity, anti-Semitic phrases, and Satanic writing. He also admitted to spitting on the Torah. Photographic evidence presented during the hearing confirmed that the Torah was defaced with profanity and phrases including "Hail Satan."