Southern Baptists Adopt Resolution On Boy Scouts; Public Policy Spokesman Talks With Reporters

During its annual meeting yesterday, the Southern Baptist Convention adopted a lengthy resolution expressing the denomination's "continued opposition to and disappointment in the decision of the Boy Scouts of America to change its membership policy" to allow gays to become members of the Scouts.  (See prior posting.)  The resolution expressed concern that this may be the first step toward approving homosexual scout leaders. The resolution went on to:

affirm the right of all families and churches prayerfully to assess their continued relationship with the BSA, expressing our support for those churches and families that as a matter of conscience can no longer be part of the Scouting family....

we encourage churches and families that remain in the Boy Scouts to seek to impact as many boys as possible with the life-changing Gospel of Jesus Christ, to work toward the reversal of this new membership policy.... 

we declare our love in Christ for all young people regardless of their perceived sexual orientation, praying that God will bring all youth into a saving knowledge of our Lord Jesus Christ.

The resolution encourages churches that sever ties with the Scouts to expand their Royal Ambassador ministry program for boys. Baptist Press has a report along with the full text of the resolution.

At the meeting, Russell Moore, newly elected president of the Convention's Ethics & Religious Liberty Commission held his first press conference. (BP report.) He told reporters that religious liberty has become the most significant issue in American culture. Focusing on engagement with the broader society, he said that "expressions of outrage, boycotts consistently against everyone who doesn't conform to our sense of values [are] not an effective way to engage culture." On politics, he said: "[T]he church of Jesus Christ is not owned by any political party and shouldn't be co-opted by any political party."

Judge Refuses To Dismiss Faith Healing Parents Murder Case

According to Reuters, a Philadelphia Municipal Court judge yesterday ruled that the murder and involuntary manslaughter case against Herbert and Catherine Schaible should proceed to trial.  The couple, charged in the faith-healing death of their 7-month old child, had sought to have the charges dismissed on the ground that they did not know their child was sick enough to die, and thus there was no gross negligence or malice. The couple had previously been convicted of involuntary manslaughter in the faith healing death of another of their children. (See prior related posting.)

Plaintiffs Lack Standing To Challenge Arizona Day of Prayer Proclamations

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ App., June 11, 2013), an Arizona state Court of Appeals held that a group of Maricopa County residents and a organization promoting church-state separation lack standing to to challenge Governor Janice Brewer's Day of Prayer proclamations. Plaintiffs alleged that the proclamations violated Article 2, Section 12  (Religion Clause) and Article 20, Par. 1 (perfect toleration of religion clause) of the Arizona Constitution.  The court, finding no distinct harm to plaintiffs, said:

Appellants have offered no explanation why their feeling of offense is any greater than that of a large segment of the general public nor how such purported psychological harm amounted to a discrete and palpable injury. Accordingly, we conclude they lack standing to bring their complaint. 

The court also found that plaintiffs had not alleged taxpayer standing, and that the standing requirements should not be waived. AP reports on the decision. (See prior related posting.)

10th Circuit: Native American Legend On License Plate Supports Pastor's Compelled Speech Claim

In Cressman v. Thompson, (10th Cir., June 11, 2013), the U.S. 10th Circuit Court of Appeals held that plaintiff states a plausible First Amendment "compelled speech" claim in objecting to what he views as a religious depiction on Oklahoma's 2009 license plates. The plates include a depiction of a sculpture titled "Sacred Rain Arrow" showing a Native American shooting an arrow toward the sky. The sculpture is based on a Native American legend in which a medicine man blesses a warrior's bow and arrows during a time of drought. Plaintiff Kieth Cressman, a United Methodist pastor, says that the belief in sacred objects, multiple gods and the ability of humans to use sacred objects to convince gods to alter nature represented by the legend all contradict his Christian religious beliefs. He does not want to display those beliefs on his automobile.  The court refused to dismiss the claim, saying that further factual development is necessary to determine whether others would perceive the license plate as conveying the message that Cressman alleges it does. The Oklahoman reports on the decision.

UPDATE: On June 12, the 10th Circuit announced that a clerical error had led to the June 11 decision failing to include a dissent by Judge Kelly.  The court reissued the decision, including the dissent.

Israeli Knesset Passes Law Requiring 4 Women On Rabbinical Judges Selection Committee

In Israel, government-appointed judges of rabbinical courts have jurisdiction over issues of Jewish marriage and divorce in the country.  The rabbinical court judges are chosen by the Selection Committee for Rabbinical Judges.  The Jerusalem Post and New York Jewish Week report that Israel's Knesset yesterday, over strong objections by haredi (ultra-Orthodox) parties, passed a law increasing the size of the selection committee from 10 to 11, and requiring that 4 of 11 places on the committee be reserved for women.  Women's advocacy groups hope this will lead to the appointment of judges who are more attuned to women's concerns, particularly in divorce cases. Under past law, the selection committee was made up of Israel's two chief rabbis, two judges from the Rabbinic Court of Appeals, two government ministers, and two lawyers representing the Israel Bar Association. Under the new law, which will take effect only after the next Knesset elections, one of the representatives from the government, one from the Knesset and one from the bar association will be women. Also the Minister of Justice will appoint a fourth woman who must be a rabbinical courts advocate.

South Carolina Episcopal Diocese Property Dispute Sent Back To State Court

In Protestant Episcopal Church In The Diocese Of South Carolina v. The Episcopal Church, (D SC, June 10, 2013), a South Carolina federal district court remanded to the state court a lawsuit over church property that had been removed to federal court.  In the case, the break-away Episcopal Diocese of South Carolina originally filed suit in state court against The Episcopal Church to establish the break-away Diocese's right to the real and personal property of the Diocese and its parishes. (See prior posting.) The Episcopal Church through its state affiliate, removed the case to federal court claiming that the case raises federal questions under the 1st Amendment and the Lanham Act. The court, however, emphasized that plaintiffs' complaint raised only claims based on South Carolina statutes. For removal, a federal issue must be an essential element in plaintiff's case, raised on the face of its complaint. Any 1st Amendment issue in this case is essentially a defense. Anglican Curmudgeon and Episcopal Church in South Carolina discuss the decision from opposite perspectives.

Muslims May Proceed With Equal Protection Challenge To Discriminatory Religious Interrogation At US-Canadian Border

In Cherri v. Mueller, (ED MI, June 11, 2013), a Michigan federal district court permitted four Muslim-Americans to proceed with their suit against federal officials. The suit charges that when Muslims re-enter the United States from Canada, they are extensively questioned about Islamic religious philosophy and views, practices, and locations where they worship. According to the court:

This case presents an issue of first impression.... In short, the question before the Court is whether the Government has unfettered discretion to question at the border a specific class of individuals about their religious practices and beliefs after being profiled and detained solely because of those religious practices and beliefs.

After finding that plaintiffs have standing to challenge the government practice, federal district judge Avern Cohn dismissed their free exercise, RFRA, Establishment Clause and retaliation claims.  However he found that plaintiffs had adequately stated a claim under the equal protection component of the 5th Amendment:

Plaintiffs have adequately pled that Defendants have a policy, custom and practice of questioning only Muslim American’s at the border about their religious practices and beliefs. Moreover, Plaintiffs have sufficiently alleged that such policy, practice and custom targets a suspect class and has no rational basis. At this stage in the case, Plaintiffs’allegations are sufficient. The Fifth Amendment claim, therefore, will not be dismissed.

The Detroit Free Press reports on the decision. (See prior related posting.)

Russian Duma Passes Laws Banning Insulting of Religious Feelings and Disseminating Homosexual Propaganda To Minors

Yesterday in Russia, the Duma-- the lower house of Russia's Parliament-- passed two bill of interest. The first is a ban on publicly insulting religious feelings. As reported by RT, the Duma passed amendments to Article 148 of the Criminal Code (full text of bill in Russian) that would punish offenses by up to three years in prison and a fine of 500,000 rubles ($15,600 US).  The bill also imposes up to one year in prison and disqualification for certain public offices for two years for anyone convicted of obstructing the activities of religious organizations. Premeditated and public desecration of religious objects or books will be punishable by fines of up to 200,000 rubles ($6,200 US). The bill is strongly backed by the Russian Orthodox Church, particularly after the widely publicized punk-band Pussy Riot demonstration in Moscow's main cathedral last February. (See prior posting.)  Here is the legislative history page from the Duma (in Russian). To become law, the bill must still be approved by the Federation Council, the Upper House of the Russian parliament, and signed by President Putin.

The Duma yesterday also passed by an overwhelming vote a bill that would outlaw homosexual propaganda aimed at individuals under 18 years of age. (Legislative history page in Russian.) The bill primarily embodies amendments to the Law On Protection of Children From Information Harmful To Their Health and Development (full text of bill in Russian).  According tp Russia Beyond the Headlines the bill describes its purpose as combating "the dissemination of information that aims to induce minors to develop non-traditional sexual attitudes, to see non-traditional sexual relationships as attractive, to develop the distorted notion that traditional and non-traditional sexual relationships possess the same value, or the dissemination of information on non-traditional sexual relationships that arouses interest in such relationships."

Fines for violations of the bill's prohibitions vary depending on whether the violator is a private individual, an official, or an entity. Fines are higher if the prohibited information is disseminated through the media or on the Internet. Foreign nationals who violate the law also face arrest of up to 15 days and expulsion from the country. This bill must also still be approved by the Federation Council and signed by President Putin before it finally becomes law.

No Religious Discrimination In Disciplining Employee For Preaching At Lesbian Co-Worker

In Hall v. Tift County Hospital Authority, 2013 U.S. Dist. LEXIS 80913 (MD GA, June 10, 2013), a Georgia federal district court dismissed religious discrimination claims brought by a Baptist nursing supervisor against a hospital that disciplined her for giving a lesbian nurse she sometimes supervised a pamphlet and sending her an e-mail emphasizing the sinfulness of homosexuality.  The court rejected plaintiff's claim that the disciplinary action against her violated Title VII, the equal protection clause, and her 1st Amendment free speech and free exercise rights.

Pennsylvania House Honors Landmark SCOTUS Decision By Declaring Public School Religious Freedom Month

According to AP, the Pennsylvania state House of Representatives yesterday unanimously passed House Resolution 351 declaring June 2013 as "Public School Religious Freedom Month."  June 17 is the 50th anniversary of the U.S. Supreme Court's landmark decision in School District of Abington Township, Pennsylvania v. Schempp, striking down Pennsylvania's opening of the public school day with Bible reading and recitation of the Lord's Prayer. The House Resolution praises the Supreme Court's vindication of the rights of conscience.

Misconduct Charges Against 5th Circuit Judge Include Her Religious Justifications For Capital Punishment

As reported by the Austin Chronicle and Courthouse News Service, six civil rights groups and seven individuals, most with special expertise in legal ethics, last week filed judicial misconduct charges against U.S. 5th Circuit Judge Edith Jones primarily over comments she made in a lecture titled "Federal Death Penalty Review."  The talk was given at the University of Pennsylvania Law School on February 20.  The Complaint (full text) alleges that Judge Jones' conduct was "prejudicial to the effective and expeditious administration of the business of the courts, undermines public confidence in the integrity and impartiality of the judiciary, and creates a strong appearance of impropriety."

The Complaint filed with the 5th Circuit pursuant to 28 U.S.C. § 351(a) focuses on a variety of Jones' remarks-- many uncomplimentary to racial and ethnic minorities and dismissive of defenses raised in capital cases.  In addition, the Complaint alleges that Judge Jones, focusing on the Biblical origins of the death penalty, argued that:

The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution.

Supreme Court Denies Review In Challenge To Ban On Pro-Life Picketers' "Gruesome Images"

The U.S. Supreme Court today denied certiorari in Scott v. Saint John’s Church in the Wilderness, (Docket No. 12-1077, cert. denied 6/10/2013). (Order List.) In the case, a Colorado appeals court enjoined anti-abortion protesters who were picketing a church they believed had gone astray from displaying gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children. (See prior posting.) The case has received a good deal of attention in the blogosphere, particularly through postings by Eugene Volokh who represented petitioners.

Organization of American States Adopts Two Human Rights Conventions; U.S. Has Objections

Merco Press reports that the General Assembly of the Organization of American States meeting last week in Guatemala adopted two human rights conventions-- the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance and the Inter-American Convention against All Forms of Discrimination and Intolerance. According to JTA, at a ceremony on Saturday, six countries signed the new conventions-- Argentina, Antigua and Barbuda, Brazil, Costa Rica, Ecuador and Uruguay.

The new Convention Against All Forms of Discrimination and Intolerance contains a broad definition of prohibited discrimination (Art. 1):

Discrimination may be based on nationality; age; sex; sexual orientation; gender identity and expression; language; religion; cultural identity; political opinions or opinions of any kind; social origin; socioeconomic status; educational level; migrant, refugee, repatriate, stateless or internally displaced status; disability; genetic trait; mental or physical health condition, including infectious-contagious condition and debilitating psychological condition; or any other condition.

The introductory language of the Convention proclaims that parties to it are "disturbed by ... a general increase in cases of intolerance and violence motivated by anti-Semitism, Christianophobia, or Islamophobia, and that directed against members of other religious communities, including those with African roots."  It goes on to recognize "that peaceful coexistence among religions in pluralistic societies and democratic states is based on respect for equality and nondiscrimination among religions and on a clear separation between the laws of the state and religious tenets."

Under Art. 4, states agree to  prevent and prohibit "publication, circulation or dissemination, by any form and/or means of communication, including the Internet, of any materials that advocate, promote, or incite hatred, discrimination, and intolerance."

Footnotes to both Conventions (which continue at the end of the respective documents) indicate that the United States has reservations. The U.S.states in part:

The United States believes that what is needed in this area are enhanced measures and efforts to implement existing human rights instruments, not the adoption of new instruments.  Additionally, we are concerned that some provisions of the draft conventions could undermine or are incompatible with international human rights law protections including those related to freedoms of expression and association.

At the Guatemala meetings, officers of the Inter-American Commission on Human Rights were also elected. (OAS press release). Winning candidates were Jose de Jesús Orozco (Mexico) who was reelected, Stanford Law Professor James L. Cavallaro (United States) and Paulo De Tarso Vannuchi (Brazil). Here is the U.S. State Department's press release on the OAS meetings.

Recent Articles of Interest

From SSRN:

• Daniel Golebiewski, Because the Bible Says So: The Impact of Roman Catholic Doctrines on LGBT Rights, (May 1, 2013).
• Pasquale Annicchino, The Conflict between the Autonomy of Religious Groups and Other Fundamental Rights: Recent Decisions of the U.S. Supreme Court and of the European Court of Human Rights, (Quaderni di Diritto e Politica Ecclesiastica 1, 2013).
• Peter G. Danchin, The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa, (in "Varieties of Religious Establishment" ed. Winnifred Fallers Sullivan and Lori G. Beaman (Farnham, Ashgate, 2013)).
• Alina Ng, Finding Copyright's Core Content, (University of St. Thomas Law Journal, Forthcoming).
• Michael J. Perry, The Morality of Human Rights, (June 4, 2013).
• Hdeel Abdelhady, Islamic Finance as a Mechanism for Bolstering Food Security in the Middle East: Food Security WAQF, (Sustainable Development Law & Policy 13, no. 1 (2012): 29-35, 63-65).
• Roger Colinvaux, Charitable Contributions of Property: A Broken System Reimagined, (Harvard Journal on Legislation, Vol. 50, No. 263, 2013).

From SmartCILP:

• Maarsha B. Freeman, What's Religion Got To Do With It? Virtually Nothing: Hosanna-Tabor and the Unbridled Power of the Ministerial Exemption, [Abstract], 16 University of Pennsylvania Journal of Law & Social Change 133-149 (2013).
• Richard W. Garnett, The Story of Kedroff v. St. Nicholas Cathedral [Includes photographs], [Abstract], 38 Journal of Supreme Court History 80-93 (2013). 
• Douglas Laycock, Edward Schempp and His Family [Includes photographs], [Abstract], 38 Journal of Supreme Court History 63-79 (2013).
• Raymond C. O'Brien, Family Law's Challenge to Religious Liberty, 35 University of Arkansas Little Rock Law Review 3-88 (2012).
• Fatahillah Abdul Syukur & Dale Margaret Bagshaw. When Home Is No Longer "Sweet": Family Violence and Sharia Court-Annexed Mediation in Indonesia, 30 Conflict Resolution Quarterly 271-294 (2013).

In Israel, Women of the Wall Pray Without Interference Under Police Protection

Haaretz reports that this morning in Israel police enforced a Jerusalem district court order allowing "Women of the Wall" to pray in the main section of the Western Wall wearing prayer shawls and tefillin (phylacteries).  In the past, police enforced rules created by Orthodox Rabbi Shmuel Rabinowitz, the rabbi of the Western Wall, which barred women from wearing religious garb that in more traditional circles is worn only by men. (See prior posting.) But today the women prayed without interference.  The tens of thousands of Haredi (ultra-Orthodox) demonstrators who were supposed to show up to protest never materialized.  Only 200 unorganized demonstrators were present. Today's events lessen the pressure to implement a compromise plan developed by Jewish Agency Chairman Natan Sharansky to build a new third area at the Wall for egalitarian prayer.

British Soccer Team Faces Opposition From Player Over Wearing Shirt Advertising Payday Loan Sponsor

According to yesterday's Daily Mail, in Britain the Newcastle United soccer club is facing opposition from one of its star players over wearing a shirt displaying the name of the club's new sponsor, Wonga.com.  Senegalese football striker Papiss Cissé, who signed with the Newcastle Club for some £8 million, says it offends his Muslim beliefs to wear shirts advertising the payday loan company that entered a lucrative 4-year deal with Newcastle.  Sharia law prohibits Muslims from benefiting through lending money to others.  Wonga charges over 4000% interest on its short-term loans. Newcastle's options are allowing Cisse to wear an unbranded shirt during games, or selling Cisse to another team.

No Free Exercise Problem With Evidence of Defendant's Santa Muerte Necklace

In Batiste v. State of Texas, (TX Ct. Crim App., June 5, 2013), defendant who was convicted of capital murder and sentenced to death objected, among other things, to the introduction at the penalty phase of his trial of a Santa Muerte necklace he was wearing when arrested. Apparently drug traffickers pray to Santa Muerte to ward off the police when making a drug run. The court held that appellant had failed to object on any 1st Amendment religious ground to introduction of the evidence. It added in a lengthy footnote, however:

Even if appellant had objected on a First Amendment basis, claiming that the admission of the necklace infringed upon his right to his free exercise of religion, the trial judge would not have abused his discretion in overruling that objection. At no time did the prosecutor or the gang expert suggest that appellant's necklace had any significance to the exercise of a bona fide religion. Its established relevance in criminal trials is to criminal street gangs and their "worship" of "Santa Muerte" or "Saint Death" who has been described as "the drug trafficker's god" and is "used as a protector of drug traffickers.... "

Recent Prisoner Free Exercise Cases

In Ali v. Reilly, 2013 U.S. Dist. LEXIS 77549 (D NH, June 3, 2013), a New Hampshire federal magistrate judge recommended allowing a Muslim inmate to move ahead with a number of his claims alleging denial of access to Jum'ah services, denial of nutritious food during Ramadan and removal from the Ramadan list.

In Wood v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 79310  (WD MI, June 6, 2013), a Michigan federal district court, while dismissing a number of plaintiff's claims, permitted a Muslim inmate to proceed on other of his claims against the Department of Corrections and the special activities coordinator seeking a halal diet, bagged meals during Muslim fast days, and the ability to possess religious property.

In Rodriguez v. Mims, 2013 U.S. Dist. LEXIS 79980 (ED CA, June 6, 2013), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed on his complaint against one defendant alleging that the jail in which he was previously held refused to provide him with a kosher diet.

In King v. Bosenko, 2013 U.S. Dist. LEXIS 80075 (ED CA, June 6, 2013), a California federal magistrate judge denied an inmate summary judgement, holding that his mere assertion that as a Buddhist he requires a vegetarian diet is not enough to establish as a matter of law that his beliefs are sincere and that vegetarianism is a tenet of his religion.

In Maloney v. Ryan, 2013 U.S. Dist. LEXIS 80410 (D AZ, June 6, 2013), an Arizona federal district court permitted a Muslim inmate to proceed on several related complaints about the prison's breakfast policy during Ramadan.

Canadian Terrorist Defendant Insists On Lawyer That Will Help Him Be Judged By the Qur'an

Today's Toronto Star reports on the difficulties faced by a Canadian justice of the peace in attempting to find a lawyer to defend accused terrorist Chiheb Esseghaier.  The defendant, a Tunisian national, is accused of taking part in a plot to derail a Toronto-bound passenger train.  Esseghaier insists that he will only accept a lawyer who will help him be judged by the Qur'an, rather than by the Canadian Criminal Code which he considers "a book written by humans." Recently a legal aid lawyer refused to take the case because of this demand.

County Commission Prayer Challenge Survives Legislative Immunity Defense

In Doe v. Franklin County, Missouri, (ED MO, June 7, 2013), plaintiff, who attended County Commission meetings, sued the county and Presiding Commissioner John Griesheimer who often opened Commission meetings with a Christian prayer, instead of with the scheduled moment of silence. The court fund that plaintiff has standing.  It then refused to dismiss the suit against Griesheimer on the basis of legislative immunity, finding that the content of the prayers involved did not relate to deliberating or passing any law-- a prerequisite for legislative immunity. The court held in abeyance defendants' motion to dismiss the suit as a political question until the U.S. Supreme Court decides a legislative prayer case on its docket for next term. (See prior posting.)