Recent Articles of Interest

From SSRN:
Sandeep Gopalan, From Darfur to Sinai to Kashmir: Legalization and Ethno-Religious Conflicts, (August 18, 2007).

Paul E. McGreal, Social Capital in Constitutional Law: The Case of Religious Norm Enforcement Through Prayer at Public Occasions, SUI School of Law Research Paper No. 2007-1 (Aug. 15, 2007).

Belinda M. Smith, From Wardley to Purvis - How Far has Australian Anti-Discrimination Law Come in 30 Years?, Sydney Law School Research Paper No. 07/55.

Free Exercise Defense Being Raised To Smuggling Charges

The New York Sun today reports on a free exercise case that is moving toward trial in federal court in the Eastern District of New York. At a hearing earlier this month, a judge ruled that a New York woman-- originally from Liberia-- has standing to raise a free exercise of religion defense to charges of smuggling monkey meat into the United States. The defendant, Mamie Manneh, says that the monkey parts were imported for use in religious ceremonies. Supporting her claim are the pro bono efforts of a major New York law firm and potential testimony from a Harvard Divinity School faculty member.

Losing Plaintiff Gives His Arguments In Church Polling Place Controversy

The unsuccessful plaintiff in a recent Florida lawsuit challenging the use of a Catholic church as a polling place, gives his side of the argument in an op-ed piece in today's South Florida Sun-Sentinel. Jerry Rabinowitz, plaintiff in the federal court case of Rabinowitz v. Anderson, says:

As I approached my polling location I passed a large, anti-abortion banner put there by the host, Emanuel Church. Inside the religious classroom that served as the voting location, I was presented with religious iconography in every direction, including directly above the voting booths.... Although abortion, stem cell research, and gay rights weren't on that ballot, they are issues candidates run on and use to receive support. And they are religious concerns. Thus religion is, in that sense, on the ballot, making a church polling place inappropriate in any fair election.

CNN To Present Series On Religious Radicals

CNN is giving extensive publicity to its 3-part documentary, God's Warriors, scheduled for this week. Produced by Christiane Amanpour, the special will run two hours on three successive evenings beginning tomorrow. Tuesday's program is on Judaism, Wednesday's is on Islam and Thursday's is on Christianity. CNN says the series will explore "the intersection between religion and politics and the effects of Christianity, Islam and Judaism on politics, culture and public life," and it is asking viewers to submit questions ahead of time to Amanpour. David Yonke of the Toledo Blade describes the series this way:

For those who follow the news closely, there will be few major revelations in this series. Most of God's Warriors centers on pivotal events of recent history that have religious connections.... Around this historical framework, however, Amanpour and her crew expand on the events by interviewing extremists and their families and getting insights from political, cultural, and religious experts, seeking to understand the reasons behind the headlines.

The series has been extensively reviewed in newspapers and online forums across the country. Here is a sampling of the reviews from AP, the San Diego Union-Tribune, the Toledo Blade, and Variety. A summary of each episode is at Digital Home.

Thais Approve New Constitution by Divided Vote- No State Religion In It

Thailand voters approved its new Constitution yesterday by a divided vote-- only 57% voting in favor of it. (Bangkok Post). Early on the Constitution was controversial because of its failure to make Buddhism the state religion. That issue, however faded after a speech by Queen Sirikit earlier this month. (See prior posting).

Recent Prisoner Free Exercise Cases

In Quintana v. Edmond, 2007 U.S. Dist. LEXIS 58213 (D CO, Aug. 9, 2007), a Colorado federal district court permitted an inmate to move ahead with his claim that he was singled out for additional experimental urinalysis tests because he was permitted to smoke tobacco for religious reasons. The court said this could amount to a violation of plaintiff’s equal protection rights based either on his religion or his status as a Native American heritage. UPDATE: The Magistrate Judge's recommendations in the case are reported at 2007 U.S. Dist LEXIS 62203.

In Kay v. Friel, 2007 U.S. Dist. LEXIS 58205 , (D UT, Aug. 7, 2007), a Utah federal district court dismissed a prisoner’s complaint after he failed to amend it to adequately state a claim. Plaintiff’s allegation of interference with his free exercise rights was merely conclusive, and did not allege facts about the nature of his religious beliefs or about the items and rituals allegedly denied to him.

In Mustafa-Ali v. Irvin, 2007 U.S. Dist. LEXIS 58477, (SD MI, Aug. 9, 2007), a Mississippi federal Magistrate Judge rejected an inmate’s equal protection and free exercise claims. Plaintiff complained that the warden had denied him a hardback copy of the Quran, a prayer rug, special toiletry and shower facilities and a pork-free meal during Ramadan.

A case from several months ago, not previously discussed, is David v. Giurbino, 2007 U.S. Dist. LEXIS 19179 (SD CA, March 16, 2007), in which a federal judge accepted a Magistrate’s Report and Recommendation, 2007 U.S. Dist. LEXIS 59160,(SD CA, Jan. 22, 2007), that plaintiff’s complaint be dismissed. The case involved a Native American prisoner’s challenge to grooming regulations that did not permit him to wear his hair long enough to extend below his shirt collar. The complaint stems from action before changes in prison policy in response to a 2005 decision by the 9th Circuit. The Magistrate Judge found that prison officials were entitled to qualified immunity because before 2005 it would not have been apparent that the prison’s policies violated RLUIPA.

In Oram v. Hulin, 2007 U.S. Dist. LEXIS 60264 , (D ID, Aug. 16, 2007), an Idaho federal district court permitted a Seventh Day Adventist inmate to proceed with his claim that his First Amendment free exercise rights were violated when he was denied a religious diet. However, the court dismissed plaintiff’s equal protection claim.

Indian Tribe Seeks To Preserve Sacred Items Far From Reservation

The Day (New London, CT) today reprints a New York Times News Service story on the legal battle being waged by Arizona's Quechan Indians. They are attempting to force Arizona Clean Fuels, developers of a planned $4 billion refinery located 40 miles away from the Quechan reservation, to conduct an archaeological and cultural inventory to look for sacred Quechan remains. At issue is how far beyond the borders of their reservations Indian tribes can extend their demands for cultural preservation. The Quechans have already stopped a planned gold mine and a planned nuclear waste dump in California beyond the borders of their reservation. However in June a federal district court refused to issue a preliminary injunction to stop the land transfers involved in the refinery project. Quechan Indian Tribe v. United States DOI, 2007 U.S. Dist. LEXIS 47974 (D AZ, June 29, 2007), and the case is on appeal to the 9th Circuit. Meanwhile, last month the district court completely dismissed a portion of the complaint in the case, 2007 U.S. Dist. LEXIS 50776 (D AZ, July 12, 2007).

Sri Lankan Buddhists Concerned About New Movie, "Music and Lyrics"

The February 2007 Warner Bros. film, Music and Lyrics, has created a legal and religious controversy in Sri Lanka. Colombo's Sunday Times reports that the film has offended Buddhists who have seen it because of the final scene in which film character Cora Corman (played by Haley Bennett) emerges, scantily clad, from a figure of Buddha. Sri Lanka's Secretary of Religious Affairs and Moral Uplift, P. Kodituwakku , said that currently there is no law on the books that allows the government to take action against the film, though the Cabinet has been considering new legislation that would prohibit the misuse of religious symbols. Last year, Ven. Daranagala Kusaladhamma Thera, Chief Incumbent of Sri Sambodhi Viharaya, filed a suit in the Supreme Court challenging misuse of religious symbols in another case, and, while the Court has not yet decided the case, it did order that no religious image should be used in a manner that insults a religion until its decision is handed down.

Connecticut Episcopal Diocese Sues Break-Away Parish

Another lawsuit joins the long list of those involving property disputes between break-away Episcopal congregations and their former Diocese. This time it is the Episcopal Diocese of Connecticut suing Trinity Episcopal Church in Bristol. In May, the parish affiliated with the conservative Anglican Church of Nigeria in a dispute over the ordination of an openly gay man as the Episcopal Bishop of New Hampshire. Yesterday's Hartford Courant reported the lawsuit claims that by doing so, Trinity's leaders gave up the right to control parish property. Trinity and five other parishes are already appealing a case they lost last year in which they challenged the Diocese's attempt at that time to remove their priests and take over parish property. [See prior posting.] [Thanks to Nick Uva for the lead.]

NYT Magazine Explores the Politics of God

This morning's New York Times Magazine carries a long cover story by Columbia University professor Mark Lilla titled The Politics of God. Here is an excerpt:

A little more than two centuries ago we began to believe that the West was on a one-way track toward modern secular democracy and that other societies, once placed on that track, would inevitably follow. Though this has not happened, we still maintain our implicit faith in a modernizing process and blame delays on extenuating circumstances like poverty or colonialism. This assumption shapes the way we see political theology, especially in its Islamic form — as an atavism requiring psychological or sociological analysis but not serious intellectual engagement. Islamists, even if they are learned professionals, appear to us primarily as frustrated, irrational representatives of frustrated, irrational societies, nothing more. We live, so to speak, on the other shore. When we observe those on the opposite bank, we are puzzled, since we have only a distant memory of what it was like to think as they do. We all face the same questions of political existence, yet their way of answering them has become alien to us. On one shore, political institutions are conceived in terms of divine authority and spiritual redemption; on the other they are not. And that, as Robert Frost might have put it, makes all the difference....

Even the most stable and successful democracies, with the most high-minded and civilized believers, have proved vulnerable to political messianism and its theological justification. If we can understand how that was possible in the advanced West, if we can hear political theology speaking in a more recognizable tongue, represented by people in familiar dress with familiar names, perhaps then we can remind ourselves how the world looks from its perspective.

Hindu Priest To Open California Senate Session

Later this month, a Hindu priest will deliver the opening prayer before the California state Senate. India-West reports that the invocation, scheduled for August 27, will be delivered by Rajan Zed, who last month became the first Hindu clergy member to deliver the invocation in the United States Senate. That milestone was accompanied by protests in the U.S. Senate Gallery by a group of conservative Christians. (See prior posting.) [Thanks to Alliance Alert for the lead.]

Court Dismisses Suit Over Expulsion of Student From Catholic School

In Connor v. Archdiocese of Philadelphia, (PA Super. Ct., Aug. 16,2007), a Pennsylvania state appellate court upheld the dismissal of claims alleging defamation and intentional infliction of emotional distress brought by the parents of a 7th grade Catholic school student who had been expelled from school. The claims grew out of a letter sent to other school parents by school personnel , allegedly falsely accusing their son of bringing a penknife to school. The trial court dismissed the claims under the First Amendment-based "deference rule" which denies civil courts jurisdiction over ecclesiastical issues. The appellate court agreed that "it is not within the purview of the courts of this Commonwealth, under the guise of a tort action, to review a decision to expel a student from a parochial school." It went on to say that, "if our civil courts may not review an action that challenges the legitimacy of a disciplinary decision of a parochial school, then, in like fashion, they may not review an action that challenges the dissemination of information regarding that decision, at the very least within the narrowly circumscribed limits of the parish community."

Indian State to Ban Non-Hindu Activities Near Temple

Bowing to the wishes of the board that administers the Sri Venkateswara Temple (see prior posting), the government of the Indian state of Andhra Pradesh has announced that it plans to impose a ban on non-Hindu religious activities in a 110 sq. km. area surrounding the shrine. Christian Today reported on Saturday that the Global Council of Indian Christians has asked the governor of the state not to approve the legislation imposing the ban. They fear the ban will be used to harass non-Hindu residents in the area. The law will also require federal government approval before it can go into effect.

UPDATE: Apparently this new legislation is in addition to legislation enacted in June that permits the Andhra Pradesh government to prohibit propagation of religion in places of worship other than the religion traditionally practiced there. That law, the Andhra Pradesh Propagation of Other Religions in the Places of Worship or Prayer (Prohibition) Ordinance, 2007 was implemented by Government Order 747 that applies the prohibtion to 20 Temples in the state. (Persecution Update India.) The Aug. 20 Times of India says that Christian groups will file suit in the High Court challenging the constitutionality of that Order, and arguing that it is being misapplied to also ban social work by non-Hinud groups in the 20 towns involved.

Utah Judge Interviews Candidates For FLDS Trust Advisors

In St. George, Utah on Friday, a state district judge held a hearing to interview eight individuals who have been nominated to serve on the advisory board for the United Effort Plan, the trust that holds the property of the Fundamentalist Church of latter Day Saints, formerly led by Warren Jeffs. The court took control of the trust in 2005 and appointed Bruce Wisan as special fiduciary to manage the trust’s $100 million in assets. Today’s Deseret Morning News and Salt Lake Tribune both report on the hearing and on the complexities involved in determinations the board will need to make in allocating businesses and homes to individuals who are or were FLDS members. (See prior related posting.)

NY Court Decides Standing Issues In Challenge To Yeshiva Housing

Last Tuesday, a New York State appellate court issued a complicated decision on various parties’ rights to bring suit to challenge an enactment by the Town of Ramapo that permitted the construction in residential areas of adult married-student housing for students attending Orthodox Jewish educational institutions in the town. Four villages located within the Town, as well as two residents of the Town, challenged the ordinance on various grounds.—including the procedures used in enacting the law, its compliance with the State Environmental Quality Review Act (SEQRA), and constitutional challenges based on alleged discrimination against unmarried students, on favoritism of one religious group and on alleged improper exercise of the Town’s police powers.

In In re Village of Chestnut Ridge v. Town of Ramapo, (App. Div., 2d Dept., Aug. 14, 2007), the court concluded that the Villages have standing to assert the environmental claims and claims regarding required reviews of the proposed zoning law. The individuals have standing to assert these, plus claims that the law was inconsistent with provisions on municipal home rule, that it was inconsistent with the Town’s comprehensive plan, and that its enactment exceeded the Town’s police powers. None of the parties have standing to raise the other constitutional claims being asserted.

Covering the decision, today’s Lower Hudson Journal News quoted Dennis Lynch, attorney for one of the developers involved, who said the appeals court decision "is a lawyer's delight because everyone can sue everybody."

Church Appeals RLUIPA Eminent Domain Decision

In Rocky Mount, North Carolina, Life United Pentecostal Church filed an appeal Friday of a trial court's decision that allows the Board of Education to take the church’s property through eminent domain. The church had invoked the federal Religious Land Use and Institutionalized Persons Act to prevent the taking. (See prior posting.) The Rocky Mount Telegram says that the parties, however, are scheduled to meet on Thursday to discuss the price that the Board is willing to pay for the land. The church wants $1.8 million. The Board says the land is worth $788,400.

11th Circuit Rejects Dismissal of Free Exercise Claim By MSW Student

The 11th Circuit Court of Appeals today issued an interesting split opinion in a First Amendment speech and free exercise case-- Watts v. Florida International University, (11th Cir., Aug. 17, 2007). The case arose when John Watts, a Master of Social Work student at Florida International, a state university, could not graduate because he had been terminated from participating in a required practicum in which he was enrolled at a private psychiatric hospital. His dismissal came after he advised a patient that she join a bereavement support group. When the patient asked where she could find such a group, Watts, noting that her record showed she was Catholic, indicated that "church" was one of the options. The hospital said that this was "inappropriate behavior related to patients, regarding religion."

The Court of Appeals upheld the lower court's dismissal of Watts free speech claim, finding that, under the Supreme Court decision in Connick v. Myers, the government as Watts' employer could dismiss him even though it was based on speech. He was not here speaking as a citizen on matters of public concern. The court assumed, without discussing the matter, that the Connick test does not apply to a dismissal of an employee for exercise of religious beliefs.

The majority (Carnes, J. with Hill, J. concurring in his opinion) then held that, at least on the pleadings, Watts stated a valid free exercise claim when his complaint alleged: "Mr. Watts' religious beliefs include the belief that a patient who professes a religion is entitled to be informed if the counselor is aware of a religious avenue within the patient's religion that will meet the appropriate therapy protocol for the patient. Mr. Watts' termination for his 'religious speech' evidences Defendants' intent to compel Mr. Watts to act contrary to his religious beliefs and constitutes a substantial burden on the exercise of his religious beliefs."

Judge Tjoflat dissenting argued that while Watts had adequately plead that his beliefs were sincere, he had not adequately plead that they were religious as opposed to philosophical or professional. The majority responded to this argument, saying that Supreme Court precedent indicates that Watts need only "plead that he believes his religion compels him to take the actions that resulted in his termination. He need not plead now, or present later, 'objective' evidence that his belief is of the type that a judge would generally consider to be religious in nature. Watts is not on the hook for our inability to understand his religious system." [Thanks to Joel L. Sogol via Religionlaw listserv for the lead.]

New British Law Could Impose Faith-Based Probation Programs

Britain's National Secular Society says that under the country's new Offender Management Act 2007, faith-based organizations will be among those that can be used to provide probation services in local communities in England and Wales. Under the new law, the National Offender Management Service (NOMS) can contract with private providers to offer service that can be made part of an offender's community service or release on license from prison. The public probation service will remain the only "lead provider" of services for the next three years, but after that, private providers, including faith-based ones, could be appointed as lead providers alone or as part of a consortium. Providers though will have to meet national standards, and offenders have an appeal to NOMS if they are unreasonably found in breach of their conditions of release.

NY Judge Orders Mosque Reopened While Dispute Is In Court

In Suffern, New York, a lawsuit has been filed in state court in an internal disagreement over finances and administration between factions in a local mosque. The board of Masjid Darul Ehsan had changed the locks on the mosque's doors, leading congregants to have to pray in the mosque's parking lot and in the village of Suffern's gazebo. After a hearing on Wednesday, Justice William Sherwood ordered the mosque be reopened for daily prayers under the leadership of Imam Mohammad Abdul Rehman Shah, who had been fired by the board earlier this month. However the order does not call for the mosque's summer school to be resumed. The lawsuit asks for an accounting of the mosque's income and expenditures, including the use that has been made of donations. The Lower Hudson Journal News yesterday reported on the developments, saying that another hearing in the case is scheduled for Sept. 14.

Court Rejects Mother's Demand For Christian Therapist In Custody Case

In Alameda County Social Service Agency v. K.H., (CA 1st Dist. Ct. App., Aug. 15, 2007), a California court of appeals rejected a mother's claim that her Free Exercise rights, as well as her statutory rights to "reasonable" reunification services, were infringed when a juvenile court failed to provide her with a Christian therapist after the mother's children were removed from her custody because of physical abuse. The court said: "Given mother’s varied and numerous objections to the referrals and her failure to attend her own appointments or to take her children to all of their appointments, the record supports a finding that this new request [for a Christian therapist] was nothing more than another tactic by mother to evade therapy...." The court said that her First Amendment argument "borders on the frivolous".