Indian Court Sentences 3 To Life In Prison for 1984 Anti-Sikh Killings

The Business Standard reports that a court in India yesterday sentenced 3 defendants to life in prison for killing 5 people in 1984 in anti-Sikh riots that followed the assassination of prime minister Indira Gandhi.  The prosecution had sought the death penalty. Two others involved (a former councilor and former legislator) were sentenced to 3 years for rioting. All 5 also received fines.  The 5 were convicted in a trial last month.  In that trial, Indian National Congress Party leader Sajjan Kumar was acquitted.

Court Denies Freedom of Information Request Relating To NYPD Surveillance of Muslims

In Asian American Legal Defense & Education Fund v. New York City Police Department, (NY Sup. Ct., May 6, 2013), a New York trial court upheld the NYPD's rejection of a Freedom of Information Law request by two groups seeking to learn more about the city's domestic surveillance program that targeted Muslims.  The groups sought information regarding record keeping and retention, policy guidelines and statistics related to the surveillance. The court said that the city properly relied on the statutory exemption for information "compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures ." The court also identified several other exceptions that would justify denial of parts of the FOIL request. The New York Daily News reports on the decision.

Land Agreement Under Reformed FLDS United Effort Plan Trust Upheld

In Town of Colorado City v. United Effort Plan Trust, (D AZ, May 8. 2013), an Arizona federal district court gave a victory to the state of Utah in its efforts to reform the United Effort Plan Trust which holds property occupied by members of the polygamous Fundamentalist Church of Latter Day Saints (FLDS). In this lawsuit, the twin towns of Colorado City, Arizona and Hildale, Utah (along with their water and electric companies) sought a declaratory judgment as to (1) whether transfers of property by the court-appointed special fiduciary are constitutional, and (2) whether the Cookes who occupy a parcel of land under a 2008 agreement with the special fiduciary or Robert Black who previously occupied it through a 1999 oral agreement under the unreformed trust have a legal right to it.

As to the constitutional issue, the court held that while the claim was not barred by res judicata or collateral estoppel (see prior posting), the towns are barred by the doctrine of laches from asserting their claims:

Plaintiffs waited years to assert that claim, during which hundreds of property transactions were completed in reliance on the validity of the reformed trust and Mr. Wisan’s actions

On the question of right to occupancy, the court ruled in favor of the Cookes.  It focused on language in the trust at the time Black obtained his occupancy rights: "use of property owned by the United Effort Plan Trust is not and does not
become a right or claim of anyone who may benefit in any way from the Trust." It also concluded that the statute of frauds precludes Black from asserting a claim of property rights and that Black has abandoned any rights he had in the property.

Puerto Rico Federal Court Issues Opinion Explaining Its Prior Order On Proselytizers' Access To Gated Communities

In a long-running free-exercise/ free-speech case, in March a the federal district court in Puerto Rico, on remand from the 1st Circuit, ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents. (See prior posting.) Apparently the negative response to the ruling impelled the court to issue an opinion further explaining its order. Watchtower Bible Tract Society of New York, Inc. v. Municipality of Santa Isabel, (D PR, May 6, 2013), is an opinion captioned: "Order Summarizing the Law and Court Orders Regarding the Right of Jehovah's Witnesses To Access Public Streets In Gated Communities In Puerto Rico." In it, the court said in part:

The Court is aware this case has sparked extreme public debate...  The Court is not deaf to the concerns of the general public that resides in gated communities. To be sure, as much as this case is about civil liberties, it is also about the frightening amount of crime currently suffocating the island. The general public, as evidenced by the hordes of motions recently filed by the Municipal Defendants, appears not to grasp the notion that this Court is only enforcing an order of a higher court. In doing so, this Court must strike a balance between a legitimate form of protection against crime and protecting the civil liberties of the citizenry in Puerto Rico....

The Court has not granted unfettered access to violent criminals, nor should any knowledgeable or reputable person spread such fear. The gates were erected as a means to reduce crime on the island. Since the enactment of the Control Access Law, crime has not substantially abated on the island. The Court is not aware of a single instance in which any Jehovah’s Witness has been charged or convicted of a crime while expressing his or her religious beliefs. The Jehovah’s Witnesses enjoy the same First Amendment rights as all residents of Puerto Rico. If access to public streets can be denied to them, then access can be denied to anyone. For example, an aspiring politician will be barred from going door-to-door seeking endorsements. Likewise, the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case. More so, during Easter, Catholics could similarly be barred from participating in a Via Crucis on public streets....

A copy of this order shall be provided by each Municipality to the administrator of every gated community.

Catholic Army Sergeant Claims Harassment Because Fellow-Soldiers Thought She Was Muslim

AP reported at length yesterday on the problems faced in the U.S. Army by Sgt. 1st Class Naida Hosan who is Catholic, but whose fellow-soldiers thought she was Muslim.  She was taunted so much by other soldiers that before deploying to Afghanistan last year, she changed her name to Naida Christian Nova. However this did not stop the anti-Muslim slurs and jokes directed at her. Nova is a multicultural Farsi linguist. She says that when she filed a formal complaint about her treatment in 2007, her commander removed her from her job and ordered her to take a mental health evaluation. Ultimately she was sent back from Afghanistan to Ft. Bragg and threatened with an involuntary termination of her military career for  "ineffective leadership." After a federal lawsuit was filed, the Army dropped all its disciplinary charges and Nova has re-enlisted.

Another Contraceptive Coverage Challenge Filed By A For-Profit Small Business

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed. Thomas More Law Center announced the filing of a suit yesterday on behalf of a family-owned company that is a leading supplier of custom injection molding products, and on behalf of the four brothers who own and control the business. Three of the brothers are Catholic and one is Baptist. The complaint (full text) in M&N Plastics, Inc. v. Sebelius, (ED MI, filed 5/8/2013), asserts that plaintiffs in particular object to the requirement that the health insurance policies they provide cover Plan B and ella "since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person." The complaint alleges that the mandate violates the 1st Amendment, RFRA and the Administrative Procedure Act.

Texas Trial Court Says Cheerleaders Can Use Run-Throughs With Religious Messages

A Texas trial court yesterday decided a widely-followed Establishment Clause case.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., May 8, 2013), the court rejected an Establishment Clause challenge to high school cheerleaders displaying their own banners and "run-throughs" containing religious messages at football games and other sporting events. The court had previously issued a temporary injunction after concluding that the cheerleaders were engaging in private religious expression. (See prior posting.) In yesterday's brief decision, the court said in part:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

After the decision, Texas attorney-general Greg Abbot issued a statement (full text) saying in part:

This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices. The Freedom From Religion Foundation was wrong in trying to bully Kountze ISD into prohibiting the cheerleaders from displaying banners with religious messages. Our Constitution has never demanded that students check their religious beliefs at the schoolhouse door.

Texas Governor Rick Perry also issued a statement (full text), praising the cheerleaders of showing "great resolve and maturity beyond their years." Liberty Institute issued a press release announcing the decision, and ABC News reports on the decision in the widely-followed case. The Freedom From Religion Foundation issued a press release calling the decision "misguided."

Statement Clarifies Charges That Military Has Been Hostile To Evangelical Christians

In recent weeks, the blogosphere has been filled with various charges that the U.S. military has taken actions seen as hostile to evangelical Christians.  On Monday, the Southern Baptist Convention's North American Mission Board and Ethics and Religious Liberty Commission issued a statement (full text) finally bringing some clarity to what actually happened.  As it turns out, the military has admitted that some of its actions were erroneous and corrected them. Other actions were mischaracterized in the media. The military does take the position that "proselytizing", defined as unwelcome coercion of religious beliefs, would be considered a Uniform Code of Military Justice offense.  Unwelcome advances are seen as violating good order and discipline by forcing faith beliefs on others.

City Officials Tell Store Owner To Remove Madonna Statue From Traffic Island

West Springfield, Massachusetts has created a beautification initiative under which businesses and individuals on the West Side agree to landscape and maintain specific parcels of public property. According to today's The Republican, officials in West Springfield have told local pizza store owner Antonio Liquori that he has gone too far in his beautification activities. After receiving several complaints, officials have ordered Liquori to remove a statute of the Virgin Mary that he put up nearly a year ago on a traffic island he has adopted. At least one local resident, Joan Palermo, is mounting a petition drive to get the statute returned. According to 22 News, Palermo complained: "Everyone I know was very upset…The Virgin Mary wasn't doing anything, she was beautiful." City officials say that in the future, beautification efforts will be limited to plantings.

Settlement Reached In Suit By Christian Proselytizers Arrested At Arab International Festival; More Confrontations Likely This Year

The American Freedom Law Center announced this week that a settlement has been reached in Acts 17 Apologetics v. City of Dearborn. In the case, three Christian evangelists sued over their arrest and subsequent breach of the peace trial for proselytizing Muslims at Dearborn, Michigan's Arab International Festival. (See prior posting.) Under the settlement agreement, the city will post a public apology on its website, remove from its website a press release and letter from the mayor that contained derogatory comments about Christians, and will pay an undisclosed amount to plaintiffs.

Meanwhile Dearborn's mayor announced last month that this year the site of the festival was being moved to a local park, a site that the police can better control. (Detroit Free Press, April 29). It is likely that police will face challenges at the June 14-17 festival this year. According to yesterday's Oakland County Daily Tribune, inflammatory anti-Muslim Florida pastor Terry Jones plans to attend the festival again this year:

Jones announced that he and Pastor Wayne Sapp will be joined by Ruben Israel of the Bible Believers, whose appearance at last year’s festival led to items being thrown at them and the video being posted on YouTube; Pastor David Grisham of Repent Amarillo; and Rabbi Nachum Shifren of the California Security Council.

DC Circuit Grants Government's Strategic Motion For Dismissal of Its Contraceptive Coverage Appeal [UPDATED]

As reported by the Christian Science Monitor, last week the D.C. Circuit Court of Appeals granted the government's motion to dismiss its appeal of a preliminary injunction won by Tyndale House, a for-profit Bible publishing company, against enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) An appeal is pending in the D.C. Circuit in another case raising the same issues and it is being heard by a different 3-judge panel that apparently the government considers more sympathetic to its arguments. Tyndale House had opposed the government's motion to dismiss the appeal, but now that it has been dismissed Tyndale House lawyers say: "The government dismissed its appeal because it knows how ridiculous it sounds arguing that a Bible publisher isn’t religious enough to qualify as a religious employer."

UPDATE: The issue of the motivation behind the government's motion is more complex than suggested above.  It turns out that the 3-judge panel which denied appellants an injunction pending appeal in the other pending case, Gilardi v. Sebelius, also granted an expedited appeal and ordered that "the case be scheduled for oral argument on the same day and before the same panel as Tyndale House Publishers, Inc. v. Sebelius", sometime in September. (Full text of order denying injunction and ordering same panel.) Of course, now there is no "same panel" to hear the Gilardi appeal, and it is unclear whether it will go before the panel that heard and denied the motion in Gilardi for an injunction pending appeal-- the one presumably favored by the government. So it may be that the government merely thought that Gilardi was a better case on the merits for it to use to test the issue since the companies there are not engaged in a business related to religion in the way a Bible publisher in Tyndale is. (See prior related posting.) [Thanks to Duane Schmidt for the lead.]

Delaware Becomes 11th State To Permit Same-Sex Marriages

As reported by the New York Times, Delaware today became the 11th state to authorize same-sex marriage. The new law also converts exiting Delaware civil unions into marriages.  House Bill No. 75 (full text) was passed last month by the state House of Representatives by a vote of 28-18.  The state Senate passed the bill just before 7:00 pm tonight by a vote of 12-9. (Legislative history.) Gov. Jack Markell signed the bill within minutes of its passage. The new law protects clergy who object to performing same-sex marriages.  It provides:

nothing in this section shall be construed to require any person (including any clergyperson or minister of any religion) authorized to solemnize a marriage to solemnize any marriage, and no such authorized person who fails or refuses for any reason to solemnize a marriage shall be subject to any fine or other penalty for such failure or refusal.  Notwithstanding the preceding sentence, a clerk of the peace who issues a marriage license, or a deputy thereof, shall be required to perform a solemnization of such marriage if requested by the applicants for such license.

Louisiana Supreme Court Invalidates State School Voucher Program

The Louisiana Supreme Court today in a 6-1 decision held that the state's school voucher program enacted in 2012 violates the state constitution.  In Louisiana Federation of Teachers v. State of Louisiana, (LA Sup. Ct., May 7, 2013), the majority addressed both the statute creating the program (Act 2) and the Senate concurring resolution (SCR 99) approving the funding formula created by the State Board of Elementary and Secondary Education. The majority said:

SCR 99 and Act 2 unconstitutionally divert MFP [Minimum Foundation Program] funds to nonpublic entities in violation of La. Const. art. VIII, § 13(B), which requires state MFP funds to be allocated equitably to “parish and city school systems.” We also hold that ... SCR 99 did not satisfy all that the constitution requires of a matter intended to have the effect of law. SCR 99 was not timely introduced or considered in the legislative session and the final vote on SCR 99 was insufficient to enact a matter intended to have the effect of law.

Justice Guidry filed a dissenting opinion. The Advertiser has reactions of various Louisiana officials to the decision.

Some New Jersey Legislators Question State Construction Funding Award To Jewish Rabbinical School

Yesterday's Newark Star-Ledger reports that in New Jersey, some Democrats are questioning the inclusion of a large, all-male Orthodox Jewish rabbinical school among the institutions of higher education that will participate in the $1.3 billion of state financing for construction at New Jersey colleges and universities.  The 6,600 student Beth Medrash Govoha, based in Lakewood, is scheduled to receive $10.6 million for a new library and academic center.  Assembly Speaker Sheila Oliver says that the school essentially has a religious test for admission.  Students who wish to enroll must speak Hebrew, know Jewish sacred texts and agree not to date during their the first six months at the school. The school's vice president denies that it imposes a religious test, saying however that the school does have strict educational standards.  The head of the school, Rabbi Aaron Kotler, traveled with Gov. Christie to Israel last year, and the Orthodox Jewish community has endorsed Christie in his race for re-election. The higher education bond bill passed last year originally would have excluded schools that primarily train ministers, priests or rabbis, but that limitation was removed after a lobbyist retained by Beth Medrash Govoha met with New Jersey legislators. The state legislature has 60 days to reject the governor's list of schools that will participate.

Court Rejects Proposed Settlement In Challenge To Nevada's Prison Policy On Kosher Food

In Ackerman v. State of Nevada Department of Corrections, (D NV, May 3, 2013), a Nevada federal district court rejected a proposed settlement of a class action brought on behalf of 205 inmates who objected to the state prison system's provision of a common fare menu instead of kosher food. The court also dissolved the preliminary injunction it had previously issued to allow plaintiffs to continue to receive kosher meals, and decertified the plaintiff class, some of whom now apparently had diverging interests. This means that the state can move ahead with its original plans.  As reported by the Las Vegas Sun, under the proposed settlement, the state would have had an outside organization certify the prison kitchen preparing the common fare meals as kosher. However more than 20% of the inmates who were members of the plaintiff class, including the lead plaintiff, objected to the settlement. Complaining members of the class insisted that they were inadequately represented by counsel. The court said in part:

the Court continues to recognize that the likelihood of success on the merits is not strong. What has changed since the original injunction order is that the balance of equities no longer tips sharply in favor of Plaintiff or any of the class. Defendants, as representatives of the State of Nevada and its citizens, have borne the financial burden of delaying implementation of a cost-cutting menu, at a time when the state is experiencing budget emergencies.

Indiana Suit Against Catholic Diocese Seeks Damages For Disabled Daughter's Sexual Encounter At Abstinence Retreat

The Indianapolis Star reported yesterday on a lawsuit pending in state court in Daviess County, Indiana, brought against the Catholic Diocese of Evansville and several others by the mother of a developmentally disabled young woman over events at a church-sponsored abstinence retreat 5 years ago.  The daughter (then 23 years old), who because of her mental condition was unable to legally consent, had sex with a 25-year old man also attending the retreat. Subsequently, in a plea deal, he was apparently convicted of rape and deported.  The lawsuit brought by Silvia Gameros charges the Diocese with failing to protect her daughter and then trying to cover up the incident. The suit also names as defendants Our Lady of Hope Catholic Church (the parish that hosted the retreat for Hispanic youths), and two outreach workers with the diocese's Guadalupe Center which sponsored the retreat. One of those workers, a friend, extended a last-minute invitation to the daughter to attend, in part in an effort to get a large attendance. The suit seeks damages to cover the medical care and counseling of the daughter, as well as punitive damages.

Can High School Students Pray Instead Of Going To Class?

The question of what limits there are on student-initiated prayer in schools has surfaced in Lumpkin County, Georgia.  According to Fox5 News, last Wednesday a student member of Lumpkin County High School's Fellowship of Christian Athletes showed up at the coach's office at 7:30 am and began to pray with the coach.  The prayer lasted over two hours, and before it was finished some 50 students had joined in the prayer that extended into first period when they should have been in class.  Lumpkin County Schools Superintendent Dewey Moye says that the students were within their right, but that from now on there will be no prayers during school hours. According to Opposing Views, the ACLU is investigating the incident.

In Bangladesh, 3 Killed In Demonstration Demanding Blasphemy Law With Death Penalty

Yesterday in Dhaka, the capital of Bangladesh, three people were killed and at least 50 were injured in clashes between security forces and demonstrators who are demanding a blasphemy law with provision for the death penalty. According to Al Jazeera, demonstrators are supporters of a new group, Hefazat-e-Islam, which has a list of 13 demands, including mandatory religious education, a ban on men and women mixing freely together and restoring pledges to Allah in the constitution.

Recent Articles of Interest

From SSRN:

• Jeroen Temperman, Are State Churches Contrary to International Law?, (2:1 Oxford Journal of Law and Religion pp. 119-149 (2013) (Forthcoming)).
• Menachem Mautner, The Immanuel Affair and the Problems of Intercultural Encounter, (Democratic Culture in Israel and in the World, Vol. 15, 2013).
• Ronald K.L. Collins, Comedy and Liberty: The Life and Legacy of Lenny Bruce, (Social Research, Vol. 79, No. 1, pp. 61-86 (Spring 2012)).
• John D. Inazu, The Freedom of the Church (New Revised Standard Version), (Journal of Contemporary Legal Issues, Forthcoming).
• Jack M. Balkin, Must We Be Faithful to Original Meaning?, (Jerusalem Review of Legal Studies, 2013).
• Aaron J. Saiger, Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education, (Cardozo Law Review, Vol. 34, No. 1163, 2013).
• Clark B. Lombardi and Nathan J. Brown, Islam in Egypt's New Constitution, (Foreign Policy, December 2012).
• Clark B. Lombardi, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, (International Journal of Constitutional Law, 2013).
• Fiona De Londras and Laura Graham, Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate, (Irish Journal of Legal Studies, Forthcoming).
• Roberta Rosenthal Kwall, Remember the Sabbath Day and Enhance Your Creativity!, (St. Thomas Law Review (Minnesota), Forthcoming).
• Caroline Mala Corbin, Compelled Disclosures, Alabama Law Review, Forthcoming.

From SmartCILP:

• Frederick Mark Gedicks, Narrative Pluralism and Doctrinal Incoherence in Hosanna-Tabor, 64 Mercer Law Review 405-435 (2013).
• Kent Greenawalt, Religious Toleration and Claims of Conscience, [Abstract], 28 Journal of Law and Politics 91-128 (2013).
• Robert Luther III, "Disparate Impact" and the Establishment Clause, [Abstract], 10 Georgetown Journal of Law and Public Policy 529-538 (2012).
• Brian M. Murray, The Elephant in Hosanna-Tabor, 10 Georgetown Journal of Law and Public Policy 493-528 (2012). 

Obama Sends Greetings To Those Observing Orthodox Christian Easter

Yesterday was Easter on the Orthodox Christian calendar.  On Saturday, President Obama issued a statement (full text) extending best wishes from himself and the First Lady to Orthodox Christians in the U.S. and around the world observing Holy Friday and the Feast of the Resurrection.  The statement said in part:

For millions of Orthodox Christians, this is a joyful time.  But it’s also a reminder of the sacrifice Christ made so that we might have eternal life.  His decision to choose love in the face of hate; hope in the face of despair is an example we should always strive to follow.  But it’s especially important to remember this year, as members of the Orthodox community have been confronted with persecution and violence, particularly in the Middle East and North Africa.