4 Bloggers Indicted In Bangladesh For Postings That Hurt Religious Sentiments

In Bangladesh on Sunday, four bloggers who had been arrested in April and subsequently released on bail were indicted under Sec. 57 of the Information and Communications Technology Act for inflammatory postings on sensitive religious issues hurting religious sentiments. These are the first defendants to be indicted under the Act since it was amended earlier this year to increase penalties to imprisonment for 7 to 14 years. BDNews 24 and Pakistan's Daily Times report on developments. The Times explains the background:

There has been vociferous debate between staunch atheists and fundamentalists in Bangladesh’s social media for years, but it took a deadly turn in February when an anti-Islam blogger was murdered.

That came amid massive rallies in the capital in which secular groups demanded the hanging of leading Islamists accused of war crimes during the 1971 war.

Religious groups have since staged nationwide demonstrations, with their demands including the prosecution – and execution – of atheist bloggers.

Ministerial Exception Defense Rejected In Suit By Transgender Catholic School Teacher

WABC News reports that a New York state trial court judge yesterday rejected a ministerial exception defense raised by St. Francis Catholic high school in Queens in a suit by a former teacher who claims to have been fired because she announced that she is transgendered.  Marla Krolikowskii, formerly known as Mark, had taught at the school for 32 years when she was fired in October 2012. The court rejected the argument that Krolikowsii is a "minister."  The school claims that Krolikowskii was fired for insubordination.

Scalia Speaks On Christianity and Capitalism

Supreme Court Justice Antonin Scalia spoke Friday at the Lanier Theological Library in Houston, Texas, discussing the relationship between Christianity and capitalism.  According to the Huffington Post, Scalia argued:

[I]n order for capitalism to work -- in order for it to produce a good and a stable society -- the traditional Christian virtues are essential.....

Speaking on the expanding governmental involvement in charity, he said:

The governmentalization of charity affects not just the donor but also the recipient. What was once asked as a favor is now demanded as an entitlement.  The transformation of charity into legal entitlement has produced donors without love and recipients without gratitude.

French Schools Will Post New Secularism Charter

France's Education Minister yesterday unveiled a new Secularism Charter designed to keep religion out of French schools. According to The Local, a poster setting out the 15-point Charter of secular, Republican principles is to be posted prominently in every school.  An example of an item in the Charter is:

Lessons are secular...No subject is a priori excluded from scientific and pedagogic questioning. No student can invoke their political or religious convictions, in order to dispute a teacher's right to address a question on the syllabus.

Muslim Woman Wins Title VII Challenge To Abercrombie's "Look Policy"

In EEOC v. Abercrombie & Fitch Stores, Inc, (ND CA, Sept. 3, 2013), a California federal district court granted partial summary judgment in a Title VII case to a Muslim woman, Umme-Hani Khan, who was terminated from her employment with Abercrombie & Fitch when she insisted on wearing her headscarf (hijab) for religious reasons.  The company insisted that Khan comply with its "Look Policy." The court rejected Abercrombie's claim that accommodation of Khan's religious beliefs would impose an undue hardship.  It also rejected Abercrombie's argument that its Look Policy was protected by the 1st Amendment's commercial speech doctrine because store associates were in effect living advertisements. CAIR issued a press release announcing the decision.

Group Urges SEC To Expand Accredited Investor Rule To Cover Same-Sex Couples

The U.S. Supreme Court's Windsor decision striking down Section 3 of the Defense of Marriage Act is rippling through unexpected corners of federal regulation.  A group of investors and entrepreneurs calling themselves StartupEquality.org last week sent a letter (full text) to the Securities and Exchange Commission urging the expansion of SEC's Regulation D that allows businesses to raise capital from wealthy investors in private placements without filing a full registration statement. SEC Rule 501 defines "accredited investors"-- those who may purchase in private placements-- as including spouses who jointly meet certain income or net worth levels.  The group's letter says that the Windsor decision should be read to automatically extend Rule 501 to same-sex married couples, and urges the SEC to expand the rule so that same-sex couples in civil unions, domestic partnership arrangements and the like who are unable to marry may also aggregate their income and assets to determine accredited investor status.

Presidential Proclamation Declared Last Weekend Days of Prayer and Remembrance For 9-11 Victims

Last Friday President Obama issued a Presidential Proclamation (full text) declaring Friday, September 6 through Sunday, September 8, 2013, as National Days of Prayer and Remembrance to remember the victims of 9-11.  The Proclamation calls on the people of the United States, and others around the world, to honor and remember the victims and their families through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities.

Federal Lawsuit Challenges Noise From Church Bells

The Providence Journal reported last week on a pro se federal lawsuit filed by a Narragansett, Rhode Island man, John Devaney, who objects to the noise from the bells of St. Thomas More Catholic Parish directly across from his home, as well as those of an Episcopal Church nearby. Naming Attorney General Peter F. Kilmartin, Diocese of Providence Bishop Thomas J. Tobin, Archbishop Carlo Maria Vigano, apostolic nuncio to the United States, and Pope Francis as defendants, as well as the administrator of the Epsicopal church, the suit claims that the bells deny Devaney his constitutional rights and the peaceful enjoyment of his property.  Claiming that there are 700 amplified claps and gongs each week, the suit seeks to require the town to apply its noise ordinances to churches and to require the St. Thomas More to reduce the number and volume of its chimes.  The Catholic parish's bells ring for one minute 3 times a day on weekdays, twice on Saturdays and once on Sundays. The diocese claims that Devaney is harassing visitors, worshipers and staff of the parish.

Southern Baptist Convention Bars Its Military Chaplains From Participating In Same-Sex Weddings

The North American Mission Board on Aug. 29 released new Guidelines (full text) clarifying the expectations for all military and VA chaplains endorsed by the Southern Baptist Convention in light of the Supreme Court's invalidation of the Defense of Marriage Act. The new Guidelines provide in part:

All ministries regarding human sexuality will reflect the historic, natural and biblical view of marriage as God's lifelong gift of "the uniting of one man and one woman in covenant commitment for a lifetime."...

Southern Baptists believe that "all forms of  sexual immorality, including adultery, homosexuality and pornography" ... are condemned by Holy Scripture as sin.... Responsible pastoral care will seek to offer repentance and forgiveness, help and healing, and restoration through the mercy and grace of Jesus Christ;s sacrificial gift of love on the cross.

NAMB-endorsed chaplains will not conduct or attend a wedding ceremony for any same-sex couple, bless such a union or perform counseling in support of such a union, assist or support paid contractors or volunteers leading same-sex relational events, nor offer any kind of relationship training or retreat, on or off of a military installation, that would give the appearance of accepting the homosexual lifestyle or sexual wrongdoing. This biblical prohibition remains in effect irrespective of any civil law authorizing same-sex marriage or benefits to the contrary....

[NAMB-endorsed chaplains may not conduct] a service jointly with a chaplain, contractor or volunteer who personally practices a homosexual lifestyle or affirms a homosexual lifestyle or such conduct.

AP reports on the new Guidelines.

Recent Articles and Books of Interest

From SSRN:

• Cyra Akila Choudhury, Governance Feminism's Imperial Misadventure: Progress, International Law, and the Security of Afghan Women, (in 'Contestory Feminisms, Contestory Spaces: Gender and Islam in Asia' (H. A. Ghosh, ed., Syracuse University Press), Forthcoming).
• Cyra Akila Choudhury, Law, Gender and the Burden of Culture, (September 3, 2013).
• William E. Thro, Undermining Christian Legal Society v. Martinez, (Education Law Reporter, 2013, Forthcoming).
• James G. Dwyer, No Accounting for School Vouchers, (Wake Forest Law Review, Vol. 48, 2013).
• Ian C. Bartrum, Book Review: 'The Tragedy of Religious Freedom', (Journal of Church and State, Vol. 55, 2013).
• Mohamed Abdelaal, Egypt's Constitution: What Went Wrong?, (Vienna Journal on International Constitutional Law, Vol. 7, No. 2, p. 200, 2013).

From SmartCILP:

• Symposium: Law, Religion, and Lautsi v. Italy. Introduction by Malick W. Ghachem; essays by Joseph H.H. Weiler and Pierre-Henri Prelot; response by William P. Marshall. 65 Maine Law Review 755-788 (2013).

New Books:

• Matt Apuzzo & Adam Goldman, Enemies Within: Inside the NYPD's Secret Spying Unit and Bin Laden's Final Plot against America, (Touchstone, Sept. 3, 2013), reviewed by Rolling Stone.
• Thomas E. Buckley, Establishing Religious Freedom: Jefferson's Statute in Virginia, (University of Virginia Press, Dec. 2013).
• Richard Regan, The American Constitution and Religion, (Catholic University of America Press, Nov. 2013).

Cert. Petition Filed In Obamacare Case

Last Thursday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Liberty University v. Lew.  In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act. Liberty Counsel issued a press release announcing the filing of the petition.

German Police Raid Christian Sect; Take Children Into Foster Care

AP reports that police in southern Germany on Friday raided two locations of the so-called "Twelve Tribes", a Christian religious sect, and took 40 children for placement into foster care for fear that they are being abused. The children ranged in age from 1 to 17.  Police seized sticks allegedly used to hit the children. Sect members acknowledge that they believe in spanking children, but denied any wrongdoing.  An investigation has been opened by police into the sect that was founded by a Tennessee high school teacher in the 1970's, and which has had run-ins with authorities in the United States in the past as well.  The group has also had problems with German authorities in the past for violating laws barring homeschooling of their children. The Blaze has a longer report on the raid.

Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Recent Prisoner Free Exercise Cases

In Washington v. Afify, 2013 U.S. Dist. LEXIS 125523 (WD NY, Sept. 3, 2013), a New York federal district court dismissed claims by a Muslim inmate that his free exercise rights were infringed by assignment of a cell mate who exposed him to pornographic images and sexually explicit TV and music; that he was denied "religious" meals during Ramadan unless he agreed to work in the mess hall; and that he was not allowed to attend religious services because of misbehavior reports.

In McCallon v. Lasalle Management Co., 2013 U.S. Dist. LEXIS 125768 (WD LA, Sept. 3, 2013), a Louisiana federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125765, Aug. 5, 2013) and dismissed a Muslim inmate's complaints regarding the method of appointing an imam, limitations on participation in Jum'ah services, an improper Ramadan diet and no Eid feast.

In Price v. White, 2013 U.S. Dist. LEXIS 125946 (WD KY, Sept. 3, 2013), a Kentucky federal district court allowed a Jewish inmate to proceed with his claim that his free exercise and RLUIPA rights were violated when he was forced to shave his head while in segregation, in violation of his religious beliefs.

In Watts v. Byars, 2013 U.S. Dist. LEXIS 126148 (D SC, Sept. 3, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125997, June 10, 2013) and rejected a Muslim inmate's complaint that he was served a vegetarian rather than a Halal menu.

In Martz v. Sci-Coal Township Therapeutic Community, 2013 U.S. Dist. LEXIS 125884 (MD PA, Sept. 4, 2013), a Pennsylvania federal district court allowed an inmate to proceed on his claim that he was denied parole on his earliest release date for failure to attend a drug and alcohol program whose secular option to the religious/spiritual segment existed only on paper and not in reality.

In Patel v. Brewton, 2013 U.S. Dist. LEXIS 126242 (SD GA, Sept. 4, 2013), a Georgia federal magistrate judge recommended that an inmate be permitted to proceed on his complaint that defendant improperly ended his religious meals.

In Taylor v. Hubbard, 2013 U.S. Dist. LEXIS 126311 (ED CA, Sept. 4, 2013), a California federal magistrate judge recommended allowing an inmate who practiced Thelema to proceed with claims that some of his religious items were confiscated. Other claims were dismissed for failure to exhaust administrative remedies.

In Tatum v. Clarke, 2013 U.S. Dist. LEXIS 126821 (ED WI, Sept. 5, 2013), a Wisconsin federal district court rejected an inmate's claim that while in jail he was subjected to a year-long retaliatory conspiracy based on his religion. However he was permitted to proceed with certain other religion claims.

In Allen v. Mikarimi, 2013 U.S. Dist. LEXIS 126996 (ND CA, Sept. 5, 2013), a California federal district court dismissed certain defendants and permitted a Muslim inmate to proceed against others on his complaint that Muslims were denied group worship services, while other religious groups were allowed them.

In Ricks v. Albitre, 2013 U.S. Dist. LEXIS 127662 (ED CA, Sep. 5, 2013), a California federal magistrate judge held that an inmate could proceed against certain of the defendants on the claim that they substantially burdened the practice of his religion by failing to provide Wiccan services and failing to purchase Wiccan materials and artifacts.

Appeals Court Upholds Rejection of Noncomplying Articles of Incorporation For Corporation Sole

In Roman Catholic Bishop of San Jose v. Bowen, (CA App., Sept. 5, 2013), a California state appellate court upheld a decision by the Secretary of State to refuse to file the articles of incorporation for "Pastor of Santee Catholic Mission, a corporation sole," because the dissolution provision in the articles does not comply with the requirement of California law that in case of dissolution any remaining assets be distributed to the religious organization governed by the corporation sole. (Corp. Code Sec. 10015).  The articles submitted called for assets on dissolution to go to the Roman Catholic Bishop of San Jose instead of to the Santee Catholic Mission Parish. The Church had argued that the dissolution provisions in the articles were designed to assure that assets remain with the Catholic community if the parish is suppressed.

Westboro Baptist Church Claims Discriminatory Enforcement of Nebraska Funeral Picketing Law

ABP reports that Shirley Phelps-Roper, a member of Westboro Baptist Church, last week filed an amended complaint in her "as applied" challenge to Nebraska's funeral picketing law.  The complaint alleges discriminatory enforcement of the law against Westboro, known particularly for its anti-gay picketing of military funerals.  It cites at least 16 instances of strict enforcement against Westboro picketers, keeping them blocks away, and says that counter-protesters such as motorcycle riders and other citizens are permitted to gather closer to funeral services. It also claims that local officials have taken legal action against Westboro picketers because of disagreement with their viewpoint. The case was remanded to the district court last April in an 8th Circuit decision in Phelps-Roper v. Troutman, following the 8th Circuit's en banc decision upholding Missouri's funeral picketing law.

Georgia State AG Says Public Utilities Commission Cannot Direct Fine Money To Care Net Pregnancy Centers

The Atlanta Journal Constitution reported Thursday that the Georgia's Attorney General, Sam Olens, has advised the Georgia Public Utilities Commission that it lacks authority to approve a proposal by two GPUC members that would have diverted a $10,000 fine imposed on a telephone company to Care Net, a religious pregnancy counseling charity with ties to the two commissioners who back the plan.  While the Public Utilities Commission can enter settlement with companies under which they agree to alternatives to a fine, it is required that there be a connection between the proposed use of funds and the violation.  So customer refunds, or training to prevent natural gas accidents would be permissible. But here the connection is not clear.  Commissioner H. Doug Everett who proposed the plan (and whose wife works as an unpaid Care Net volunteer) says there is a connection. One of the violations for which Peerless Network of Georgia was cited was a failure to ensure the confidentiality of family violence shelters. Commissioner Tim Echols, a Care Net advisory board volunteer who received consulting fees from the parent organization in 2006, supports Everett's plan, with the condition that if it does not pass, the settlement would direct the $10,000 to charitable medical clinics for expanded broadband access.

Suit By Jewish Nursing Student Seeking Excused Absences On Holidays Is Settled

On Wednesday, just before that start of the Jewish holiday of Rosh Hashanah, Dallas County (TX) Community College District announced a settlement in a case that had been filed the day before by an Orthodox Jewish student in the school's nursing program who sought accommodation of his religious beliefs.  As reported by the Dallas Observer, the school threatened to drop student Hillel Rodin from the program because he would be missing a mandatory orientation on Thursday (Rosh Hashanah) as well as four additional days of clinical observation scheduled for other Jewish holidays.  In settling the case, the parties agreed that Rodin would make up his clinical requirements on appropriate dates in January 2014.  Originally the school insisted that Rodin seek a dispensation from his rabbi allowing him to attend class on the holidays and make clinical rounds on those days, merely postponing writing his observations and diagnoses until after the holiday ended.

Massachusetts High Court Hears State Constitutional Challenge To Pledge

On Sept. 4, the Massachusetts Supreme Judicial court heard oral arguments (video of full arguments) in Doe v. Acton-Boxborough Regional School District. The suit was brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. (No student who objects is required to recite the pledge.) The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was merely a reference to historical and religious traditions. (See prior posting.)  RNS describes the 35 minute oral argument.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

This week a suit was filed by another for-profit family-owned business, along with its two controlling officers, challenging the Affordable Care Act contraceptive coverage mandate under the 1st Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint (full text) in Barron Industries, Inc. v. Sebelius, (D DC, filed 9/4/2013) involves a Michigan-based metal products company with 56 full-time employees.  The complaint alleges in part:

  Plaintiffs operate by their business practices, pursuant to their guiding principle— which is their faith in God—and receive grace and guidance from God in all their business practices, including Plaintiffs’ selection of health insurance....

Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life. Therefore, Plaintiffs seek to exclude this objectionable coverage from their health insurance plan.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.