Christian Conservatives Opposing Feldblum's Nomination To EEOC

An article today by Bill Berkowitz at BuzzFlash says that Christian conservatives are mounting a campaign to oppose confirmation of Chai R. Feldblum who has been nominated to the EEOC by President Obama. (See prior posting.) Feldblum is the first openly gay or lesbian person to be nominated for the EEOC. An article on the Traditional Values Coalition website opposing Feldblum is titled: "If You Hate America You Have a Lawyer — Chai Feldblum." Feldblum, a professor at Georgetown Law School, founded the Moral Values Project, dedicated to making a moral case for sexual and gender equity.

Saudi Religious Police Will Add Human Rights Unit

ANI reports today that Saudi Arabia's religious police, the Commission for the Promotion of Virtue and the Prevention of Vice, is setting up a new human rights unit to deal with human rights "in accord with just Islamic principles and international rights treaties." This is part of a broader restructuring of the Commission. However human rights activists call the move a hypocritical attempt to deal with the Commission's tarnished image and increased scrutiny of it by human rights organizations.

Military Critic Sues Former Chaplain Alleging Threats

Today's Dallas Morning News reports on a lawsuit filed by Mikey Weinstein, founder of the Military Religious Freedom Foundation, against former Navy chaplain Gordon Klingenschmitt, Jim Ammerman and Ammerman's Chaplaincy of Full Gospel Churches. Weinstein says that they are conspiring to encourage violence against him. The complaint (full text) in Weinstein v. Ammerman, (Dallas Co. TX Dist. Ct., filed 9/23/2009), alleges that Klingenschmitt, on behalf of Ammerman and CFGC, is using "imprecatory prayers" -- Biblical code-- to urge his followers to commit acts of violence against Weinstein. It claims that CFGC "is a front for anti-government extremists" who fear the U.S. is planning to turn its sovereignty over to the United Nations. The lawsuit seeks damages and an injunction, alleging violation of Texas Penal Code Sec. 22.07 that bans terroristic threats, and also alleging intentional infliction of emotional distress.

American Evangelist Turned Away From Britain Over Visa Problem

Britain has changed its rules on the entry of religious workers into the country, and the change last week prevented American evangelist Benny Hinn from entering to conduct his annual three-day "Fire Conference and Miracle Service." Yesterday's Times Online reports that Border Agency officials turned Hinn's private jet away at two different airports because he did not have a "letter of sponsorship" from a church as required by the Tier 5- Temporary Workers- Religious Workers requirements that came into effect last November. Thousands had come to London for Hinn's mission at the ExCeL exhibition centre, and were surprised when he did not appear. According to a posting on the Benny Hinn Ministry website, Hinn did end up addressing the conference via satellite link. It blames the problem on British lawyers who did not properly interpret Britain's new visa requirements. Plans are under way for Hinn to obtain a visa and return to Britain. [Thanks to Scott Mange for the lead.]

Recent Articles, Book and Video of Interest

From SSRN:

• C. Scott Pryor, Principled Pluralism and Contract Remedies, (McGeorge Law Review, Vol. 40, No. 3, 2009).
• Lyman P. Q. Johnson, Counter-Narrative in Corporate Law: Saints and Sinners, Apostles and Epistles, (Michigan State Law Review, Forthcoming).
• Dana Brakman Reiser, Charity Law’s Essentials, (Brooklyn Law School, Legal Studies Paper No. 167, Sept. 28, 2009).

From SmartCILP and elsewhere:

• Nehaluddin Ahmad, The Modern Concept of Secularism and Islamic Jurisprudence: A Comparative Analysis, 15 Annual Survey Of International & Comparative Law 75-105 (2009).
• Paul Horwitz, Demographics and Distrust: the Eleventh Circuit on Graduation Prayer in Adler v. Duval County, 63 University of Miami Law Review 835-892 (2009).
• Symposium: Constitutionalism and Secularism in an Age of Religious Revival: The Challenge of Global and Local Fundamentalisms, 30 Cardozo Law Review 2331- 2896 (June 2009).
  

Recent Book:

• Steven H. Shiffrin, The Religious Left and Church-State Relations, (Princeton Univ. Press, 2009).

New Video:

• Citizens United Productions, Rediscovering God in America II: Our Heritage, (2009), reviewed in CNS News.

Native Hawaiian Cultural Practitioners Challenge Land Management Plan

In Hawaii, a group of Native Hawaiian cultural practitioners, conservationists and others have filed suit in state court seeking to force the state's Board of Land and Natural Resources to grant them a hearing to challenge the Mauna Kea Comprehensive Management Plan that was adopted in April. Big Island Video News reported Friday that the lawsuit claims Hawaiian law has recognized the role of Native Hawaiians in protecting natural and cultural resources. Plaintiffs argue that Mauna Kea, an inactive volcano, is a religious temple, human burial ground, and a site for the study of traditional Hawaiian techniques in navigation and astronomy.

Missouri Creates New Faith-Based Partnership For Disaster Relief

Missouri Governor Jay Nixon last month signed Executive Order 09-25 setting up the Governor’s Faith-Based and Community Service Partnership for Disaster Recovery. Today's St. Louis Post-Dispatch carries a long report on Missouri's efforts to create a model of cooperation between state agencies and religious organizations to create an effective disaster response and recovery system. The state's new Partnership is made up of 16 state agencies, two federal agencies and 16 religious and charitable organizations.

Bald Eagle Case Transferred To Tribal Court

There has been a new development in the long-running federal prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance. The case has already been up to the 10th Circuit once on an unsuccessful challenge to the Bald and Golden Eagle Protection Act. (See prior posting.) A Wyoming federal district court judge has now agreed to let the matter be handled by a tribal court. AP reports today that the Wyoming federal district court that had scheduled a trial to begin Monday in the case instead has issued an order vacating the trial and specifying that the matter will be transferred to a tribal court. The judge however left open the possibility that he could still order a trial next month if the tribal court does not act.

Brooklyn Judge Criticizes Orthodox Jewish Community's Views On Child Abusers

In Brooklyn, New York on Tuesday, state trial court judge Guston Reichbach delivered a harsh rebuke to the borough's Orthodox Jewish community while sentencing Yona Weinberg, a 31-year old social worker and bar mitzvah tutor, for sexually molesting two boys. According to today's New York Jewish Week, the judge was distressed that in the 90 letters in support of Weinberg received prior to sentencing, no one expressed concern or sympathy for the victims. Judge Reichbach complained about "a communal attitude that seems to impose greater opprobrium on the victims than the perpetrator," and said that Jewish religious courts are inappropriate and incapable of dealing with criminal matters. The comments come just as the Orthodox Jewish community is beginning to face the problem of child sexual abuse.

Recent Prisoner Free Exercise Cases

In Jova v. Smith, (2nd Cir., Sept. 28, 2009), the U.S. 2nd Circuit Court of Appeals held that, under RLUIPA, prison authorities had demonstrated a compelling interest in a policy that permits inmates who lack a prison-affiliated chaplain to seek an outside sponsor, but where one is not available to allow an inmate to serve as facilitator of congregational worship only if the religion is known outside the institution. One of the two plaintiffs was the founder of Tulukeesh. The court also upheld against a RLUIPA challenge refusals to allow plaintiff to spar and receive martial arts training. However the court remanded for further consideration whether there was a less restrictive way of accommodating plaintiff’s complex religious dietary needs, such an entirely vegetarian diet. New York Law Journal reported on the decision last week. [Thanks to Steven H. Sholk for this lead.] In a related summary order issued on the same day, the court rejected plaintiff’s free exercise challenge and various other related claims. (See prior related posting.)

In Watson v. Wakefield, 2009 U.S. Dist. LEXIS 88395 (SD TX, Sept. 25, 2009), a Texas federal district court allowed two Muslim inmates to move ahead with his claim under RLUIPA that his rights were violated when he was barred for six months from attending Muslim services because during a scheduled prayer service he called for the resignation of his unit’s inmate Islamic coordinator. The court concluded that defendants had not shown for purposes of summary judgment that exclusion was the least restrictive means of promoting prison safety and security after a single incident of disruption. The court did however dismiss plaintiff’s First Amendment free exercise claim.

Vega v. Lantz, 2009 U.S. Dist. LEXIS 88550 (D CT, Sept. 25, 2009), involved free exercise and equal protection complaints, as well as a claim under RLUIPA, alleging a lengthy series of restrictions on a Muslim inmate’s right to practice his religion. A Connecticut federal magistrate judge rejected plaintiff’s complaint that he was denied halal meat and 5-times per day congregate prayer, as well as complaints about several other alleged infringements. The court however permitted plaintiff to move ahead with claims that Friday Jumah services are frequently cancelled, that the Qu’ran was mishandled, that his request to be circumcised for religious reasons was refused, that he was not allowed to purchase a toothstick, and that prayer oils sold in the commissary did not comply with Islamic requirements. The court also held that damages are not available under RLUIPA in claims against officials in their individual capacities.

In Decker v. Hogan, 2009 U.S. Dist. LEXIS 89048 (ND NY, Sept. 28, 2009), a New York federal district court permitted an atheist civil detainee who was placed in a sexual offender treatment program to move ahead with his First Amendment claim that portions of the program are based on Zen Buddhism and Christianity. The court, however refused to issue a preliminary injunction because plaintiff had not shown a substantial likelihood of success on the merits.

In Lewis v. Foster, 2009 U.S. Dist. LEXIS 88652 (D DE, Sept. 25, 2009), a Delaware federal district court rejected a claim by a former inmate that while he was incarcerated he was denied access to a razor to shave his head. He claimed that his Hebrew Israelite religion required him to shave his head for an indeterminate time after he came in contact with a dead body, namely his stillborn child.

In Lee v. Gurney, 2009 U.S. Dist. LEXIS 88883 (ED VA, Sept. 25, 2009), a Virginia federal district court rejected a Sunni Muslim inmate’s First Amendment and Equal Protection contentions, but permitted him to move ahead with his claim under RLUIPA complaining about a ban on group prayer in the prison recreation yard. The court concluded that authorities had not shown for summary judgment purposes that they used the least restrictive means to further a compelling interest in imposing the ban.

In Ramsey v. Goord, 2009 U.S. Dist. LEXIS 88859 (WD NY, Aug. 19, 2009), a New York federal magistrate judge refused to grant defendants’ motion for summary judgment on a series of related claims by an inmate who declared himself to be Jewish who was temporarily removed from the prison’s kosher food program without any chance to challenge the claimed reasons for his removal. He was charged with giving some of his kosher food to another inmate when it appears that this was done by an inmate porter of the food trays rather than plaintiff. Plaintiff was also allowed to move ahead with his claim that his removal from the program was in retaliation for his providing a statement helping another Jewish inmate in his charges against a prison staff member.

In Ellis v. United States, 2009 U.S. Dist. LEXIS 89392 (WD PA, Sept. 28, 2009), a Pennsylvania federal district court dismissed a Muslim federal inmate’s negligence claim stemming from the omission of his name from the call-out sheet for the 2006 Eid celebration as well as his free exercise claim based on the denial of Halal meat for the 2006 Eid celebration. The court also adopted a number of recommendations made in the case by a federal magistrate judge (2009 U.S. Dist. LEXIS 90035 (June 2, 2009)) including permitting plaintiff to move ahead with a RFRA claim that his name was omitted for 3 months from the call-out list for Jumu’ah services, an equal protection claim regarding denial of Halal meat for the Eid service, and a retaliation claim. The court agreed to deny a RFRA claim relating to plaintiff’s ability to purchase prayer oil and omission of Halal meat from the Eid service.

In Katz v. McGrew, 2009 U.S. Dist. LEXIS 89599 (D HI, Sept. 23, 2009), a Hawaii federal district court dismissed without prejudice a claim by a Jewish prisoner seeking a transfer from Hawaii to a mainland federal prison where he could eat and pray in a Sukkah during the Jewish holiday of Sukkot. The court said that case should have been brought as a civil rights claim, and not as a habeas corpus claim.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 89831 (ED AK, Sept. 17, 2009), and Arkansas federal magistrate judge recommended dismissing as frivolous a claim by an inmate who said he is a Disciple of Christ that he requires a one-person cell so he can be separate from those who do not obey the doctrines of Jesus.

In Boles v. Neet, 2009 U.S. Dist. LEXIS 91474 (D CO, Sept. 29, 2009), a Colorado federal district court accepted a federal magistrate’s recommendations (2009 U.S. Dist. LEXIS 90019 (March 13, 2009) and dismissed a complaint by an Orthodox Jewish prisoner that he was not permitted to wear his yarmulke and talit katan while being transported off prison premises for cataract surgery. (The case was on remand from the 10th Circuit. See prior posting.)

Court Says "Ministeral Exception" Does Not Apply To Suits Under Trafficking Victims Protection Act

In an important decision of first impression, a New York federal magistrate judge has concluded that the "ministerial exception" does not apply to suits under the federal Trafficking Victims Protection Act of 2000. Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044 (ED NY, Aug. 21, 2009), involves a Hindu priest who came to the United States under a religious workers visa to work for the Vishva Seva Ashram of New York. Plaintiff claims that he was tricked into leaving India and once here was subjected him to exploitative work conditions through psychological and emotional abuse-- allegations denied by defendants. Concluding that the First Amendment constraints on civil court jurisdiction over religious disputes should not apply here, the court said:

the standards that govern what constitutes trafficking and forced labor do not depend on the interpretation of religious doctrine; rather they are secular standards that guarantee that employers cannot deprive employees of fundamental human rights. Thus, unlike analyzing suits brought under federal and state employment laws, exploring the ills that the TVPA is meant to combat -- namely, trafficking and forced labor -- does not require courts to unduly interfere with the internal affairs of religious organizations or get involved in the selection or retention of ministers. Furthermore, a suit under the TVPA is not analogous to a suit under federal and state employment laws, because it is not brought in response to an adverse employment action...

Alabama High Court Says Morality Can Still Justify Commercial Regulation

The New York Times this morning editorializes on a decision handed down three weeks ago by the Alabama Supreme Court, 1568 Montgomery Highway, Inc. v. City of Hoover, (AL Sup. Ct., Sept. 11, 2009). In a 7-2 decision, the court upheld against constitutional attack Alabama's ban on the commercial distribution of sex toys, defined as "any device designed or marketed as useful primarily for the stimulation of human genital organs." The court concluded that "public morality" can serve as a legitimate rational basis for regulating non-private commercial activity. Siding with a view taken by the 11th Circuit, the court concluded that the U.S. Supreme Court's decision in Lawrence v. Texas only precludes using public morality as a legitimate governmental interest when a law regulates conduct that is both private and non-commercial. Two dissenters sided with the 5th Circuit, arguing that the U.S. Supreme Court's decision in Lawrence precludes this ban because it prevents individuals from purchasing sex toys for private intimate use.

Court Rejects Protesters' Attempts To Use Chalk Art In Anti-Roe Demonstration

In Mahoney v.District of Columbia, (D DC, Sept. 30, 2009), the D.C. federal district court rejected claims by several Christian anti-abortion protesters that their rights were infringed when they were denied permission to use chalk art as part of an anti-Roe v. Wade demonstration on the pedestrian plaza in front of the White House. The court concluded that the D.C. Code provision prohibiting the defacement of public property is an appropriate content-neutral time, place and manner regulation of speech. As a neutral law of general applicability, it survives plaintiffs' free exercise challenge. It does not impose a substantial burden on their religious exercise under the Religious Freedom Restoration Act because, while plaintiffs have a religious belief that they need to challenge abortion, they "do not allege that it is their sincerely held religious belief that they should express those views to the president through the specific medium of chalk or in the specific location of the 1600 Block promenade." The court also rejected plaintiffs' equal protection claim and their claim that police violated D.C.'s First Amendment Rights and Police Standards Act. (See prior related posting.)

European Court Faults Russia For Refusing To Register 2 Scientolgy Churches

In Kimlya v. Russia, (ECHR, Oct. 1, 2009), the European Court of Human Rights held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it refused to register the Church of Scientology in two Russian cities as a religious organizations under the country's Religions Act. Without registration, churches are essentially unable to function. Authorities refused registration because the churches failed to meet the statutory requirement that either they have existed for at least 15 years in a given Russian territory or are affiliated with a centralized religious organization.

The court noted that member states differed as to whether Scientology should be categorized as a religion. Therefore the court said it would defer to authorities of the country in question as to that issue. Russian officials held that the two churches were religious organizations. It went on to conclude that Russia's "15-year rule" violated the ECHR because it impacts only newly-formed churches that are not part of a strictly hierarchical church structure, and there is no justification for this difference in treatment. A ECHR press release summarized the decision.

Israel Prison Authority Says Prisoners Can Sleep In Sukkah

The Jewish holiday of Sukkot begins tonight. One of its customs is the construction of a Sukkah, a small enclosed area, partially open to the sky, in which observant Jews during the holiday eat their meals and sometimes also sleep at night. Yesterday's Yeshiva World News reports that in Israel, the Israel Prison Authority has for the first time given permission for observant prisoners to sleep in a sukkah in prison. In previous years, they had only been allowed to eat their meals there. The ruling, handed down at the request of the human rights group B'tzedek, applies to the wing housing religiously observant prisoner at the Massiyahu Prison. Among the prisoners housed there is Shlomo Benizri, a former member of the Knesset from the religious Shas Party, who is serving a four year sentence for accepting bribes.

Washington's Red Mass Is Sunday As Supreme Court Opens Its Term

This Sunday, as the Supreme Court's term is about to open, Washington's 56th annual Red Mass will be held at the Cathedral of St. Matthew the Apostle. Several justices traditionally attend, along with congressional leaders, diplomats, cabinet secretaries, and sometimes the President. CNN reports that the Red Mass dates back centuries and brings together government leaders involved in the law. Critics, however, say this improperly gives the Catholic Church a special way to lecture the justices.

Barry Lynn, director of Americans United for Separation of Church and State, says that Washington's Red Mass was begun after several Supreme Court decisions were handed down that troubled the Church. The Mass is sponsored by the John Carroll Society, a lay Catholic group of legal professionals. Jane Roberts, wife of the chief justice, is an officer of the Society. Currently six of the Justices on the Court are Catholic. Justices of other faiths are invited to the Mass as well, and some, like Justice Breyer (who is Jewish), attend. However Justice Ginsburg, has stopped going because of the subject matter of the sermons. Church officials deny using the Mass to lobby the Court. Last year, 5 Justices attended. (See prior posting.)

New Hampshire Federal Court Rejects Challenge To Pledge of Allegiance

In Freedom from Religion Foundation v. Hanover School District, (D NH, Sept. 30, 2009), a New Hampshire federal district court dismissed a constitutional challenge to the recital of the Pledge of Allegiance in school classrooms. Atheist and agnostic parents and students raised Establishment Clause, free exercise, equal protection and due process claims. Perhaps the most interesting part of the court's opinion was its lengthy Establishment Clause analysis. In concluding that the New Hampshire statute mandating recitation of the pledge in classrooms, but making student participation voluntary, passed the Lemon test, the court said in part:

the Pledge of Allegiance is not a religious prayer, nor is it a "nonsectarian prayer" .... and its recitation in schools does not constitute a "religious exercise." The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way.... Rather, the Pledge, in content and function, is a civic patriotic statement.... Peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause, and as a civic or patriotic exercise, the statute is clear in making participation completely voluntary....

The words "under God" undeniably come from the vocabulary of religion, or, at the least, reflect a theistic orientation, but no more so than the benign deism reflected in the national trust in God declared on our currency, or in ceremonial intercessions to "save this Honorable Court" .... It may well be that some, perhaps many, people required to employ U.S. currency, or socially pressured to stand during civic ceremonies, feel offended by what seems to them an imposition of theistic doctrine. But the Constitution prohibits the government from establishing a religion, or coercing one to support or participate in religion, a religious exercise, or prayer. It does not mandate that government refrain from all civic, cultural, and historic references to a God.....

When Congress added the words "under God," to the Pledge in 1954, its actual intent probably had far more to do with politics than religion — more to do with currying favor with the electorate than with an Almighty. (God, if God exists, is probably not so easily fooled.) In the intervening half century since the words were added, rote repetition has, as Justice Brennan observed, removed any significant religious content embodied in the words, if there ever was significant religious (as opposed to political) content embodied in those words. Today, the words remain religious words, but plainly fall comfortably within the category of historic artifacts — reflecting a benign or ceremonial civic deism that presents no threat to the fundamental values protected by the Establishment Clause.

Lodi City Council Changes Policy, But Keeps Prayer

After months of contentious debate, late Wednesday night the Lodi, California City Council voted unanimously to change its policy on invocations, but not to do away with prayer. According to yesterday's Lodi News-Sentinel, under the new policy the invocation will be delivered before the Council meeting is formally called to order. Leaders of all faiths, including ones whose places of worship are outside of the city, will be invited to deliver an uncensored invocation. Persons who are not religious can give a "Call to Civic Responsibility" instead of a prayer. Some 500 people attended the special Council meeting on Wednesday and the mayor had received 1,451 e-mails on the topic. (See prior related posting.)

Parties Settle In Lesbian's Suit Against California Clinic

Last year in North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, (CA Sup. Ct., Aug. 18, 2008), the California Supreme Court held unanimously that a medical clinic's physicians are prohibited by the Unruh Civil Rights Act from discriminating against patients on the basis of sexual orientation. The holding came in a lawsuit by an unmarried lesbian patient. Two Christian doctors at the clinic refused on religious grounds to give her artificial insemination. As the case headed for trial on remand, North County (CA) Times yesterday reported that the parties have now settled the lawsuit for an undisclosed sum of money in a settlement described as mutually agreeable.

NY Jewish Schools Get No Child Left Behind Tutors For First Time

The Jewish Press reported yesterday that for the first time, some 14,000 young students from 50 yeshivas in New York City will be able to access tutoring services paid for by the No Child Left Behind Act's Title I program. The tutors offer students help with reading, writing and arithmetic. Eventually up to 50,000 yeshiva students could participate. Until two weeks ago, union contracts kept New York City teachers from accommodating the yeshivas' longer school day. However new arrangements will now permit yeshivas to use third party vendors for tutoring under the program. [Thanks to Vos Iz Neis for the lead.]

Many Pakistani Mosques and Madressahs Face Shut Off Of Electricity

In Pakistan, the Karachi Electric Supply Company (KESC) notified the Ministry of Religious Affairs earlier this month that over 1,600 mosques and madressahs have not paid their electric bills. They owe the equivalent of $1.49 million (US). According to Pakistan's The News today, KESC will be sending a final one-week notice to delinquent customers and then will be shutting off their power. Numerous notices have previously been sent out, but have been ignored. Most of the religious institutions have their own revenue generating sources, such as shops and markets, that should generate funds to cover the bills. The Ministry of Religious Affairs told KESC that the Ministry is not responsible for the religious institutions.

Texas State Fair Is Not State Actor In Barring Religious Literature Distribution

In Rundus v. City of Dallas, (ND TX, Sept. 16, 2009), a Texas federal district court rejected a claim brought by a Christian evangelist seeking damages for the refusal by the State Fair of Texas to allow him to pass out religious literature on sidewalks inside the fairgrounds. State Fair rules required plaintiff to pay a fee to rent a booth if he wished to hand out literature inside the fairgrounds. His lawsuit claimed the Fair's literature distribution policy violated his 1st Amendment right to express his religious beliefs. The State Fair of Texas is a private non-profit corporation that holds the fair each year at the city-owned Fairgrounds. The court held that the State Fair did not become a state actor by reason of its relationship with the city of Dallas. According to the court, there was "no evidence that the City was involved, much less 'pervasively entwined,' with any aspect of the Literature Distribution Restriction." Therefore plaintiff had failed to show the "state action" necessary for a recovery. And while the city was a state actor, its conduct did not give rise to any liability. (See prior related posting.) The Dallas Observer News Blog reported on the case yesterday.

Israeli Court Says Chinese Pressured University On Falun Gong Exhibit

In Israel, the Tel Aviv District Court ruled yesterday that Tel Aviv University improperly closed down an exhibit of artwork by Falun Gong members last year because of economic and political pressure from the Chinese Embassy. According to Haaretz, the court concluded that the Dean of Students gave into pressure in order to protect campus funding by the Chinese Embassy of scholarships for students who study in China, a campus Confucius Center where students can study Chinese, and conferences on Buddhism and Chinese philosophy. The two-week exhibit opened on March 3, 2008, but was shut down after only four days. The court ordered the university to host the exhibit for another full week during the upcoming semester, and to pay the two plaintiffs-- student organizers of the exhibit-- NIS 45,000 ($12,000 US) in litigation costs.

Court Rejects Tony Alamo's Free Exercise Defense In Suit By Former Followers

A federal district court yesterday rejected a free exercise defense raised by evangelist Tony Alamo in a lawsuit against him by two of his former followers who alleged Alamo withheld food from them for prolonged times, ordered their severe and sometimes public beatings, and verbally abused them during the beatings. In Ondrisek v. Hoffman, (WD AR, Sept. 30, 2009), the court said:

Alamo states that the beatings alleged in the Complaint were merely spankings, which are required by the Bible. Thus, he argues that his alleged conduct in ordering these beatings is protected by the First Amendment’s free exercise clause.... The principle of religious liberty does not give one the liberty to physically attack others.... While an individual’s beliefs that he can beat and falsely imprison Plaintiffs and intentionally inflict emotional distress upon them is protected by the First Amendment, acting on these beliefs is reasonably prohibited by Arkansas law.

The Pine Bluff (AR) Commercial reported on the decision yesterday.

Christian Group Sues Challenging Maine's Interpretation of Its Charitable Licensing Law

In June, the Charitable Solicitations section of Maine's Office of Licensing & Registration imposed a civil penalty of $3000 on the Christian Action Network, finding that it had violated 9 MRS Sec. 5013 by using Governor John Baldacci's name in a letter soliciting contributions without the Governor's consent. (CAN Release.) The solicitation letter complained that some of Maine's public schools were promoting Islam by providing instruction on the Five Pillars of Islam and the Koran and that some schools provide a prayer room for Muslims. It urged recipients of the letter to contact the Governor to complain.

10 MRS Sec. 8003(5) allows the agency to impose a civil penalty of up to $1500 for each violation of law. Apparently the state, as a condition to granting a renewal of CAN's license as a charitable organization, also required it to admit both that the Governor did not give his consent and that CAN's "correspondence contained an inflammatory anti-Muslim message." Yesterday, Liberty Counsel announced that CAN had filed a federal lawsuit against the state of Maine challenging an interpretation of the state statute that prohibits any mention of the Governor in a charitable solicitation without consent. The suit also claims that CAN's free speech was infringed by "censoring" of its anti-Muslim message.

UPDATE: Here is the full text of the complaint in Christian Action Network v. State of Maine, (D ME, filed 9/28/2009). The Bangor Daily News has more coverage and a link to the text of CAN's mailing.

2nd Circuit: Ministerial Exception Bars Rabbi's Suit Against Her Former Temple

In Friedlander v. Port Jewish Center, (2d Cir., Sept. 30, 2009), the 2nd Circuit agreed that a New York federal district court lacked jurisdiction over a breach of contract claim by a rabbi against her former congregation. (See prior posting.) The Court of Appeals found that the "ministerial exception" doctrine applies. That doctrine bars civil courts from interfering with the autonomy of religious institutions over ecclesiastical affairs. The Court said:

review of Freidlander’s claims ... would require scrutiny of whether she should have ... read more extensively from the Torah at certain services, prepared students for their Bar or Bat Mitzvah more adequately, performed certain pastoral services ... or followed the Temple’s funeral service policies. A reviewing court would also be required to assess whether any failures rose to the level of "gross misconduct or willful neglect of duty".... [S]uch review would involve impermissible judicial inquiry into religious matters.

[Thanks to Y.Y. Landa for the lead.]

Prosecutors Seek To Offer Unusual Religious Analysis In Competency Trial

A federal judge in Utah is being asked to permit rather unusual testimony about religious beliefs in the third competency hearing for Brian David Mitchell who has been charged with the 2002 kidnapping in Salt Lake City, Utah of then 14-year old Elizabeth Smart. (Background). According to KSL-TV yesterday, prosecutors want a professor who is an expert in the analysis of scripture, and an investigator of the Ervil LeBaron polygamy cult decades ago, to testify to show that Mitchell's religious writings do not show that he is delusional and mentally ill. Mitchell wrote a book of scripture, "The Book of Immanuel David Isaiah," in which he suggests he has powers greater than God's. Psychiatric experts used that to show he was incompetent to stand trial. Now the prosecution wants to call their witnesses to show that Mitchell's religious writings were coherent when viewed in the proper cultural context. They resemble views in Ervil LeBaron's "Book of the New Covenant" in which he justified over two dozen killings in biblical language.

Amicus Brief Raises Opposition To UN Convention

Two cases before the U.S. Supreme Court this term, Graham v. Florida and Sulivan v. Florida, appear to have become vehicles for those filing amicus briefs to duel over the U.N.'s Convention on the Rights of the Child which conservative Christian groups fear the U.S. Senate may ratify. They claim the Convention would infringe parental rights. (See prior posting.) An amicus brief filed by Amnesty International (joined by 14 other groups) in the two cases involving life sentences without parole imposed on juveniles urges the court to apply the prohibitions of the Convention as a matter of customary international law. Yesterday, according to a press release from Parentalrights.org, 16 members of the U.S. House filed an amicus brief arguing that the Convention is not binding on the United States. Previously some twenty religious groups representing various faith traditions filed an amicus brief arguing that imposing life imprisonment without parole on juvenile offenders contravenes fundamental religious values.

High School Cheerleaders Cannot Carry Religious Banners On Field

Yesterday's Chattanooga (TN) Times Free Press reports on a new variation of the dispute over mixing of religion and high school football. In Fort Oglethorpe, Georgia, since 2003 Fort Oglethorpe High School cheerleaders have displayed religious banners that the football players crash through at the beginning of games. The banners urge fans and players to "commit to the Lord" and "take courage and do it." After a complaint from a local resident, the superintendent [corrected] prohibited the banners, agreeing that the display of Biblical verses on the football field violates the 1st Amendment. This led to a community rally in support of the cheerleaders and strong statements supporting them from Fort Oglethorpe Mayor Ronnie Cobb who said: "If it's offensive to anyone, let them go watch another football game. Nobody's forced to come there and nobody’s forced to read the signs." Meanwhile, an area outside the stadium has been set aside so the signs can be displayed there. Several of the players, upset by the ruling, protested by holding a team prayer after they took the field last week.

An attorney for the Christian Law Association has been advising those upset with the school's ruling on at least two alternative routes, according to Chattanoogan.com. Barbara J. Weller says that while the students may not continue to put Bible verses on the banners they have been making officially for the games, they can make other banners with Bible verses on them, as long as they make the banners at home and bring them to the games on their own, without the school's approval, permission or participation. She also says that the school should not be able to prohibit banners that merely used the words, "Power, Love, Self Discipline" without reference to the Bible verse that includes them.

UPDATE: At an Oct. 13 meeting, the Catoosa County School Board upheld the superintendent's ruling. (ABP).

Supporters of Sectarian Prayer Threaten Billboards Exposing Council Votes

Around the country, the Freedom from Religion Foundation has been challenging city councils that open their meetings with sectarian prayers, and city councils have been forced to consider whether to change their policies. Few of the debates have been as contentious as that in Lodi, California (see prior posting) where a vote will be taken tonight. Yesterday's Lodi News-Sentinel reports that in advance of the vote, Council has received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based "Pray In Jesus Name Project," threatening that if council eliminates invocations or requires them to be non-sectarian, he will purchase billboards on Interstate 5 and Highway 99 for one year listing each council member as "Against Jesus" or "For Jesus." Councilman Bob Johnson described as Klingenschmitt's threat as "blackmail" and "petty thuggery."

Court Rejects Copyright Suit Claiming Infringement In Use of Judas Iscariot Trial

In Porto v. Guirgis, (SDNY, Sept. 28, 2009), a New York federal district court rejected a claim by author Michael Porto (also known as "Guy Michaels") that Guirgis' play "The Last Days of Judas Iscariot" violates the copyrights for Porto's novel "Judas on Appeal." Both works involved a fictional trial of Judas Iscariot in which the issue is whether Judas should be admitted to paradise. The novel has the trial before a fictional World Court of Religion held in the Federal Courthouse in New York's Foley Square, while the play has the trial before a fictional judge in Purgatory. The court said:

The trials depicted in the two works are dramatically different in substance, setting, plot, theme, language, and the overall thrust and feel of the works. Stripped of unprotectible elements—such as the biblical characters and biblical story—the works are not substantially similar.

Courthouse News Service reported on the decision yesterday.

German Court Says School Must Provide Prayer Space For Muslim Student

In the first ruling of its kind in Germany, the Berlin administrative court has ruled that Diesterweg High School in Berlin-Wedding must allow a Muslim student known in the litigation as Yunus M. to pray 10 minutes each day in a separate classroom. Deutsche Welle reported yesterday that freedom of religion guarantees required this accommodation which the court saw as not disturbing school operations. Berlin's Education Senate says it fears that the ruling will lead to the creation of "islands of belief" in the schools, and the chairman of Berlin-Wedding's parents' board said she fears that the ruling will further lessen Muslim students' willingness to integrate into the school.

New York Appellate Court Voids Church Election of New Pastor and Trustees

Trustees of Gallilee Pentecostal Church, Inc. v. Williams, (NY App. Div., Sept. 22, 2009), is a case in which plaintiffs sought a declaration as to who are the legal trustees and members of the Gallilee Pentecostal Church in Poughkeepsie, New York. In 1983 when the Church was formed, its articles named six trustees. Despite provisions in the articles and in the New York Religious Corporations Law calling for annual elections, no election of trustees was ever held. Now only two of the original six trustees are alive. In 2006, at the instigation of Frances J. Williams, some 30 people, allegedly members of the church, were notified of a meeting. 17 showed up and purported to elect Williams as pastor and as a trustee, and also purported to elect Barbara Williams-Mahmood as another trustee.

Plaintiffs, who objected to Williams as pastor, sued challenging the validity of the 2006 meeting. The appellate court agreed with their challenge, finding that defendants failed to prove who were church members entitled to vote at the meeting. The court declared that the two remaining original trustees were the only valid trustees. It went on to enjoin Williams and his supporters from exercising any authority or control over church property. [Thanks to Y.Y. Landa for the lead.]

Court Rejects Interlocutory Appeal In Minnesota Charter School Case

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 88425 (D MN. Sept. 24, 2009), a Minnesota federal district court denied a motion by the sponsor of a controversial charter school to certify an interlocutory appeal of a decision handed down by the court in July. In that decision (see prior posting) the court held that the ACLU had taxpayer standing to bring an Establishment Clause challenge to funding of the school by the state and that plaintiff had sufficiently pleaded the elements of a "state action" by the sponsor, Islamic Relief. The ACLU charges that the charter school promotes Islam. In denying the motion, the court concluded that there is no substantial ground for difference of opinion on the issue of taxpayer standing and that questions as to state action are primarily factual ones that do raise appropriate issues for appeal.

British Jewish Schools Implement New Admissions Criteria Ordered By Court

Today's London Guardian reports on changes in admission policy made by Britain's publicly-funded Jewish schools after a Court of Appeal decision in June held that using the traditional Orthodox Jewish definition of who is Jewish amounts to impermissible racial discrimination instead of a permissible religious criterion. (See prior posting.) The article focuses particularly on the Jewish Free School, which it describes as "vast, in size and in reputation", and which was the school involved in the lawsuit. Now Jewish schools have introduced a "point system" to measure religious practice. Attending synagogue twice a month in addition to festivals earns a child three points. Formal Jewish education is worth one point. Voluntary work in a charity is worth one point. JFS requires three points to be considered a priority applicant. Meanwhile synagogues have seen a spike in attendance as families rush to earn points before the admissions deadline passes. The shift to assessing religious practice is consistent with criteria used by publicly-funded Christian and Muslim schools in Britain. The case is on appeal to Britain's new Supreme Court. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Christian Group Creates "Adopt a Liberal" Initiative

Liberty Counsel (a Christian advocacy group) has begun a "prayer in action" initiative it calls "Adopt a Liberal." It is hoping to change the minds of political leaders it sees as "misguided". The initiative calls on participants to pick one of the eleven liberals on Liberty Counsel's list, or to choose some other liberal leader, and then:

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy....

Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Woman's Caning Sentence Upheld On Appeal In Malaysia

In Malaysia, apparently a controversial sentence of a Muslim woman for drinking alcohol is back on track. Last month Kartika Sari Dewi Shukarno became the first woman to be sentenced under the country's Islamic law to caning for drinking alcohol. When she defiantly asked that her punishment be carried out in public, the sentence was delayed because of Ramadan and to allow for a government appeal after objections from activists. (See prior posting.) Now, according to AP, the chief Shariah judge of Pahang state has ruled that the lower court acted in accordance with law. It is now up to the Pahang Islamic Religious Department to carry out the largely symbolic caning.

Victoria Government Agrees To Broad Religious Exemptions In Discrimination Law

In the Australian state of Victoria, the attorney general has pre-empted a parliamentary committee and has announced an agreement with religious groups (including churches, schools, hospitals and welfare services) that will modify current law but still grant them broad exemptions from anti-discrimination prohibitions. According to The Age yesterday, the compromise permits religious groups to discriminate in employment and the furnishing of services on the basis of sex, sexuality, marital and parental status and gender identity, so long as they demonstrate how the discrimination relates to their religious doctrines. Thus conservative religious schools can refuse to hire single mothers or gays even for non-teaching positions, and Islamic groups can refuse to employ Christians. However religious groups will be barred from discriminating on the basis of race, disability, age, physical features, political beliefs or activity, or breastfeeding.

2010 National Religious Moot Court Announced

George Washington University Law School has announced the 2010 National Religious Freedom Moot Court to be held February 5-6, 2010 in Washington, DC. This year's problem involves free exercise issues in decisions of a local police department to regulate the activities and the dress of a police officer. The competition is open to students from ABA-accredited law schools. Registration extends until November 6, 2009.

Recent Articles and Books of Interest

From SSRN:

• Jeffrey M. Lipshaw, Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief, (Suffolk University Law School Research Paper Series, Sept. 27, 2009).
• Mostapha Benhenda, Liberal Democracy and Political Islam: The Search for Common Ground, Politics, Philosophy & Economics, Forthcoming).
• Umar Aimhanosi Oseni, Towards the Effective Legal Regulation of Waqf in Nigeria: Problems and Prospects, (September 25, 2009).

From SmartCILP:

• Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law & Litigation 119-164 (2009).
• Chad G. Marzen, The Role of Custom in Canon, Jewish, and Islamic Law: Supplemented, Superseded, or Supplanted by Written Law?, 35 Ohio Northern University Law Review 813-827 (2009).
• Anne Orford, Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect, 30 Michigan Journal of International Law 981-1015 (2009).
• Nicholas C. Rigano, Fraudulent Conveyance Law: Destroying Free Exercise Rights at a Church Near You, 17 American Bankruptcy Institute Law Review 165-187 (2009).

Recent Books:

• Anne Marie Lofaso, Religion in the Public Schools: A Road Map for Avoiding Lawsuits and Respecting Parents' Legal Rights (Americans United for Separation of Church & State, 2009), reviewed on AU's website. [Link is to full text of book.]
• David Nash (ed.), Blasphemy in Britain and America 1800-1930, (4 vols.) (Pickering & Chatto Publishers, forthcoming April 2010).

China Issues New Report on Its Ethnic Policy-- Claims Religious Freedom

The Chinese government today issued a White Paper titled China's Ethnic Policy and Common Prosperity and Development of All Ethnic Groups. The Xinhua news agency carries a series of reports on the White Paper. Summarizing the report's findings on religious freedom, Xinhua says:

Freedom of religious belief in China means that every citizen has the freedom to believe or not to believe in any religion," said the white paper issued by the Information office of the State Council.... [A]ll normal religious activities, including those of ethnic minorities, are protected by law.... Venues for religious activities are found all over China, basically satisfying the needs of religious believers.... [T]he Chinese government also helps religious groups build seminaries to train clergymen of ethnic minorities, subsidizes the repairs of some religious venues in minority areas, and gives allowances to poor religious believers of ethnic minorities, according to the white paper.

The White Paper comes in the wake of a letter earlier this month (full text) from two members of the U.S. House of Representatives to Jon Huntsman, the new U.S. ambassador to China, raising concerns about reported plans by China to take new steps against "house churches" leading up to the Oct. 1 marking of the 60th anniversary of Communist Party rule in China. (Christian Post, Sept. 10.)

Illinois Supreme Court Says Limitiations Extension Cannot Be Applied Retroactively

In Doe v. Diocese of Dallas, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court refused to apply retroactively a 2003 amendment to Illinois law extending the statute of limitations in civil actions alleging child sexual abuse. The suit was filed by plaintiff who had been abused by a Catholic priest when he was 14 years old. However under prior law, the statute of limitations had run on his claim before the 2003 amendments took effect. The court concluded that even though the legislature had intended for the amended statute of limitations to apply retroactively: "once a claim is time barred, it cannot be revived through subsequent legislative action without offending the due process protections of our state's constitution." Friday's Belleville (IL) News-Democrat reported on the decision.

Recent Prisoner Free Exercise Cases

In May v. Donneli, 2009 U.S. Dist. LEXIS 85495 (ND NY, Aug. 25, 2009), a New York federal magistrate judge held that merely a loss of a few pounds was insufficient physical injury to justify a claim for compensatory damages under the Prison Litigation Reform Act that precludes compensatory damages for emotional injury unaccompanied by physical injury. In the case, a prisoner asserted that for seven days of Ramadan he was precluded from breaking the fast with blessed food. The court also held that a damage claim under the NY Corrections Law had to be brought in the state court of claims.

In Davis v. Hightower, 2009 U.S. Dist. LEXIS 85505 (ND FL, July 13, 2009), a federal magistrate judge recommended rejection of a Wiccan inmate's claim that his free exercise rights were infringed when authorities confiscated 9 "religious healing stones" from his property which he used to help heal his peptic ulcer.

Mauwee v. Donat, 2009 U.S. Dist. LEXIS 86148 (D NV, Sept. 18, 2009), involved claims that prison officials desecrated the prison's sweat lodge area by allowing non-Indians to use it. A Nevada federal district court concluded that damage claims are not permitted under RLUIPA and that plaintiffs' claim for equitable relief was precluded by qualified immunity. It also concluded that objections to changes in sweat lodge procedures were now moot since those changes had been rescinded. The magistrate's recommended findings in the case are at 2009 U.S. Dist. LEXIS 86141 (May 28, 2009).

In Kinney v. Curtin, 2009 U.S. Dist. LEXIS 86225 (WD MI, July 29, 2009), and in Thomas v. Bergh, 2009 U.S. Dist. LEXIS 86893 (WD MI, Aug. 21, 2009), a Michigan federal magistrate judge recommended that the court uphold decisions to deny plaintiffs participation in their prison's kosher food program because plaintiff had not shown that his beliefs were sincerely held.

In Parks v. Smith, 2009 U.S. Dist. LEXIS 87147 (ND NY, Sept. 23, 2009), a New York federal district court accepted most of the magistrate's recommendations (2009 U.S. Dist. LEXIS 87210, Aug. 17, 2009) allowing a Jehovah's Witness inmate to move ahead with his claim that authorities violated his free exercise rights and his rights under RLUIPA when they disciplined him for attempting to mail a photograph of himself in a meditation pose to a company for use in a personal ad. Prison authorities claim that the pose is in fact a gang signal. The court rejected the magistrate's holding that plaintiff's free exercise and retaliation claims were duplicative. He might be able to show retaliation based on religion even if he did not succeed in his claim that his rights were infringed when authorities classified his meditation pose as a gang signal.

In Strope v. McKune, 2009 U.S. Dist. LEXIS 86886 (D KS, Sept. 22, 2009) and Strope v. Cummings, 2009 U.S. Dist. LEXIS 86885 (D KS, Sept. 22, 2009), a Kansas federal district court rejected claims that Assembly of Yahweh inmates were not given adequate time for worship. It also rejected claims that certain foods served to those on the kosher diet were routinely spoiled, and that other foods were not included. UPDATE: The 10th Circuit affirmed (June 11, 2010).

In Shepard v. Peryam, 2009 U.S. Dist. LEXIS 87189 (SD FL, Aug. 20, 2009), a Florida federal magistrate judge recommended that the court reject claims by a Muslim pre-trial detainee that he was denied religious services, prayer beads, a prayer rug, a Kufi (prayer cap), and a Kosher diet.

In Floyd v. Leslie, 2009 U.S. Dist. LEXIS 87758 (ND IN, Sept. 23, 2009), and Indiana federal district court allowed an inmate to move ahead with his complaint that a prison officer denied him access to Satanist religious material that belonged to him, but the court dismissed plaintiff's claim against the prison's chaplain.

In Jenkins v. Vail, 2009 U.S. Dist. LEXIS 87730 (ED WA, Aug. 31, 2009), a federal district court (rejecting a magistrate's recommendations, 2009 U.S. Dist. LEXIS 87769, July 22, 2009) refused to grant a preliminary injunction to a Muslim inmate who would not participate in work or educational programming on the ground that his sincerely held religious beliefs prevent him from supporting a non-Islamic government.

Moorish American Corrections Officers Can Move Ahead With Discrimination Allegations

Bey v. City of New York, 2009 U.S. Dist. LEXIS 87793 (SDNY, Sept. 9, 2009), is a lawsuit brought by a group of former New York City correction officers who were members of the Moorish American faith which teaches that Moors are exempt from taxation. They were terminated from their positions after hearings at which it was found that they had submitted false documents claiming to be tax exempt. They then sued, arguing that others of different faiths who had submitted false tax forms received less severe discipline. The court allowed certain of the plaintiffs to move ahead with equal protection and Establishment Clause claims, finding that "there remains a triable issue of fact as to whether Defendants' explanation for Plaintiffs' harsher treatment - that they persisted in their assertion of tax exempt status and failed to take affirmative steps to repay their taxes - is pretextual and whether, in fact, the Moors were singled out for harsher treatment based on their religion."

Guardian Ad Litem Has Immunity As To Comments On Mother's Religious Views

In Wood v. Epley, 2009 U.S. Dist. LEXIS 87490 (SD OH, Sept. 9, 2009), an Ohio federal magistrate judge recommended dismissing as frivolous a lawsuit brought by Kyra Wood seeking $40 million in damages from an attorney who was appointed guardian ad litem by a state juvenile court to represent the interests of her daughter. Wood alleged that she was deprived of her free exercise rights because of unflattering comments the guardian ad litem made to the court about her religious expression. The court said that the guardian ad litem has absolute immunity from liability growing out of his testimony as to what he believes are in the best interest of the Wood's daughter.

Christian Group Complains About Ganesh Statue At Calgary Zoo

In Canada, the publicly funded Calgary Zoo some two years ago put up a statue of the Hindu deity Ganesh-- a figure with an elephant head-- near the zoo's elephant display. An anonymous donor supplied funds for the statue in memory of her late father who worked and travelled extensively in Asia. According to yesterday's Calgary Herald, Concerned Christians Canada wrote the zoo this week complaining about the statue. The letter (full text) said: "The zoo is not a place of religious indoctrination, it is supposed to be a safe family environment free of religious icons and selective religious partiality." A zoo spokesman, however, says that the statue is a cultural symbol that shows the tie between the elephants and Asian culture. [Thanks to Scott Mange for the lead.]

Christian Reformed Church Gets Title To Property Over Breakaway Congregation

In Lamont Community Church v. Lamont Christian Reformed Church, (MI Ct. App., Sept. 22, 2009), a Michigan appellate court held that the Christian Reformed Church in North America is a hierarchical denomination, and therefore that civil courts are required to honor the determinations made by the denomination's parent body in resolving a property dispute between it and a break away congregation. Here the denomination, through its Zeeland Classis, determined that the congregation had no authority to transfer congregational property to a new entity without the consent of its regional Classis. The congregation argued that the denomination's rule governing the procedure to be used to determine ownership of property when a congregation disaffiliates did not take effect until after it had transferred its property. The court, however, said it was bound by the denomination’s determination that the rule took effect before the transfer at issue. [Thanks to Brian D. Wassom for the lead.]

Hasidic Congregation Gets Reversal of Damage Award, But Loses On Other Issues

This week, a New York appellate court handed down a decision in a dispute between two neighboring Orthodox Jewish congregations in Kiryas Joel (NY), a town populated primarily by members of the Satmar Hasidic community. A bit or reading between the lines is necessary to understand the disputes that were ruled on by the court in Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, (NY App. Div., Sept. 22, 2009). (It is not clear whether this case is part of a larger leadership battle within the Satmar movement.)

It appears that originally the 3,000-member Congregation Yetev Lev ("CYL") owned a synagogue building, surrounding parking lots and a nearby residence that was used as living quarters by its rabbi. In some fashion, Bais Yoel Ohel Feige ("BYOF") took ownership of the residence and began to use it as a synagogue. It also filed a suit under Art. 15 of New York's Real Property Actions & Proceedings Law to confirm its ownership of the premises. CYL brought several counterclaims. One asserted that BYOF's use of the property violated the town's zoning code. The appellate court agreed and upheld a trial court's injunction because the zoning code, as amended in 2007, requires a site plan review by the Village Zoning Board for operating a place of worship in a residence.

The appellate court however reversed the trial court's award of nearly $745,000 in damages on another counterclaim by CYL which complained that individuals attending services at BYOF had continuously used CYL's parking area. The appellate court concluded that there was no evidence that BYOF had instructed its members where to park and that, in any event, CYL had not put up signs attempting to restrict who could use its lots. Also testimony as to how many BYOF members parked there was speculative. Finally the appellate court held that CYL retained an implied easement to access the basement and roof of the residence area to install and repair water, sewer and utility lines and HVAC equipment that apparently served CYL's building. [Thanks to Y.Y. Landa for the lead.]

Religious Groups Active On Several Issues At G-20

Religious groups have been active at the G-20 Summit in Pittsburgh. Yesterday 30 religious leaders from numerous faiths met with U.S. deputy national security adviser Michael Froman urging action on problems faced by the world's poorest people. (Pittsburgh Post-Gazette.) Also yesterday morning more than 100 people gathered in one area of Pittsburgh to call for China to allow freedom to practice Falun Gong, while in another area of the city 15 Burmese monks and about 40 supporters protested human rights conditions in Myanmar. (Beliefnet News.) [Thanks to Insitute on Religion & Public Policy for the leads.]

4th Circuit Says Westboro's "Utterly Distasteful" Picketing Is Protected By 1st Amendment

In Snyder v. Phelps, (4th Cir., Sept. 24, 2009), the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder violated their free speech rights. Westboro Baptist Church members have gained notoriety for their picketing of veterans' funerals carrying signs attacking America's acceptance of gays. Here Snyder's father claimed that the picketing and a related Internet posting amounted to an invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. The majority held that defendants' picket signs, while "utterly distasteful" nevertheless involve matters of public concern including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.

The court held that additionally no reasonable reader could interpret any of the signs, or the Internet posting, as asserting actual and objectively verifiable facts about Snyder or his son. They are merely "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants are concerned." Judge Shedd, concurring in the judgment, would have avoided the constitutional issue by holding that Snyder failed to introduce sufficient evidence at trial to support the jury verdict in his favor.

Today's Baltimore Sun reports on the decision and reactions to it. Meanwhile this week Westboro members began a campaign to picket synagogues in Brooklyn, New York just before Yom Kippur. Westboro spokesperson Shirley Phelps-Roper told the The Brooklyn Paper that their efforts could be seen as an "obey your God rally." Also, last week, just before Rosh Hashanah, Westboro picketers turned up outside the University of Oklahoma's Hillel Foundation. According to the AP, Phelps-Roper said the church stopped there as part of a "love campaign" to critize Jews for "killing Christ."

Capitol Visitor Center Hosts Premiere of Film On Religion In America

Last December the U.S. Capitol Visitor Center opened amidst protests from conservatives (including former House Speaker Newt Gingrich) that it failed to appropriately honor America's religious heritage. (See prior posting.) This led to Congressional resolutions directing the Architect of the Capitol to engrave the motto "In God We Trust" on a large pillar in the Visitor Center, and a lawsuit being filed challenging that directive. (See prior posting.) According to Politcio, despite the lawsuit, work on the engraving began this week and tonight at the Visitor Center former Speaker Gingrich hosts the premiere of his documentary — Rediscovering God in America II: Our Heritage. The film explores the role of religion in early American history.

This Sunday Is Second "Pulpit Freedom Sunday"

Alliance Defense Fund announced yesterday that its second annual Pulpit Freedom Sunday will be held on September 27. The event is part of ADF's Pulpit Initiative which is designed to challenge the constitutionality of Internal Revenue Code provisions barring partisan electoral activity by Section 501(c)(3) non-profits, including churches. This year more than 80 pastors will preach sermons related to biblical perspectives on the positions of electoral candidates or current government officials who are not involved in election contests. ADF has posted legal resources for participating churches. Last year some critics charged that ADF was in violation of ethical rules binding on lawyers who practice before the IRS by encouraging churches to violate the tax code. (See prior posting.) ADF this year makes clear that there is no legal problem with pastors speaking from the pulpit about current government officials who are not presently candidates for elective office. ADF complains that "the IRS has issued increasingly vague guidance on the law, which limits the First Amendment rights of pastors speaking from the pulpit, but has continued to launch investigations while avoiding court review of the constitutionality of its actions."

UPDATE: ADF reports that 83 churches from 30 states and D.C. participated in the 2009 Pulpit Sunday.

Court Dismisses Prof's Dismissal Complaint Under Ecclesiastical Abstention Doctrine

Earlier this week, an Ohio trial court held that under the ecclesiastical abstention doctrine it could not decide a breach of contract claim (full text of complaint) brought by David Hoffeditz, a Professor of Bible and Greek, against Cedarville University, a Baptist college. Yesterday's Chronicle of Higher Education reports that Greene County Common Pleas judge J. Timothy Campbell concluded that he could not decide whether the tenured associate professor's dismissal was for just cause without examining matters of religious doctrine. The First Amendment precludes such an inquiry. The court however refused to dismiss Hoffeditz's claim that the University committed fraud by extending his contract into the 2007-8 academic year without telling him it had already decided to dismiss him once its academic accreditation process was completed. Extensive documents related to the case are posted on a website title The Cedarville Situation.

Illinois High Court Upholds Bequest To Grandson Who Married Within the Faith

In In re Estate of Max Feinberg, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court, by narrowly defining the issue before it, upheld the result desired by Max Feinberg who wanted to leave his estate only to those of his grandchildren who married within the Jewish faith. Four of his five grandchildren married non-Jews, and one of them contested the testamentary provisions that disinherited her. The state Court of Appeals upheld her challenge on public policy grounds. (See prior posting.)

The Supreme Court, however, focused on the fact that Feinberg's wife exercised a power of appointment she had been given under the terms of her husband's testamentary trust. She had directed that upon her death her two children and the grandson who had then married within the faith receive the assets that were currently in trusts. This eliminated many of the hypothetical concerns that had influenced the Court of Appeals' decision and eliminated any influence on future marital decisions of potential beneficiaries. No "dead hand" controlled the future conduct of beneficiaries because the wife locked in the identity of the beneficiaries by making a bequest "to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished."

The Supreme Court also rejected constitutional claims, saying:

Because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.

AP reports on the decision and gives additional background.

Funeral Director Loses On Most of Her Religious Discrimination Claims

In Prise v. Alderwoods Group, Inc., 2009 U.S. Dist. LEXIS 86445 (WD PA, Spet. 21, 2009), a Pennsylvania federal district court dismissed religious discrimination claims under Title VII of the 1964 Civil Rights Act and the Pennsylvania Human Relations Act. Funeral director Deborah Prise was placed on paid leave and then fired as manager of the Hirsch Funeral Home . She claimed the actions against her involved employment discrimination on the basis of religion. The court, however, concluded that the actions stemmed from the fact that Prise was attempting to run Hirsch Funeral Home in strict accordance with Jewish law, and that her superiors wanted to accommodate the needs of non-Jewish customers even when doing so would contravene Jewish law. The court also rejected Prise's failure to accommodate claim, finding that at most the funeral home merely refused to give her an absolute guarantee that she would never be required to work on the Jewish Sabbath or Jewish holidays. The court, however, permitted Prise to move ahead with her claims of retaliation for filing her discrimination complaints with the EEOC and the Pennsylvania Human Relations Commission, finding that factual questions remained as to those charges.

House Committee Holds Hearings On Employment Non-Discrimination Act

Yesterday, the House Committee on Education and Labor held its first hearing on H.R. 3017, the Employment Non-Discrimination Act of 2009. The bill would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. The bill includes an exemption for any "corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act." A webcast of the hearing and transcripts of witnesses' statements are available on the Committee's website.

The testimony by Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, endorsed the the bill's anti-discrimination provisions as stemming "from a core teaching shared by an array of faith traditions." he said that the religious institutions exemption has broad based support. However Craig L. Parshall, Senior Vice-President of the National Religious Broadcasters, criticized the religious institutions exemption as inadequate. More broadly, he argued:

Neither the Congress nor the courts have jurisdiction over the religious beliefs of people of faith. Holding the faithful in contempt because they advance unpopular religious doctrines itself evidences a form of cultural discrimination. Christian ministries that object to those sexual preferences which are in clear violation of the standards of the Bible are standing on a long and well-worn road.... The rights to preach and practice those beliefs spring from a Bill of Rights that is two hundred and twenty years old....

Polish Court Fines Catholic Magazine For Its Attack On Woman Seeking An Abortion

In Poland, a court has ordered the magazine Gosc Niedzielny, which is published by the Catholic Archdiocese of Katowice, to apologize and pay damages of nearly $11,000 (US) to Alicja Tysiac who attempted unsuccessfully to obtain an abortion when her pregnancy threatened her eyesight. The Catholic publication vilified Tysiac for "wanting to kill her child," and equated abortion with Nazi medical experiments. AP reported yesterday that Judge Ewa Solecka held that Catholics are free to express their moral disapproval of abortion in a general way, but must stop short of vilifying an individual. The offending article in Gosc Niedzielny was in response to an award of damages to Tysiac who had sued Poland in the European Court of Human Rights. The magazine says yesterday's decision infringes its freedom of speech, and it plans an appeal.

Polygamy Charges Dismissed By British Columbia Supreme Court

An expected constitutional challenge to polygamy laws in the Canadian province of British Columbia (see prior posting) has been short circuited as province's Supreme Court quashed the indictments against two FLDS leaders on other grounds. In Blackmore v. British Columbia (Attorney General), (BC Sup. Ct., Sept. 23, 2009), the Court held that British Columbia's attorney general lacked authority to order appointment of a second special prosecutor to bring polygamy charges against leaders of two separate factions of the FLDS Church after a first special prosecutor recommended against bringing charges. Section 7.5 of the Crown Counsel Act provides that "the decision of a special prosecutor with respect to any matter within his or her mandate is final." The Court held that the appointment here of successive prosecutors is exactly the kind of political interference with the charging process that the Crown Counsel Act is meant to prohibit. Canadian Press yesterday reported on the decision.

Spanish Judge Works Out Compromise With Witness Wearing Burka

A Spanish judge yesterday worked out a compromise with a witness in a criminal trial who insisted on wearing her burqa when she testified. Think Spain reports that the woman had been called to testify for the prosecution in the trial of nine Islamists charged with recruiting suicide bombers in order to send them to Iraq. After a conference in chambers with the woman and the prosecutor, the parties agreed that the witness would appear Monday wearing her burqa above her eyebrows and below her chin so the judge can see her face. She will testify with her back to the public gallery in the court room, and no cameras will be allowed.

Here Are Religious Liberty and Church-State Issues From Senate's Health Care Reform Bill

Last week, the Chairman of the Senate Finance Committee, Sen. Max Baucus, introduced his detailed proposal for comprehensive health care reform, the America's Healthy Future Act of 2009. (Press release.) The committee has posted a 223 page document (the Chairman's Mark) describing the bill and a 348-page document summarizing a large number of proposed amendments from other Finance Committee members. Several items covered in the bill and proposed amendments are of particular interest to those following religious liberty and church-state matters-- abortion, conscience provisions, spiritual health care, faith-based grants and abstinence education.

Extensive attention has been given to issues relating to abortion services. A lengthy summary of the abortion provisions in the bill are in the Chairman's Mark at pp. 28-30 of that document. The provisions would:

• ensure that state laws prohibiting or requiring coverage or funding for abortions, and state laws involving abortion-related procedural requirements, are not preempted. The provision similarly provides that Federal conscience protections and abortion-related antidiscrimination laws would not be affected by the bill.
  
• abortions (beyond those for which federal funds can already be used) cannot be a mandated benefit as part of a minimum benefits package but a qualified health plan would not be prohibited from providing additional coverage. Federal funds continue to be prohibited from being used to pay for abortions unless the pregnancy is due to rape, incest, or if the life of the mother is in danger.


• no tax credit or cost-sharing credits may be used to pay for abortions beyond those for which federal funds may already be used. Insurers participating in any state-based exchange that offer additional abortion coverage must segregate from any premium and cost-sharing credits an amount of each enrollee's private premium dollars that is determined to be sufficient to cover the provision of those services.


• in each state exchange, at least one plan must provide additional abortion coverage and at least one plan must not provide such coverage.


• health benefits plans participating in state exchanges would be prohibited from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Other provisions of interest in the Chairman's Mark are:

• Pg. 31: Exemptions from the requirement to have health coverage would be allowed for religious objections that are consistent with those allowed under Medicare.
  
• Pg. 32: Exemptions from the excise tax on those who do not purchase health insurance policies will be made for any health arrangement provided by established religious organizations comprised of individuals with sincerely held beliefs (such as those participating in Health Sharing Ministries),.
  
• Pg. 76: states can apply for funds to provide incentives to Medicaid enrollees who successfully complete healthy lifestyle programs. In designing plans, States may collaborate with community-based programs, non-profit organizations, providers, and faith-based groups, among others.

Many of the proposed amendments are also of interest to those concerned with religious liberty and church-state issues. Here is a summary with an indication of the pages at which they appear:

• Pg. 36: Rockefeller Amendment #C22: $80 million annually would go to non-profit, community-based, and faith-based organizations as well as to states to cover the administrative costs of system and policy improvements that expedite enrollment and retention in the Children's Health Insurance Program.
  
• Pg. 79: Kerry-Hatch Amendment #C-14 (pg. 79): No qualified health plan offered through a State Exchange may deny benefits for religious or spiritual health care.
  
• Pg. 201: Hatch Amendment #C-10: Restores funding for abstinence education.
  
• Pg. 203: Hatch Amendment #C-12: Prohibits federal funds from being used to pay for assisted suicide and offers conscience protections to providers or plans refusing to offer assisted suicide services.
  
• Pg. 204: Hatch Amendment #C13: Non-discrimination on abortion and respect for right of conscience.
  
• Pg. 205: Hatch Amendment #C14: Prohibits federal funds under the Act from being used for elective abortions and plans that cover such abortions.
  
• Pg. 310: Enzi Amendment #C12: Prohibits requirement that a health plan cover abortions except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest.
  
• Pg. 311: Enzi Amendment #C13: Prohibits federal funds to be used to pay for any abortion or cover any part of the cost of any health plan that includes coverage of abortion, except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest. But individuals may purchase supplemental abortion coverage with non-federal funds.
  
• Pg. 312: Enzi Amendment #C14: Prohibits any provision in the bill from overturning or preempting constitutionally permissible laws or regulations of a State, that place limitations or procedural requirements on abortions, including any state law requiring parental notification or consent for the performance of an abortion on a minor.
  
• Pg. 313: Enzi Amendment #C15: Prohibits the federal, state or local governments, health care providers or plans that receives federal funds from discriminating against an individual or institution on the basis that they do not perform or participate in specific surgical or medical procedures or prescribe certain pharmaceuticals in violation of the moral, ethical, or religious beliefs of the individual or entity.

Yesterday the Interfaith Alliance released letters it sent to Sen. Orrin Hatch objecting to his Amendment #C-10 and to Sen. Michael Enzi objecting to his Amendment #C-15.