Recent Articles of Interest

From SSRN:

• Muhammad Munir, Some Reflections on the Story of Banu Quraydha: A Re-Evaluation, (May 1, 2014).
• Akiva A. Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology, (April 30, 2014).
• Douglas Laycock, Imaginary Contradictions: A Reply to Professor Oleske, (67 Vand. L. Rev. En Banc 89 (2014)).
• Robert J. Delahunty, Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-19, 2014).
• Helen M. Alvare, A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor, (George Mason Law & Economics Research Paper No. 14-14, 2014).
• Meghan J. Ryan, Finality and Rehabilitation, (4 Wake Forest J.L. & Pol'y 121 (2014)).
• Patrick McKinley Brennan, Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition, (Villanova Law/Public Policy Research Paper No. 2014-1008, 2014).
• Linda C. McClain, Common and Uncommon Families and the American Constitutional Order, (67 Vanderbilt Law Review En Banc 19 (2014)).
• Patrick Parkinson & Nicholas Aroney, The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case, (May 9, 2014).
• Jerg Gutmann & Stefan Voigt, The Rule of Law and Constitutionalism in Muslim Countries, (May 8, 2014).
• Amy L. Moore, Rife with Latent Power: Exploring the Reach of the IRS to Determine Tax-Exempt Status According to Public Policy Rationale in an Era of Judicial Deference, (South Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Drew Stevens, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 Emory Law Journal 979 (2014).
• Mark Goldfeder, Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality, [Abstract], 20 Animal Law 107-118 (2013).
• Mark L. Rienzi, The Case for Religious Exemptions--Whether Religion Is Special Or Not (Reviewing: Brian Leiter, Why Tolerate Religion?; Andrew Koppelman, Defending American Religious Neutrality), 127 Harvard Law Review 1395-1418 (2014).
• Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age. Articles by Alycee Lane, Bruce Ledewitz, Aaron R. Petty, Mark Strasser and Harry F. Tepker. 6 Elon Law Review 1-187 (2014).

Activist Wants To Offer Satanist Prayer In Florida After Town of Greece Decision

Just days after the U.S. Supreme Court's ruling upholding sectarian prayer at city council meetings (see prior posting), Deerfield Beach, Florida activist Chaz Stevens has written to request the Deerfield Beach City Commission and the Florida state Senate each to allow him to open one of their sessions with a Satanist prayer. Raw Story reported on developments on Friday.  Last year Stevens used the state's neutral display policy to set up an 8-foot-tall Festivus pole made of Pabst Blue Ribbon beer cans near a nativity display in the state Capitol. (See prior posting.) He said  that he recently converted from "Pabstfestidian" because "Satan is a cool dude." He added: "I just want equal billing. We allow various religious nutjobs to give a prayer. They pray to Jesus who is make-believe, god who is make-believe, why not Satan who is make-believe?"

Chinese Authorities Demolish Christian Church In Controversial Move

The Los Angeles Times reported last week on the complicated questions surrounding China's demolition last month of the Three Rivers (Sanjiang) Church in the southeastern Chinese city of Wenzhou. The $4 million church building was completed last year (background). According to the Times, the recently appointed provincial party secretary was offended by the building's size and the large cross on its spire. The paper reports:

Five local bureaucrats have been singled out for punishment, charged with failing to stop construction of a church they knew was to be much larger than building permits allowed.

Authorities say the church is just one of many illegal structures ensnared in their "Rectify Three, Demolish One" campaign intended to halt rampant violation of building regulations; signs in Wenzhou tout the campaign as a move to "make space for development."

Many local Christians, though, think the campaign aims to crack down on the churches that have proliferated in Wenzhou since the 1980s. Many members of the city's business class have flocked to the religion and funded the construction of increasingly elaborate houses of worship, in the process earning the city the moniker "China's Jerusalem."

Recent Prisoner Free Exercise Cases

In DePaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 61165 (WD VA, May 2, 2014), a Virginia federal district court dismissed a claim by a Nation of Islam inmate that subjecting him to a TB screening test violates his RLUIPA rights, and remanded to a magistrate plaintiff's claim that he was denied a diet that complies with his religious beliefs.

In Brames v. Hodge, 2014 U.S. Dist. LEXIS 61591 (SD IL, May 5, 2014), an Illinois federal district court allowed a Hebrew Israelite inmate to proceed with his complaint that the prison chaplain refused to allow him to attend Jewish services and celebrations and be placed on a kosher diet, that the prison physician refused to certify him for a no-bean kosher diet, and that various defendants ignored his grievances on these matters.

In Davis v. Doe, 2014 U.S. Dist. LEXIS 63437 (MD NC, May 8, 2014), a North Carolina federal magistrate judge recommended dismissal of an inmate's claim that his free exercise rights were infringed by a policy, of which he had not been informed, that prohibited him from using the rest room during a religious service.

In Ajala v. West, 2014 U.S. Dist. LEXIS 63544 (WD WI, May 8, 2014), a Wisconsin federal district court permitted a Muslim inmate to proceed with complaints that he was denied a halal diet, but dismissed for failure to exhaust administrative remedies a claim that he was required to sign a statement that a vegan/vegetarian diet satisfied his religious needs.

In Watkins v. Fox, 2014 U.S. Dist. LEXIS 64294 (ND FL, May 9, 2014), a Florida federal district court adopted a magistrate's recommendations and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was denied the use of prayer oils. The court also dismissed a prison chaplain as a defendant.

NYPD Asks Arrested Muslims To Become Anti-Terrorism Informants

In a front page article, today's New York Times reports that a special New York Police Department detective squad-- the Citywide Debriefing Team-- is regularly recruiting Muslims arrested on minor charges to become informants for the Department's anti-terrorism Intelligence Division. The Times describes the experience of several men:

Waiting in a New York station house cell or a lockup facility, expecting to be arraigned, only to be pulled aside and questioned by detectives. The queries were not about the charges against them, but about where they went to mosque and what their prayer habits were. Eventually, the detectives got to the point: Would they work for the police, eavesdropping in Muslim cafes and restaurants, or in mosques?

These revelations come less than a month after a lawsuit was filed in New York claiming that the FBI uses the No Fly List to coerce American Muslims to become informants. (See prior posting.)

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Massachusetts Supreme Court Upholds Daily Voluntary Recitation of Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Sup. Jud. Ct., May 9, 2014), the Massachusetts Supreme Judicial Court rejected claims by school children and their parents who are atheists and humanists that the voluntary daily recitation of the Pledge of Allegiance-- including the phrase "under God"-- violates the equality provisions (Art. 106) of the Massachusetts state Constitution and 76 MGL Sec. 5 that prohibits discrimination in public education. The Court said in part:

The plaintiffs do not appear to be claiming that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge.... [T]here is nothing empirical or even anecdotal in the summary judgment record to support a claim that the children actually have been treated or perceived by others as "outsiders," "second-class citizens," or "unpatriotic."

The plaintiffs' claim of stigma is more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.

Justice Lenk filed a brief concurring opinion, stating in part:

[O]ur holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

Boston Globe reports on the decision. [Thanks to How Appealing for the lead.]

Episcopal Church Wins Lawsuit Over San Joaquin Diocese Property

A California state trial court this week released a Tentative and Proposed Statement of Decision giving a victory to The Episcopal Church (TEC) in its property-ownership dispute with the break-away Diocese of San Joaquin. The decision comes after a trial. (In an earlier decision the court concluded that there was not evidence that would allow adjudication on summary judgment.) In Diocese of San Joaquin v. Schofield, (CA Super. Ct., May 5, 2014), the court held that the purported transfer of property to the Anglican Diocese Holding Corporation, affiliated with the Province of the Southern Cone instead of TEC, was invalid because the transfers were made by Bishop John David Schofield after he was removed as an Episcopal bishop by TEC. It went on to hold that the Diocese could not "leave" the Church because it is a geographical construct of the Church. The Church's governing documents "make clear that a local parish owns local church property in trust for the greater church and may use that property only so long as the local church remains part of the greater church." Anglican Curmudgeon blog comments on the ruling from the perspective of the break-away Diocese.

New Washington State Supreme Court Justice Has Extensive Religious Background

Washington state Governor Jay Inslee announced last week that he has appointed state trial court judge Mary Yu to the Washington state Supreme Court to fill a vacancy created by the retirement of Justice Jim Johnson.  While the media (Seattle Times article) has focused on the fact that Yu is the first openly gay, and first Asian-American justice on the Washington Supreme Court, less attention has been given to her academic training in theology and her work experience prior to law school in the Catholic Church. Yu received a bachelor's degree in religious studies from Dominican University in River Forest, Ill., in 1979.  She then went to work for the Office of Peace and Justice of the Chicago Catholic Archdiocese, eventually becoming director of the office.  She received a master's degree in theology from Loyola University in 1989, and moved to Washington state to work at the Washington state Catholic Bishop's Conference. However in 1990 she enrolled in Notre Dame law school, also working as an assistant rector in an undergraduate women's dormitory. (Biography from Wikipedia, Equal Justice Newsletter).

D.C. Circuit Hears Oral Arguments On Non-Profit Contraceptive Coverage Mandate Rules

Yesterday the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Priests for Life v. Department of Health and Human Services and in Roman Catholic Archbishop of Washington v. Sebelius. (Audio of oral arguments [mp3 file]).  Both cases were brought by religious non-profits challenging the Obama administration's compromise rules that allow religious non-profits to opt out of the Affordable Care Act contraceptive coverage mandate and have their employees receive coverage directly from the non-profit's insurer or third-party administrator.  In Priests for Life, the district court found no substantial burden was imposed by requiring the group to complete the self-certification opt out form. (See prior posting.) In the Archbishop of Washington case, the district court upheld the challenge to the compromise as to one of the plaintiffs that offered a self-insured plan, but not for the others who offered group insurance or church plans. (See prior posting). Los Angeles Times reports on the oral arguments.

Gaddy, Head of Interfaith Alliance, Will Retire

In a press release yesterday, the Interfaith Alliance announced that after 16 years as its president, Rev. Dr. C. Welton Gaddy will step down as head of the advocacy organization at the end of 2014. The Interfaith Alliance has been a progressive advocate for religious freedom, individual rights, church-state separation and religious-cultural diversity.

Texas Court Dismisses As Moot Cheerleaders' Suit Over Religious Banners

In Kountze Independent School District v. Matthews, (TX App., May, 8, 2014), a Texas state appellate court dismissed as moot a once widely followed  suit brought by parents of high school cheerleaders.  Plaintiffs objected to a school policy change in 2012 that barred football cheerleaders from using run-through banners carrying religious messages.  The school's ban was put in place in September 2012 in response to a letter from the Freedom From Religion Foundation. Cheerleaders' parents sued, and in October 2012 a trial court issued a temporary injunction permitting cheerleaders to continue to use their own religious-themed run throughs. (See prior posting.) In response to that decision, the school district in April 2013 reversed itself and adopted a new policy again permitting religious messages on run-through banners. In May 2013, the trial court issued a declaratory judgment that neither the Establishment Clause nor any other law prohibits the religious-themed banners at school sporting events. (See prior posting.) Neither party appealed the declaratory judgement, but this left the action seeking a permanent injunction still pending. The school district appealed, arguing that the suit should be dismissed as moot. The court agreed, concluding that the school had adopted a new policy that eliminated any live controversy between the parties.  Courthouse News Service reports on the decision.

Two Op-Eds on Town of Greece Decision

Here are two rather interesting op-ed pieces (on opposite sides) on the Supreme Court's recent Town of Greece decision:

• George Will, Thin Skins and Legislative Prayer (Washington Post)
• Katherine Stewart, A Big Win for the Prayer Lobby (New York Times)

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

In Pakistan, Human Rights Lawyer Murdered For Defending Client Accused of Blasphemy

In Pakistan's southern city of Multan yesterday, gunmen posing as clients shot and killed human rights lawyer Rashid Rehman for representing a defendant accused of blasphemy.  Reuters reports that Rehman was representing Junaid Hafeez, a lecturer in English, who has been in jail after being accused by student groups of making blasphemous remarks against the Prophet Mohammed. During court proceedings last month, three people threatened Rehman with death.  Pamphlets distributed in Multan this morning said that the lawyer had met his "rightful end" for attempting to "save someone who disrespected the Prophet Mohammed". The pamphlet added: "We warn all lawyers to be afraid of god and think twice before engaging in such acts." This is apparently the first time that a lawyer has been killed in Pakistan for taking on a blasphemy case, though defendants have often been killed before trial and attacks have previously been carried out on judges and supportive politicians.

Saudi Online Liberal Religious Activist Gets Increased Sentence On Retrial

Reuters and International Business Times report that yesterday Saudi Arabian online activist Raif Badawi was sentenced to 1000 lashes, ten years in prison and a fine equivalent to $266.600 (US) in his retrial on charges of "setting up a website that undermines general security " and "ridiculing Islamic religious figures".  Badawi is the co-founder of the Saudi Arabian Liberals website, set up to discuss liberal interpretations of Islam and political matters.  Originally he was sentenced to 7 years in prison and 600 lashes (see prior posting), but the sentence was overturned on appeal by Badawi's lawyers who argued that the sentence was too harsh.  The criminal court in the city of Jeddah however has now imposed an even harsher sentence. The prosecution's attempt to charge Badawi with apostasy (punishable by death) was dismissed in last year's original trial.

Trinity Western Will Sue Two Canadian Lawyers' Groups

Canada's Trinity Western University announced Tuesday that it has engaged law firms to bring suits challenging decisions by the Law Society of Upper Canada and the Nova Scotia Barristers Society that will prevent Trinity Western law school graduates from being admitted to the bar in Ontario or Nova Scotia. Trinity Western is located in British Columbia.  (See prior posting.) The University will also seek to intervene as a respondent in a lawsuit brought by an openly gay member of the Vancouver Park Board challenging the approval of the school by British Columbia's Advanced Education Minister. (See prior posting.)

At issue is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  Trinity Western's new law school-- the first at a faith-based university in Canada-- is scheduled to open in 2016. Trinity Western says that actions rejecting its law school graduates send the message that one cannot fully participate in society if one holds religious values. Tuesday's Globe & Mail also reports on Trinity Western's decisions.

Student Seeks Contempt Penalties For School's Violation of Consent Decree On Prayer

As previously reported, last year the Rankin County, Mississippi school district adopted a new policy on religion in schools in order to settle a suit by a student complaining that the district high school sponsored assemblies which promoted Christianity, and which students perceived as mandatory. The new policy was incorporated into a court-ordered consent decree. Now AP reports that the student, backed by the American Humanist Association (press release), has filed a motion to hold the school district and its administrators in contempt because of a district-wide honors assembly last month which was opened with an invocation by a Methodist minister. The student says that she felt pressured to participate in the prayer which she interpreted as containing a reference to Jesus' resurrection. (Full text of Memorandum of Law in support of contempt motion).

Yakima Tribe Denied TRO To Prevent Wildflower Tours On Spiritual Area

In Washington state, a federal district judge has denied a temporary restraining order sought by the Yakima Nation to prevent scheduled wildflower tours this Thursday and Saturday on Rattlesnake Mountain.  The mountain is a cultural and spiritual area for the Yakimas.  As reported by the Tri-City Herald, the court, in a written decision, said in part:

Though the tribe certainly has a strong interest in preservation of its culture and spiritual interest, the public also has an interest in being allowed to see and experience the land, as long as precautions are taken to preserve the nature of the place.

UPDATE: The full opinion in  Confederated Tribes & Bands of the Yakama Nation v. United States Fish & Wildlife Service, 2014 U.S. Dist. LEXIS 63824 (ED WA, May 5, 2014) is now available via Lexis.

District Court Vacates Preliminary Injunction Against Maryland County After Town of Greece Decision; Plaintiffs Will Go On

Within hours after Monday's U.S. Supreme Court decision in Town of Greece permitting sectarian invocations at city council meetings, a Maryland federal district court vacated a preliminary injunction it had issued (see prior posting) barring a Maryland county from opening its Commission meetings with sectarian prayers.  The Order (full text) in Hake v. Carroll County, Maryland, (D MD, May 5, 2014), merely recites that its action is "consistent with" the Supreme Court's decision.  In Carroll County, invocations were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commission had guidelines urging non-sectarian language, but they were often ignored. The Baltimore Sun reports that plaintiffs, pointing to these differences, say they will continue to pursue the Carroll County challenge. The American Humanist Association, one of the plaintiffs, says: "Unlike in the town of Greece, where even an atheist could give an invocation, in this case you have a very exclusive policy."