Convictions of Faith Healing Parents Upheld

In State of Oregon v. Beagley, (OR App., June 19, 2013), the Oregon Court of Appeals upheld the negligent homicide convictions of Jeffrey and Marci Beagley in the faith-healing death of their 16-year old son.  The Beagley's, members of the Followers of Christ Church that rejects medical care, prayed for their son rather than seeking medical attention for a congenital abnormality that led to kidney failure. (See prior posting.) The appeals court rejected defendants' arguments that the indictment did not state a crime; that the court's jury instructions were erroneous; and that the court erroneously denied their motion to exclude evidence regarding the faith-healing death of their granddaughter. The court held that defendants:

have presented us with no compelling reason now to conclude that parents do not have a legal obligation to provide needed life-sustaining medical care for their children, nor that parents' constitutional right freely to exercise their religion encompasses a right unreasonably to fail to meet that obligation.

County, In Change of Heart, Says Maum Meditation Center Qualifies As A Religious Institution

Under the Lake County, Illinois zoning ordinances, "religious institutions" are permitted to operate in areas zoned for "estates."  Yesterday's Lake Forester reports that the County Department of Planning, Building and Development has finally decided that Maum Meditation is a religion after initially taking the position that Maum Meditation House of Truth could not operate in a home donated to it by one of its followers because it did not meet the "elements of religion." The Department's change of heart comes two weeks after Maum Meditation filed a federal lawsuit seeking to have the court declare that Maum Meditation is a religion. The county says it changed its mind after it received information showing that Maum Meditation is part of an "emerging new religious movement" from the Far East.

Court Upholds Refusal To Allow Church To Run Religious Services In City Homeless Shelters

In Caractor v. City of New York Department of Homeless Services, (SD NY, June  14, 2013), a New York federal district court rejected free speech, free exercise and equal protection challenges by the head of the Discovered Being Ministry to New York's refusal to permit him to conduct Christian religious services inside city homeless shelters. The court concluded that homeless shelters are non-public forums and that "DHS’s decision to limit access to external organizations that either assist in providing shelter, aid shelter residents to find permanent housing, or provide services mandated or authorized by law -- a restriction which consequently excludes religious organizations -- is both reasonable and viewpoint
neutral."

Federal Agencies Issue Guidelines For Houses of Worship In Developing Emergency Plans

The Obama Administration yesterday, at a White House event hosted by Vice President Biden, released  a progress report on executive action taken to reduce gun violence. Among the items highlighted by the White House is a new Guide for Developing High-Quality Emergency Operations Plans for Houses of Worship. The 32-page Guide, developed by six federal agencies, provides information for houses of worship in developing an emergency operations plan to deal with violence, arson and natural disasters. Religion News Service focuses particularly on the Guide's recommendations on dealing with active shooter incidents.

Preliminary Injunction Allows Religious College To Exclude Certain Contraceptives From Student Health Plan, Pending Final Decision

As previously reported, a challenge to the Affordable Care Act contraceptive coverage mandate by religiously-sponsored Geneva College is pending in federal district court in Pennsylvania. Yesterday in Geneva College v. Sebelius, (WD PA, June 18, 2013) (opinion) (order), the court granted Geneva College a preliminary injunction pending a decision on the merits or a decision in a similar case by the 3rd Circuit or U.S. Supreme Court. The injunction allows the College to exclude from coverage in its student health insurance plan abortifacients to which it has religious objections. According to the Pittsburgh Tribune Review, Geneva College, which must choose a health plan by Thursday for the coming school year, would have opted for no insurance coverage for students instead of coverage that violates its religious tenets.

Judge's Religious Comments During Sentencing Are Not Reversible Error

In State of Wisconsin v. Betters, (WI App., June 18, 2013), a Wisconsin state appeals court rejected defendant's claim that a trial court had improperly relied on religious considerations in sentencing him to a longer term than was recommended by the pre-sentence report or requested by the state. In a plea agreement, Robert Betters plead guilty to repeated sexual assault of a child and possession of child pornography  growing out of charges that he had repeated sexual contact with his girl friend's two teenage sons. As described by the appeals court:

During sentencing, the [trial] court remarked that “every child is a gift from God,” and indicated Betters’s conduct toward the boys was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.”

The court of appeals concluded however:

Although the [trial] court used religious language, sparingly, during its analysis, Betters has failed to show that it is highly probable or reasonably certain his sentence was based on the court’s religious convictions. We stress again that the court’s invocations of a religious deity were ill-advised. However, not every “ill-advised word” will create reversible error.

AP reports on the Court of Appeals decision.

Suit Challenges NYPD's Muslim Surveillance Program

A federal lawsuit was filed yesterday challenging the constitutionality of the New York Police Department's surveillance program directed at Muslim religious and community leaders, organizations, businesses and at mosques.  The complaint (full text) in Raza v. City of New York, (ED NY, filed 6/18/2013), asserting free exercise, equal protection and establishment clause violations, summarizes the claims:

Since 2002, the New York City Police Department ("NYPD") has engaged in an unlawful policy and practice of religioius profiling and suspicionless surveillance of Muslim New Yorkers. This policy and practice has a false and unconstitutional premise: that Muslim religious beliefs and practices are a basis for law enforcement scrutiny.

The ACLU issued a press release announcing the filing of the lawsuit. A similar lawsuit was filed last year by different plaintiffs in a New Jersey federal district court.

Obama Sends Senate The Nomination of New Ambassador To Holy See

Yesterday President Obama sent to the United States Senate the nomination of Kenneth Francis Hackett to be U.S. Ambassador to the Vatican. (White House announcement.) As reported last week by Religion News Service, the nomination of Hackett, the former head of Catholic Relief Services, is not likely to be controversial.  The White House gave further information about Hackett last week when it announced its intent to nominate him. The U.S. ambassadorship to the Holy See has been vacant since last November when Miguel Diaz resigned to become University Professor of Faith and Culture at the University of Dayton.

Hearing Officer Says Christian Pregnancy Center Is Eligible In Government Loan Program

In a case on remand from a federal district court (see prior posting), a hearing officer in the Department of Agriculture's National Appeals Division held that the Department of Agriculture was wrong in denying a Christian pregnancy resource center eligibility for a direct loan under the agency's Community Facilities Loan Program.  In In re Care Net Pregnancy Center of Windham County, (Dept. Agr. Natl. App. Div., June 14, 2013), the hearing officer held that the loan denial because of voluntary Bible classes offered by Care Net to its clients violated the Department's rules properly construed:

These Department regulations do not prohibit Agency funding of Appellant’s Program loan since Appellant’s voluntary Bible classes do not impose an additional cost of facility construction or renovation (e.g., do not require the building of a chapel, sanctuary, church, worship center, or other building fixture principally used for inherently religious activities). If Appellant were to make its incidental and voluntary Bible classes mandatory or use coercion, or were to change its operations to become dominated by inherently religious activities and costs were imposed on secular activities, then a different analysis would result.

The hearing officer also held that the loan denial violates the Free Speech, Free Exercise and Equal Protection clauses of the U.S. Constitution, saying in part:

Agency would have found Appellant eligible for the Program loan so long as Appellant keeps religious speech out of the building or segregated to a separate room – a literal religious gerrymander. Adopting Agency’s approach would require any religious discussion, regardless of whether it were to be initiated by Appellant or its clients, to cease and for the participants of that discussion to pause, leave the facility or room, and travel elsewhere to reengage in the discussion. This effect is more than an incidental burden on a particular religious practice or belief: it is significant pressure, which will almost certainly cause clients to end prematurely or avoid any religious discussion altogether. Such a burden would facilitate a “chilling effect” on such discussion....

Alliance Defending Freedom issued a press release announcing the decision.

In Important Decision, New Hampshire Court Invalidates Tax Credit Scholarships To Sectarian Schools

In Duncan v. State of New Hampshire, (NH Super. Ct., June 17, 2013), a New Hampshire trial court judge in a precedent-setting 45-page opinion held that New Hampshire's Education Tax Credit program violates the state constitution's ban on compelling any person to support sectarian schools (Art. 6) and its "No Aid" clause (Art. 83), insofar as the state allows scholarship funds generated by the program to be used at religious schools. The court relied on a newly-enacted statutory amendment broadening taxpayer standing (RSA 491.22 I) to allow all the taxpayer plaintiffs in the suit to maintain the action.  Departing from interpretations of the federal and some other state constitutions, the court also held that even though the state constitution's "No Aid" clause refers to expenditure of "money raised by taxation," it also applies to funds contributed to scholarship organizations for which businesses receive a tax credit.  The court said:

Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students....

[Articles 6 and 83] broadly obstruct, or bar, the provision of, or diversion of, "public funds." or tax monies, to financially aid "the schools of a religious sect or denomination."

The court held, however, that the program of scholarships funded by contributions for which businesses received tax credits may continue so long as scholarships are awarded only for attendance at non-religious schools. The Cato Institute reports at length on the decision. (See prior related posting.)

Christian Church Leaders In Ireland Held In Contempt In Church's Financial Woes

The press in Ireland reports on the financial woes of Victory Christian Fellowship, a church which, according to the Sunday World, took 10% of its followers' income by preaching "the more money you give the more blessings you get." As reported yesterday by The Independent, the church lost its tax exempt status for engaging in excessive commercial activity.  This in turn led the Bank of Scotland to call in unpaid loans of 18 million Euros. When the bank sent in receivers to take possession of the church's three prime properties, they were blocked by church staff and congregation members. Friday's Kildare Nationalist reports that this led the court to hold three trustees of the church in contempt. To avoid jail, the trustees agreed to facilitate a peaceful handover of the church's three Dublin properties to the bank's receivers last Friday afternoon.

Egyptian Courts Continue To Convict for Insulting Religion

Courts in Egypt apparently continue to vigorously enforce Egyptian laws barring contempt of religion, reflecting Article 44 of Egypt's Constitution which provides: "Insult or abuse of all religious messengers and prophets shall be prohibited."

On June 11 in Luxor, the Misdemeanor Court fined a Coptic Christian elementary school teacher EGP 100,000 ($14,000 US) for insulting Islam. According to Egypt Daily News, parents of three students complained that 24-year old Demiana Abdel Nour told students that the late Pope Shenouda III performed more miracles than the Prophet Muhammad, and that the teacher also placed her hand on her stomach to convey nausea when mentioning Muhammad. A number of students though said that no such attacks on religion had taken place.

Meanwhile, on June 16, a Misdemeanor Court in Nasr City convicted conservative Islamic preacher and TV channel owner Abu Islam (Ahmed Abdallah) of tearing up a Christian Bible in a demonstration outside the U.S. embassy last September and for saying on a TV program that 90% of the women protesters in Tahrir Square were Christians who came there "half naked" in order to get sexually harassed. According to Egypt Daily News, he was sentenced to 5 years for tearing the Bible, 3 years for insulting religion, and an additional 3 years for disturbing public peace. He was also fined EGP 3,000 ($425 US). Abu Islam's son was sentenced to 8 years in prison and a fine of EGP 2,000 for participating in the demonstration. The sentences will be suspended pending appeal.

Recent Articles of Interest and Call For Papers

From SSRN:

• Vivian Grosswald Curran, Book Review: Gilles Cuniberti, Grands Systèmes De Droit Contemporains (2d ed., L.G.D.J., 2011), (American Journal of Comparative Law, Vol. 61, p. 721, 2013).
• Lucia Ann Silecchia, On 'Unease' and 'Idealism': Reflections on Pope Benedict XVI's Educating Young People in Justice and Peace and Its Message for Law Teachers, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 27, No. 2, 2013).
• Elizaeth Sepper, Doctoring Discrimination in the Same-Sex Marriage Debates, (Indiana Law Journal, Forthcoming 2014).
• Alan D. Miller & Ronen Perry, A Group's a Group, No Matter How Small: An Economic Analysis of Defamation, (Washington and Lee Law Review, Vol. 70, 2013).
• Amanda Reid, Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause, (Nebraska Law Review, Vol. 92, p. 501-561, 2013).

From SmartCILP amd elsewhere:

• Deepa Das Acevedo, Secularism in the Indian Context, (38 Law & Social Inquiry 138-167 (2013)).
• Anthony V. Alfieri, Community Education and Access to Justice in a Time of Scarcity: Notes from the West Grove Trolley Garage Case, (2013 Wisconsin Law Review 121-143).
• Brooke Goldstein & Benjamin Ryberg. The Emerging Face of Lawfare: Legal Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing, (36 Fordham International Law Journal 634-656 (2013)).
• Abraham M. Lackman, The Collapse of Catholic School Enrollment: The Unintended Consequence of the Charter School Movement, 6 Albany Government Law Review 1-20 (2013).
• Clark B. Lombardi, Constitutional Provisions Making Sharia "A" or "The" Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, [Abstract], (28 American University International Law Review 733-774 (2013)).
• C.M.A. McCauliff, Dreyfus, Laicite and the Burqa, (28 Connecticut Journal of International Law 117-151 (2012)).
• SpearIt, Raza Islamica: Prisons, Hip Hop & Converting Converts, (22 Berkeley La Raza L.J. 175-201 (2012).)
• Seventh Annual John F. Scarpa Conference on Law, Politics, and Culture: Living the Catholic Faith in Public Life. Articles by Abp. Charles J. Chaput, Helen Alvare, Patrick McKinley Brennan and Michael J. White. [Abstract]. 58 Villanova Law Review 371-470 (2013).
• Symposium:  Law, Religion, and Lautsi v. Italy. Maine Law Review, Vol. 65, No. 2 (2013).

Call For Papers:

• Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program: “Cooperating With Evil, Complicity with Sin.”

New York Court Lifts Kirpan Ban After Sikh Groups Resolve Dispute

Sikh Wire reports that on Friday, a New York state trial court judge lifted the ban he had imposed in May 2010 on the carrying ban of the kirpan, the ceremonial dagger, inside the Gurdwara in Rochester (NY). The ban was originally imposed because of a dispute between two Sikh groups. Later the ban was liberalized so that clergy could carry kirpans. According to Sikh Wire:

After protests by Sikhs in the US and elsewhere against the ban on their religious right to wear the kirpan, the Akal Takht – the supreme spiritual institution of the Sikhs in Amritsar – appointed a seven-member committee in the US to get the kirpan ban removed, and help the two warring parties at the gurdwara resolve differences.

Recent Prisoner Free Exercise Cases

In Mansfield v. Missouri Department of Corrections, (8th Cir., June 10, 2013), the 8th Circuit held that prison official's compelling interest in security justified their denial of group worship services for members of the Christian Separatist Church Society.

In Small v. Wetzel, (3d Cir., June 11, 2013), the 3rd Circuit upheld a district court's dismissal of Muslim inmates' complaints about a strip search with female prison staff present and one inmate's complaint about the requirement to sign Guidelines in order to participate in the Ramadan fasting program. However the court did permit plaintiff to proceed  with an equal protection claim for nominal damages based on the prison not requiring Jewish prisoners to sign similar Guidelines to participate in their holy day observances.

In Laurensau v. Romarowics, (3rd Cir., June 13, 2013), the 3rd Circuit upheld removal of an inmate from the kosher diet program because he failed to show a sincerely held religious belief.

In Bucano v. Sibum, 2013 U.S. Dist. LEXIS 79514 (MD PA, June 6, 2013), a Pennsylvania federal district court agreed with a federal magistrate judge's recommendation (2012 U.S. Dist. LEXIS 188330, Dec. 27, 2012) to dismiss without prejudice the claim by two inmates that being forced to eatnon-Kosher  food, being prohibited from being in the same cell, and being called "fake Jews" by a corrections officer violated their free exercise rights.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 81198 (SD GA, June 10, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 81416, May 9, 2013) and dismissed a complaint by a Hindu inmate who sought a vegan diet that he is unable to participate in the alternative entree meal plan.

In Chesser v. Rivas, 2013 U.S. Dist. LEXIS 82223 (SD IL, June 11, 2013), an Illinois federal district court allowed a Muslim inmate at a special federal high security unit to move ahead with religious freedom and other challenges to the ban on Arabic, the ban on shortened pants, imposing participation in receiving special food on non-Muslim holidays, denial of Halal meals for Islamic holidays, failure to provide an imam, and failure to provide food for breaking of religious fasts.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 82347 (D ME, June 12, 2013), a Maine federal district court dismissed for failure to exhaust administrative remedies a Protestant inmate's complaint that inmates in protective custody may not attend group religious services outside the unit. as well as complaints about other limitations on practicing his religion.

In United States v. Bowman, 2013 U.S. Dist. LEXIS 82652 (WD NC, June 12, 2013), a North Carolina federal district court granted an inmate's motion that both the court and the Bureau of Prisons recognize his newly adopted Islamic name, but only along with the name under which he was committed.

In Allen v. Virga, 2013 U.S. Dist. LEXIS 82825 (ED CA, June 11, 2013) a California federal magistrate judge permitted an inmate who is an adherent of the House of Yahweh Yahdaim who sought kosher meals which he had been denied because he is not Jewish to proceed on his claim for damages. Plaintiff was also granted leave to file an amended complaint setting out a RLUIPA claim.

In United States v. Zielinski, 2013 U.S. Dist. LEXIS 81510 (ND NY, June 11, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 82014, May 15, 2013) and revoked defendant's supervised release program because of his failure to participate in parts of it. The court concluded that the sex offender program did not burden a religious exercise, finding that "Objectivism" is not a religion.

In Maxwell v. Clarke, 2013 U.S. Dist. LEXIS 83461 (WD VA, June 13, 2013), a Virginia federal district court dismissed claims by a Rastafarian inmate that his rights under the 1st and 14th Amendments and RLUIPA were infringed when he was confined to segregation without permission to attend religious services for refusing to cut his hair as required by the prison's grooming policy.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 82542 (SD OH, June 12, 2013), an Ohio federal district court dismissed an inmate's religious accommodation claim, finding that the claim for injunctive relief is moot since he was released from prison. It also held he cannot recover damages under RLUIPA from state employees in their personal capacities.

Judge Jones Misconduct Complaint Transferred To DC Circuit

As previously reported, on June 4 a misconduct complaint was filed against Judge Edith Jones, based in part on comments she made regarding a religious justification for capital punishment. Now, as reported yesterday by the New Orleans Advance, it appears that the complaint has been transferred from the Judicial Council of the 5th Circuit to the Judicial Council of the D.C. Circuit. On June 12, a Notice was posted on the U.S. 5th circuit Court of Appeals website indicating that a judicial conduct proceeding had been transferred. The Notice linked to a June 12 letter from U.S. Chief Justice John Roberts authorizing the transfer, and indicating that he had received a request on June 7 from the 5th Circuit for the transfer. The Judicial Conference Rules (full text) set out the basis for transfers.

UPDATE: On Thursday, Alliance for Justice submitted a letter (full text) in support of the misconduct complaint to the chief judge of the D.C. Circuit. It says that there is a long pattern of prejudicial statements and actions by Judge Jones, including her repeatedly speaking of the primacy of religion above law.

Jewish Prisoner Wants Permission To Be Circumcised

Prison authorities in Florida are facing an unusual religious accommodation question.  WEAR News yesterday reported that inmate Pablo Diaz, whose mother was Jewish and who has been active in the Jewish prison ministry at Blackwater River Correctional Facility, is requesting to be allowed to be circumcised. He directed his request to the state corrections department after similar previous request was turned down by the warden. The 37-year old Diaz is serving a life sentence for kidnapping, aggravated battery with a deadly weapon and manslaughter. The non-profit group Brit Yosef Yitzchak has offered to perform the religious circumcision free of charge.

Suit Claims Discriminatory Treatment In Censorship of Atheist Materials Handed Out In Schools

As previously reported, last month the Central Florida Freethought Community made materials on Atheism available to students in eleven Orange County, Florida high schools.  This was permitted in order to allow them the same privilege as was given to World Changers of Florida which handed out Bibles in the schools in February. Now, however, the free thought group's parent body (FFRF) has filed a lawsuit claiming that their literature faced censorship while World Changers did not.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Orange County School Board, (MD FL, filed 6/13/2013), charges that school officials allowed FFRF to distribute only 11 of 20 of the books and pamphlets it submitted. The others were prohibited as age inappropriate or because they would create substantial disruption.  In particular one publication was disallowed because its claim that Jesus was not crucified or resurrected made it age inappropriate, even though the Bibles distributed expresses an opposite viewpoint on the same issue. The suit claims unconstitutional viewpoint discrimination, prior restraint and violation of the equal protection clause. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

House Hearing Is Critical of US Implementation of International Religious Freedom Act

Yesterday, the Subcommittee on National Security of the U.S. House Oversight & Government Reform Committee held a hearing titled "Examining the Government’s Record on Implementing the International Religious Freedom Act." A video of the hearing and transcripts of all the witnesses' prepared statements are available on the Committee's website.  The hearing began with a kerfuffle over the State Department's refusal to make Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook available to testify because of the Committee's insistence that all witnesses testify on a single panel.  State Department policy does not permit executive branch officials to testify on panels with non-government witnesses.  Four witnesses did testify-- USCIRF Chair Katrina Lantos Swett; director of Georgetown's Religious Freedom Project, Thomas F. Farr; Chris Seiple, President of Institute for Global Engagement; and Amjad Mahmood Khan, National Director of Public Affairs of the Ahmadiyya Muslim Community USA.

In her testimony, USCIRF Chair Swett said in part:

Unfortunately, neither Republican nor Democratic Administrations have fully utilized IRFA as the key foreign policy tool it was intended to be. Neither have designated CPCs in a timely manner nor issued specific Presidential actions based on these designations.

Mr. Farr in his testimony also criticized U.S. action:

Notwithstanding the hard, creative work of the State Department’s Office of International Religious Freedom, it would be difficult to name a single country in the world over the past fifteen years where American religious freedom policy has helped to reduce religious persecution or to increase religious freedom in any substantial or sustained way.

French Appeals Court Upholds Order Requiring Twitter To Disclose Names of Anti-Semitic Tweeters

According to CNet News and JTA, in France yesterday the Paris Court of Appeal upheld a lower court order requiring Twitter to turn over to the Union of Jewish French Students (UEJF) and four human rights groups that brought suit the names of individuals who last October posted Tweets using anti-Semitic hashtags. The hashtags were used in a kind of competition of anti-Semitic jokes. Twitter, which has already removed the Tweets, argued that as an American company, it should be protected by the First Amendment. The full text of Wednesday's opinion in Association L'Union des Etudiants Juifs de France (UEJF) v. Societe Twitter Inc., (Paris Ct. App., June 12, 2013) is available online in French.