Recent Articles of Interest

From SSRN:

• Bernard M. Levinson & Michael Bartos, 'This is the Manner of the Remission': Legal Exegesis and Eschatological Syntax in 11QMelchizedek, (Journal of Biblical Literature 132:2 (2013): 351-371).
• Carl F. Minzner, Book Review of 'A Confucian Constitutional Order: How China's Ancient Past Can Shape its Political Future' by Jiang Qing, edited by Daniel Bell and Ruiping Fan (Princeton University Press), (The China Quarterly, 2013).
• Pasquale Annicchino, Religion and EU Institutions, (Ecclesiastical Law Journal, 15, 3, 2013, pp. 326-331).
• Benito Alaez Corral, Some Constitutional Thoughts About the Islamic Full Veil Ban in Europe, (Vienna Journal of International Constitutional Law, Forthcoming).
• Carlo A. Pedrioli, Constructing the Other: U.S. Muslims, Anti-Sharia Law, and the Constitutional Consequences of Volatile Intercultural Rhetoric, (Southern California Interdisciplinary Law Journal, Vol. 22, pp. 65-108, 2012).
• Janet Dine, Regulating the Resource Curse: The Devil versus God in Human Rights Discourse and Operationalizing Remedies, (Queen Mary School of Law Legal Studies Research Paper No. 152/2013).

Recent Prisoner Free Exercise Cases

In Hazle v. Crofoot, (9th Cir., Aug. 23, 2013), the 9th Circuit held that an inmate whose parole was revoked after he refused to participate in a faith-based drug treatment program is entitled to compensatory damages. The court also remanded for further consideration plaintiff's claim for injunctive relief.

In Warner v. Patterson, (10th Cir., Aug. 22, 2013), the 10th Circuit dismissed as moot an Odinist inmate's RLUIPA challenge to the denial to him of break-the-fast boxes and a blanket ban on materials from a particular publisher. Plaintiff was no longer in custody of the Utah Department of Corrections but, instead, had been temporarily transferred to federal custody to face federal charges.

In Smith v. Donahue, 2013 Ind. App. Unpub. LEXIS 1069 (IN App., Aug. 14, 2013), an Indiana appellate court upheld the denial of a new trial to an inmate who lost in a jury trial on his claim that authorities impeded his ability to convert from Roman Catholicism to Wicca, denied him items he needed to practice his new religion, treated him differently from other inmates and established Christianity as an institutional religion.

In Bell v. Parsons, 2013 U.S. Dist. LEXIS 117155 (WD NC, Aug. 19, 2013), a North Carolina federal district court dismissed a Muslim inmate's complaint that this observance of Ramadan was disrupted when the contents of his cell, including  a prayer rug, prayer oils, two Qur'an texts, two kufis, a prayer schedule and plastic prayer beads were removed as part of an emergency response to fires being set by prisoners.

In Rognirhar v. Foston, 2013 U.S. Dist. LEXIS 117291 (ED CA, Aug. 19, 2013), a California federal district court dismissed as moot a complaint by an Asatru inmate that he was not permitted to wear an uncut beard. New regulations permit long beards.

In Alan v. Twaddell, 2013 U.S. Dist. LEXIS 117404 (CD IL, Aug. 20, 2013), an Illinois federal district court allowed an African Hebrew Israelite inmate to move ahead with his complaint that his rights have been infringed because he is not able to get his dinner served after sunset on Saturday night. He believes he must fast on his Sabbath until sunset.

In Legate v. Stephens, 2013 U.S. Dist. LEXIS 117236 (SD TX, Aug. 19, 2013), a Texas federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 117770, July 17, 2013) and permitted a Native American inmate to proceed with his claim that the prison's grooming policy (requiring him to cut his hair), as well as other security and health policies (restricting his use of tobacco and wearing his medicine pouch) burden his religious practice.

In White v. Linderman, 2013 U.S. Dist. LEXIS 117853 (D AZ, Aug. 20, 2013), an Arizona federal district court permitted a Messianic Jewish inmate to proceed with his complaint that he has been denied a kosher diet. The court criticized the prison's requirement that plaintiff  furnish documentation from an outside source that Messianic Jews follow kosher rules.

In Nimmons v. Fischer, 2013 U.S. Dist. LEXIS 117737 (WD NY, Aug. 20, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 118059, July 30, 2013) and dismissed without prejudice an inmate's complaint that his 1st Amendment rights were infringed when authorities confiscated a manuscript he was writing regarding The Nation of Gods and Earths inmates.

In Clay v. Livingston, 2013 U.S. Dist. LEXIS 118116 (ND CA, Aug. 20, 2013), a California federal magistrate judge dismissed as moot, with leave to amend, a Muslim inmate's complaint that Muslim inmates who are fasting during Ramadan are not receiving their lunches.

In Houston v. Schriro, 2013 U.S. Dist. LEXIS 118867 (SD NY, Aug. 20, 2013), a New York federal district court permitted a Muslim inmate to move ahead with his claim that he he was denied low-sodium Halal meals, being told he would have to change his religious preference in order to receive a low sodium diet that would have ameliorated his high blood pressure and high cholesterol.

RLUIPA-- Indecipherable By "Normal People"?

Those who deal on a regular basis with issues under the Religious Land Use and Institutionalized Person Act sometimes forget that the statute can be perplexing to lawyers and judges who do not regularly encounter it.  Nothing illustrates this as vividly as last week's 7th Circuit opinion by Chief Judge Frank Easterbrook in Mutawakkil v. Huibregtse, (7th Cir., Aug. 19, 2013).  In the case the court held that a prison inmate did not suffer a substantial burden on his free exercise rights in violation of RLUIPA by a state prison rule that requires a formal state-court name change before an inmate can use a religious or spiritual name as his only name. Otherwise the name can be used only along with the name under which the individual was committed to prison. Here the inmate, who was serving a long term for murder, wanted to use the name Prince Atum-Ra Uhuru Mutawakkil.  In introducing his discussion of the Religious Land Use and Institutionalized Persons Act, Judge Easterbrook wrote:

This leaves the statute, which often goes by the unpronounceable initialism RLUIPA but which we call "the Act" so that the opinion can be understood by normal people.

Indian State Promulgates Anti-Black Magic Ordinance After Murder of Rationalist Crusader

As reported by the Hindustan Times, the Indian state of Maharashtra became the first state to ban black magic as the governor last night signed into law as an Ordinance-- rather than waiting for state assembly approval-- a long-pending ban on such practices.  An Ordinance remains in effect for 6 months, but can be reissued. As summarized by the Times of India, the new ordinance:

* Prohibits practice, promotion and propagation of human sacrifice, other inhuman, evil and Aghori practices and black magic, unauthorized, illegal practices of medicine or healing or curing by quacks, conmen etc.

* Such practices will be treated as offence and punishable with imprisonment for a term of six months extending up to seven years along with a fine ranging from Rs 5,000 to Rs 50,000. The offences to be non-bailable.

The action follows the murder last week  in Pune of rationalist crusader Narendra Dabholkar. Today's New York Times carries a front-page story on his murder.

Suit Challenges New Jersey's New Law Banning Conversion Therapy For Minors

Yesterday, just days after New Jersey Governor Chris Christie signed  a bill that bans licensed mental health, social work and counseling professionals from engaging in in sexual orientation change therapy with minors, Liberty Counsel announced the filing of a federal lawsuit on behalf of affected counselors challenging the new law. The complaint (full text) in King v. Christie, (D NJ, filed 8/22/2013) claims that the new law violates plaintiffs' free expression and free exercise rights under the federal and state constitutions, as well as parents right to direct the upbringing and education of their children.

USCIRF Issues New Report On Religious Freedom In Burma

The U.S. Commission on International Religious Freedom yesterday issued the findings of a staff visit to Burma in May.  In a Policy Brief titled Burna: Implications of Religious and Ethnic Violence, the report concluded in part:

Burma is currently designated by the State Department as a “country of particular concern” ... as ongoing political reforms have yet to dramatically improve the situation.... Sectarian and societal violence, anti-Muslim exclusionary campaigns, and military incursions have caused egregious religious freedom violations against Muslims and some ethnic minority Christians. Nonetheless, in areas where the military has retreated from daily governance, the worst human rights abuses have receded.... Legal restrictions on some religious activities remain in place, but are enforced sporadically, if at all, depending on region, ethnicity, and religious group. The situation of the ethnic minority Rohingya ... remains a profound humanitarian and political crisis. It threatens to inflame anti-Muslim prejudices in other parts of the country, create large refugee flows in the region, instigate additional sectarian violence and discrimination, and potentially undermine the political reform process. 

Two New Mexico Counties Begin Issuing Same-Sex Marriage Licenses

In New Mexico this week, according to the Santa Fe New Mexican, two county clerks began issuing licenses for same-sex marriages. On  Aug. 21, Doña Ana County Clerk Lynn Ellins began issuing the licenses, saying that there is nothing in state law to prohibit it.  The state attorney general said he would not intervene. Then on Aug. 22, a state trial court judge in Hanna v. Salazar issued a writ of mandamus ordering Santa Fe County Clerk Geraldine Salazar to issue a marriage licence to a same-sex couple who sued after their license application was denied. The county clerk responded enthusiastically, saying:

Now that Judge Singleton has ordered me to issue a license to Messrs. Hanna and Hudson on constitutional grounds, I intend to do so and to issue a license to any same-sex couple who desires one and are otherwise qualified. By complying with the judge’s order we will be issuing licenses legally and will not continue to use limited county resources on further litigation.

At least 45 same-sex couples were issued licenses yesterday.

USCIRF Commissioners Say CPC Redesignation Is Needed

In an Aug. 21 Washington Post op ed, Robert George and Katrina Lantos Swett, chair and vice-chair of the U.S. Commission on International Religious Freedom, strongly criticize the Administration for failing to redesignate "countries of particular concern" (CPC) under the International Religious Freedom Act.  CPC designation indicates that a country has a particularly egregious record with regard to religious freedom.  The op-ed says in part:

The Bush administration issued several designations in its first term but let the process fall off track in its second. The Obama administration issued designations only once during its first term, in August 2011.

 The result? Violators such as Egypt, Pakistan and Vietnam are escaping the accountability that the International Religious Freedom Act is meant to provide.

 Even those nations currently designated as “countries of particular concern” could escape accountability if there are no designations this month; under the law, countries remain designated until removed, but any corresponding penalties expire after two years. Without new designations, sanctions attached in 2011 to Burma, China, Eritrea, Iran, North Korea and Sudan will expire this month. And while those countries are subject to sanctions under other U.S. laws, allowing the International Religious Freedom Act’s sanctions authority to expire would send the disturbing message that the United States won’t implement its own law on religious freedom.

FFRF Has Standing To Challenge Differential Form 990 Requirements

In Freedom From Religion Foundation v. Werfel, (WD WI, Aug. 22, 2013), a Wisconsin federal district court held that the Freedom From Religion Foundation has standing to challenge on Establishment Clause and equal protection grounds the Internal Revenue Service's requirement that secular non-profits file an annual report on Form 990, while churches are not required to file. However the court concluded preliminarily that FFRF is unlikely to be harmed in the future by the requirement that secular non-profits (unlike churches) must file detailed Form 1023 and pay a fee in order to apply for tax exempt status.  FFRF has already filed its application and will not be required to do so again.

New Mexico High Court Says No Human Rights Law Exception For Wedding Photographer

In Elane Photography, LLC v. Willock, (NM Sup, Ct., Aug. 22, 2013), the New Mexico Supreme Court held that the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples. The 1st Amendment does not require an exception for creative or expressive professions. The court reasoned:

A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.

Finally the court held that the New Mexico Religious Freedom Restoration Act does not apply to the case because the government is not a party.

Concurring specially, Justice Bosson said in part:

... [T]his case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.

Wall Street Journal reports on the decision.

Proposed Amendments To Egypt's Constitution Given To President

Al Ahram reports that in Egypt on Tuesday, the 10-member technical committee that had been charged with drafting amendments to Egypt's 2012 constitution gave its proposed draft to interim president Adlhy Mansour. The draft retains Article 2 that declares Islam country's religion, but eliminates Article 219 that sets out rules for determining what is shariah law. The committee also changed Article 6 to ban political parties based on religion or on mixing religion with politics. This could lead to the dissolution of the Muslim Brotherhood's Freedom and Justice Party.

Settlement In Suit Challenging School RFID Badges On Religious Grounds

A settlement has been reached in a suit by a Texas high school student  who objected on religious grounds to wearing a Smart ID badge containing an RFID chip. The student's father claimed that wearing the badge would be the mark of the beast, and he had religious objections to the school tracking his daughter. (See prior posting.) According to today's San Antonio Express News, Andrea Hernandez' magnet school has decided to drop the use of RFID badges. Under the settlement, Hernandez will now be allowed to return to the school.

New York's Increasing Ultra-Orthodox Jewish Population Poses Accommodation Issues

The New York Times yesterday reported on the religious accommodation issues posed by the rising numbers and increased political influence of Hasidic and other ultra-Orthodox Jews in New York City. Now numbering 330,000, they have tangled with city regulatory authorities over issues such as female life guards at women-only swim sessions at a municipal pool, use of ground water wells for water to produce matzah, and businesses in Hasidic neighborhoods posting signs barring immodestly dressed women.  The Times says: "A politically astute new generation of ultra-Orthodox leaders has become savvy at navigating the halls of government, while the grand rabbis of Hasidic sects wield electoral power like few religious leaders can, turning followers into cohesive voting blocs." [Thanks to Scott Mange for the lead.]

Statements To Pastor Not Covered By Religious Privilege

In State of New Hampshire v. Willis, (NH Sup. Ct., Aug. 21, 2013), the New Hampshire Supreme Court held that a trial court properly admitted statements a criminal defendant made to his church pastor. Defendant Ernest Willis, who was convicted on three counts of sexual assault involving a minor, argued that the religious privilege should have protected the statements. The court concluded however that one of the statements was admissible "because of the presence of [the pastor's] wife, whom the trial court found to be an ‘extraneous’ third party.” As to a second statement, made to the pastor alone, the Court concluded

whether a communication is a “confidence” within the meaning of the religious privilege depends upon the objectively reasonable expectations of the communicant, under the totality of the circumstances....  Because our law provides that any statement to a clergyperson that might be helpful in establishing child abuse is not protected by the privilege, a communicant cannot have an objectively reasonable expectation that such a statement will remain confidential.

 AP reports on the decision.

Suit Challenging IRS Non-Enforcement of Politicking Ban Against Churches Survives Dismissal Motion

In Freedom From Religion Foundation v. Shulman, (WD WI, Aug. 19, 2013), a Wisconsin federal district court refused to dismiss a lawsuit against the Internal Revenue Service alleging that IRS enforcement policies favors religious non-profits over other 501(c)(3) organizations. The suit alleges that the IRS does not enforce the ban on political campaign activity against churches and religious organizations, while it fully enforces it against others.  The court held that the Freedom From Religion Foundation, itself a 501(c)(3) organization, has standing to bring the action, and that the government has waived sovereign immunity through Section 702 of the Administrative Procedure Act.  As pointed out in the FFRF's press release on the decision, this means that the case will now proceed to discovery. Huffington Post reports on the decision. [Thanks to Michael Gompertz for the lead.]

USCIRF Warns About Religious Violence In Nigeria

The U.S. Commission on International Religious Freedom has recently issued a Fact Sheet on Boko Haram's religiously motivated violence in Nigeria. The Fact Sheet (full text) explains:

Boko Haram (a Hausa-language name northern Nigerians gave to the militants that means “western education is a sin”) originated in northern Nigeria’s Yobe and Borno states in 2002 and is now a dangerous threat to Nigeria’s stability. The group regards the federal and northern state governments, as well as the country’s political and religious elites, as morally corrupt. It further rejects the West and the secular state, seeking the universal implementation of “pure” Shari’ah law to resolve the ills northern Nigerian Muslims face. While the 12 northern Nigerian states already apply Shari’ah in their jurisdictions, Boko Haram believes that it has been corrupted by politicians for their own purposes....

Woman, Banned From Church, Charged With Trespassing

Yesterday's Greensboro (NC) News & Record reports on the criminal trespass charges that have been filed against 62-year old Marilyn Baird who insists on attending New Hope Missionary Baptist Church even though the pastor and church officers have banned her from the building for her criticism of church financial practices.  When Baird nevertheless attended on July 7, police were called to escort her out.  A week later, when she appeared again, she was arrested outside the sanctuary for second degree trespassing. Her case will be heard in court on Sept. 17.

Russian Police Stop Unsanctioned Procession By Church of Flying Spaghetti Monster

Some in Russia apparently fail to appreciate the humor of the "Pastafarian" movement.  Raw Story reports that on Saturday, Moscow police detained eight followers of the Church of the Flying Spaghetti Monster for attempting to hold an unsanctioned rally:

Followers of the Church of the Flying Spaghetti Monster planned to hold a “pasta procession” in Moscow and St. Petersburg to honor the birthday of Robert De Niro, who once played a character named Noodle in the movie Once Upon A Time in America.

The “pasta procession” in Moscow was disrupted by the Orthodox activist group Bozhaya Volya, or God’s Will, who sprayed ketchup on a march participants. The Orthodox group has held demonstrations against homosexuality, the punk rock group Pussy Riot, and the Darwin natural history museum.

Suit Challenges 10 Commandments On Oklahoma Capitol Grounds

The ACLU of Oklahoma yesterday filed a state court lawsuit on behalf of several plaintiffs challenging the constitutionality under the state constitution of a Ten Commandments monument that was erected on the State Capitol grounds in 2012. (See prior related posting.) The complaint (full text) in Prescott v. Oklahoma Capitol Preservation Commission, (OK Dist. Ct., filed 8/19/2013) contends that the monument, paid for personally by a member of the Oklahoma House of Representatives and his family, constitutes an illegal "appropriation of public property" in support of religion, in violation of Art. 2, Sec. 5 of the Oklahoma Constitution. The complaint contains an extensive analysis of the religious implications of the text and design of the monument-- which are similar to those of monuments placed around the country by the Fraternal Order of Eagles.  In its press release announcing the filing of the lawsuit, the ACLU said in part:

The lawsuit also seeks to remedy the state monument’s impact on Jewish and Christian believers. The government has taken a text that, in various forms, is deeply sacred in both of these faiths and have trivialized its religious meaning by placing it in a political and secular context, with its proponents arguing that the monument is a constitutionally permissible recitation of a purely non-religious history of our legal system and government.

No 1st Amendment Bar To Suit Against Diocese Over Priest Sex Abuse

In Givens v. St. Adalbert Church, 2013 Conn. Super. LEXIS 1704 (CT Super. Ct., July 25, 2013), a Connecticut trial court rejected the contention of a Catholic diocese that the 1st Amendment and the ministerial exception doctrine preclude civil courts from deciding claims against religious institutions growing out of sexual abuse by a member of the clergy. The court, however, did dismiss two paragraphs of the complaint which would have required it to decide disputed issues of religious doctrine and practice.