Description of Radical Islam In Indictment Does Not Violate Defendant's Religious Freedom

United States v. Bary, (SD NY, Oct. 23, 2013), is a criminal prosecution against Kahlid Al Fawwaz and Adel Abdel Bary for, among other things, conspiring with Osama Bin Laden to kill Americans abroad in embassy bombings in African countries.  Bary challenged language in his indictment that says al Qaeda regarded the United States as an infidel because the U.S. is "not governed in a manner consistent with the group's extremist interpretation of Islam." Defendant argued that this language in the indictment violates the Establishment Clause and Free Exercise Clause:

[u]nder the First Amendment of the Constitution, the Government does not have the right to decide what forms of religion are "normal" versus "extreme." . . . . The Government's labeling of the defendant's belief in Islam as "extremist" is disapproving of and infringes on Mr. Abdel Bary's religious freedoms.

The court rejected this argument as "unpersuasive."

Britain's Prince George Baptized

In London yesterday, Prince George, third in line to the British throne, was christened in a ceremony attended by 22 invited guests.  As reported by CNN and People, the baptism into the Church of England took place in Chapel Royal at St James Palace.  The 3-month old baby was baptized by Most Rev. Justin Welby, the Archbishop of Canterbury, with water from the Jordan River using a silver font that has been used for every royal christening since 1841. The prince has 7 godparents.

6th Circuit Denies Small Business Challenge To Contraceptive Mandate

In Eden Foods, Inc. v. Sebelius, (6th Cir., Oct. 24, 2013), the U.S. 6th Circuit Court of Appeals denied a preliminary injunction to a for-profit natural foods corporation and its Catholic owners who claim that the contraceptive coverage mandate under the Affordable Care Act violates their free exercise rights as protected by the Religious Freedom Restoration Act.  The court held that circuit's prior decision in Autocam Corp. v. Sebelius (see prior posting) creates binding precedent for the circuit. In that case the court held that the coverage mandate's burden falls on the corporation, and that the business' owners lack standing to assert free exercise claims on behalf of the corporation.  Insofar as a claim by the corporation itself, the court in Autocam concluded that a for-profit corporation is not a person capable of religious exercise under RFRA. MLive reports on the decision.

Convictions Reversed After Prosecutor's Comments on Shariah Law

In Sate of Oregon v. Farokhrany, (OR App., Oct. 23, 2013), the Oregon Court of Appeals held that the trial court should have given a curative instruction after comments by the prosecutor in the trial of an Iranian Muslim defendant charged with use of cocaine with two high schoolers and the sexual groping of one of them.  As described by the court:

During voir dire, the prosecutor engaged potential jurors in a discussion about their views regarding the prosecution calling only one witness to prove a fact. The prosecutor contrasted for the potential jurors a scenario that he asserted "was out of either Iran or Saudi Arabia" where an alleged rape victim was required to produce five male witnesses to prove the rape. One juror purported to correct the prosecutor, stating that the prosecutor was describing Sharia law, a religious law, not the legal system of a country.

Explaining its reversal of defendant's convictions, the appeals court said:

because one likely effect of the prosecutor's comments was to suggest to jurors that men from countries that follow Sharia law feel free to commit sexual offenses as long as the necessary number of male witnesses are not present, it was incumbent on the trial court to neutralize the likely effect of the prosecutor's comments and remind the jurors that appeals to social, ethnic, or religious bias could not substitute for reason and evidence.

Blogtown reports on the decision.

Devotionals For President Obama By the Former White House Faith Based Office Head Criticized

The publication this week of Joshua Dubois, The President's Devotional, has created something of a controversy.  Dubois is former head of the White House Office of Faith-Based and Neighborhood Partnerships, and the book is a compilation of 365 of the short Daily Devotionals (each including a Bible passage and prayer) that Dubois sent to President Obama each morning. Obama has said he found the devotional messages meaningful. Time Magazine this week says:

Sending the president a daily Christian reflection is not part of the White House Faith-Based director’s job description, and the devotional is already receiving pushback. “It seems quite inappropriate for the faith-based director to be composing prayers and Bible lessons on the government dime,” Maggie Garrett, legislative director for Americans United, says. “And it is especially true when there was really important work to be done, such as reforming the faith-based initiative rules.”

But spirituality is big business in America, and that type of criticism does not concern Dubois. He says he had the idea for the book about six months before he left the White House, but the actual compiling started after he left. He explains that while he did spend about an hour to an hour and a half every day writing the emails while he worked in the White House, he always did so on his own time. “I definitely did it before work or on the weekends and stuff like that,” he explains, clarifying that he usually sent them from his personal and not White House email address.

Reporting Not Required For Information On Abuse Learned By Priest During Confession

In Parents of Minor Child v. Charlet, (LA App., Oct. 21, 2013), a Louisiana appellate court held that a Catholic priest is not required to report information to authorities regarding the sexual abuse of a minor that the priest learned through confession in the Sacrament of Reconciliation. Nor is there a cause of action against a priest for negligent advice given during the Sacrament. The court held further that there is no private right of action against a mandatory reporter for failure to report child sexual abuse.  The reporting statute is enforceable only through criminal prosecution.  Justice Kuhn filed a separate concurring opinion.

Oklahoma Indian Tribe Issuing Marriage Licenses To Same-Sex Couples Where One Is Tribal Member

While Oklahoma's state constitution bars same-sex marriage, according to yesterday's Tulsa World the Cheyenne and Arapaho Tribes have issued marriage licenses to three same-sex couples in the last year.  Indian tribes are not subject to state law, and the Cheyenne and Arapaho Tribal Code does not mention gender in its provisions for issuing marriage licenses.  A license can be issued, however, only if at least one of the partners is a tribal member.

New Shariah Penal Code Coming Into Effect In Brunei

AFP reports that yesterday the Sultan of Brunei announced that a new Shariah Penal Code will come into force in stages beginning next April. Brunei already has a dual set of courts, with Shariah courts handling primarily marital and inheritance issues. The new Penal Code, which only applies to Muslims in the country (70% of the population),  will, according to one expert, likely be applied "very, very softly," even though it includes death by stoning as the punishment for adultery.

Washington High Court Hears Arguments On Whether State Law Requires Religious Accommodation

The Washington state Supreme Court yesterday heard oral arguments (summary and video of full arguments) in Kumar v. Gate Gourmet, Inc. At issue is whether the Washington Law Against Discrimination requires employers to accommodate employees' religious practices. The suit was brought by four employees of a company that prepares meals for airline passengers. Plaintiffs, including a Hindu, Muslim and Orthodox Christian, claim that the lunch options served to them violate their religious beliefs because the company sometimes puts meat products in the vegetarian dish or pork in the meat dish offered to workers.  Employees for security reasons cannot bring their own lunches or go off-site for food.

Southern Baptists Pull Back From Political Fray

Today's Wall Street Journal carries a front-page feature story on Russell Moore who earlier this year took over leadership and changed the emphasis of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. According to the Journal:

[A]fter more than three decades of activism, many in the religious right are stepping back from the front lines. Mr. Moore, a 42-year-old political independent and theologian ... says it is time to tone down the rhetoric and pull back from the political fray, given what he calls a "visceral recoil" among younger evangelicals to the culture wars.

 "We are involved in the political process, but we must always be wary of being co-opted by it," Mr. Moore said....

Church Seeks Supreme Court Review of Town's Sign Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Reed v. Town of Gilbert.  In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services.(See prior posting.)  An ADF press release announced the filing of the petition for review.

British Tribunal Requires Conscience Exemption From Online VAT Filing

In Blackburn v. Commissioners for Her Majesty's Revenue & Customs, (UKFTT, Oct. 2, 2013), Britain's first Tier Tribunal ruled that British tax authorities should have granted an exemption from the requirement to make VAT filings online to a Seventh Day Adventist Couple who operated a beekeeping business. They must be allowed to file a paper return instead. Graham and Abigail Blackburn do not use computers, the Internet, TV or mobile phones because of their personal religious beliefs that these devices seduce people away from righteousness, even though the Seventh Day Adventist Church does not ban their use.  The Tribunal judge concluded that the requirement in Sec. 3 of the Human Rights Act requiring legislation to be read in a way that is compatible with the European Convention on Human Rights requires the grant of an exemption.  Failure to do so would infringe the Blackburns' right under Sec. 9(1) of the ECHR to freely manifest their religion or beliefs. BBC News reported on the decision yesterday.

New Jersey Governor Drops Appeal of Same-Sex Marriage Decision

AP reports that yesterday New Jersey Governor Chris Christie announced that he is dropping the state's appeal in Garden State Equality v. Dow, a case in which a trial court extended the right to marry to same-sex couples in New Jersey. The governor's decision comes after Friday's decision by the New Jersey Supreme Court refusing to stay the trial court's opinion pending appeal. (See prior posting.) Christie said he was dropping the appeal because the Supreme Court's opinion denying a stay made it clear that the Court agreed with the trial court's decision.

Former Kansas AG Sanctioned By State Supreme Court Over Abortion Clinic Investigations

The Kansas Supreme Court last week imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. In In re Phillip Dean Kline, (KA Sup. Ct., Oct. 18, 2013), the Supreme Court, in a 154-page opinion, concluded:

The violations we have found are significant and numerous, and Kline's inability or refusal to acknowledge or address their significance is particularly troubling in light of his service as the chief prosecuting attorney for this State and its most populous county. 

 Ultimately, we unanimously conclude the weight of the aggravating factors—i.e., Kline's inability or refusal to acknowledge the line between overzealous advocacy and operating within the bounds of the law and his professional obligations; his selfish motives; and his lengthy and substantial pattern of misconduct—weigh more heavily than the mitigating factors and merit his indefinite suspension.

Five of the Supreme Court's seven justices disqualified themselves in the case and lower court judges were appointed to hear the case in their place. National Law Journal, reporting on the decision, says that Kline is currently on the faculty of Liberty University School of Law in Lynchburg, Virginia. He can petition for readmission in Kansas in three years.

New Zealand Rights Tribunal Upholds Church's Exclusion of Man From Clergy Because of Same-Sex Relationship

In Gay and Lesbian Clergy Anti-Discrimination Society, Inc. v. Bishop of Aukland, (NZ Human Rts. Rev. Trib., Oct, 17, 2013), the New Zealand Human Rights Review Tribunal rejected a claim by a man seeking to enter the ordained ministry of the Anglican Church that his rejection violated the New Zealand Human Rights Act 1993.  The Bishop of Auckland refused to allow Eugene Sisneros to enter the preliminary discernment process because Sisneros was in an unmarried same-sex relationship.  Sisneros claimed that this amounted to illegal discrimination on the basis of marital status and sexual orientation.  The Tribunal held, however, that the exception in Sec. 39(1) of the Act precluded the discrimination claim. Sec. 39(1) provides that:

Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

In concluding that the exemption applied, the Tribunal said:

it is clear that the purpose of s 39(1) was (in the present context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy and ministers. The plaintiff’s interpretation would entirely negate that purpose. The Anglican Church would be required to ordain priests who taught that the right ordering of sexual relationships can only occur within a Christian marriage (defined by the Formularies as a physical and spiritual union of a man and a woman) but who themselves did not “live” that doctrine.  Ministers would not be exemplars, nor would they be bound by submission to the Constitution of the Church or by their declaration of allegiance to its doctrine and Formularies. This would undermine in the most fundamental way the religious autonomy of the Church, its right to be selective about those who will serve as the very embodiment of its message and its voice to the faithful.

Last Friday's New Zealand Herald reported on the decision.  [Thanks to Eric Rassbach for the lead.]

Accommodating Muslim Workers' Prayer Times Created Undue Hardship In Beef Plant

In EEOC v. JBS USA, LLC, (D NE, Oct. 11, 2013), a Nebraska federal district court held that a beef processing plant need not accommodate the prayer practice of Somali Muslim employees because doing so would impose "undue hardship." Granting unscheduled prayer breaks would have impacted safety, efficiency and morale of other employees.  Rescheduling the meal break during Ramadan to coincide with sunset prayer time created problems with sanitizing the plant and impinged on other employees. Lexology reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Dutch Appeals Court Holds Church of Scientology Is Tax Exempt

In the Netherlands last week, the Amsterdam Court of Tax Appeals reversed a lower court decision and held that the Church of Scientology qualifies as a Public Benefit Organization (ANBI) which is generally tax exempt and can receive tax deductible gifts. As reported by Dutch News and a Scientology press release, the lower court had held that the organization did not qualify because it charges for its auditing and training programs. However the appeals court concluded that Scientology's activities are religious and ideological in nature, and other churches also charge for training. Unlike commercial establishments, Scientology gives the training at a reduced fee or free to those who cannot afford them otherwise.  The full text of the decision in Scientology Kerk Amsterdam v. de inspecteur van de Belastingdienst, (Amsterdam Ct., Oct. 17, 2013) is available online in Dutch. [Thanks to Tom Rutledge for the lead.]

Op-Ed Says Europe's Concern About Male Ritual Circumcision Is Not Anti-Semitic

Haaretz yesterday carried an interesting opinion piece by James McDonald titled Europe's Shudder at Circumcision. He argues that the recent resolution by the Council of Europe's Parliamentary Assembly questioning male circumcision performed for religious reasons (see prior posting) should not be seen as a reflection of anti-Semitism. Instead, he argues, it reflects Europe's "continued disposition towards cultural imperialism" in a society in which male circumcision is much more unusual than in the United States.

Recent Articles of Interest

From SSRN:

• Charles Becker, Windsor's Push Toward Universal Interstate Recognition of Same-Sex Marriages, (September 20, 2013).
• Hamid Harasani, Accommodating Two Worlds, (April 2013).
• Raini Hassan, Hanna Ambaras Khan, Imad Fakhri Al Shaikhli, & Nora Abdul Hak, Setting-Up a Sulh-Based, Community Mediation-Type of Online Dispute Resolution (ODR) in Malaysia, (May 27, 2013).
• Selim Serbes, Critiques and Suggestions as to Construction and Approach Regarding Islamic Law Clauses in the Contracts; Two Case Illustrations in Common Law, (May 15, 2013).
• Adis Duderija, Neo-Traditional Salafis in the West: Agents of (Self)-Exclusion, (in Samina Yasmeen, Muslims in the West and Social Exclusion, Ashgate, 2014, Forthcoming).

USCIRF Urges President To Raise Religious Freedom Issues With Pakistan Prime Minister

Pakistani Prime Minister Nawaz Sharif arrives in Washington today for a 4-day visit to the United States. Voice of America reports that he will meet with Secretary of State Kerry today and President Obama on Wednesday.  In a press release on Friday, the U.S. Commission on International Religious Freedom urged Obama "to raise concerns about the dire religious freedom situation in Pakistan, with both Muslims and religious minorities consistently confronting violence or jail."  In July, USCIRF issued a special report on targeted violence against minority religious communities in Pakistan, particularly against Shi'ite Muslims. (See prior posting.)