On Religion and Apartheid-- As World Mourns Nelson Mandela

In South Africa, former president Nelson Mandela died today.  The New York Times chronicles his life in an article titled Nelson Mandela, South Africa’s Liberator as Prisoner and President, Dies at 95.  His death is an appropriate time to look back on the historical role of religion and religious groups in South Africa during the Apartheid era. The following are particularly rich sources for exploring the issue:

In 1998, the University of Cape Town's Research Institute on Christianity In South Africa prepared a report for the Truth and Reconciliation Commission titled Faith Communities and Apartheid:
Chapter 1: Why faith community hearings?
Chapter 2: Faith Communities
Chapter 3: An account of the submissions
Chapter 4: The Road to Reconciliation
Chapter 5: Reflections on the process and recommendations for the future
Chapter 6: Conclusion

TRC Faith Community Hearings: Submissions Received

The post-apartheid government's Truth and Reconciliation Commission issued its Report which it presented to President Nelson Mandela in October 1998:

• Truth and Reconciliation Commission of South Africa Report- Volume 4 (Chapter 3 on Faith Communities is at pp. 59-92). 

The Truth and Reconciliation Commission made the following findings in Volume 5 of its report, at pp. 251-52:

Faith communities

The Commission finds that Christianity, as the dominant religion in South Africa, promoted the ideology of Apartheid in a range of different ways that included Biblical and theological teaching in support of Apartheid; ecclesiastical Apartheid by appointing ministers to congregations based on race, and the payment of unequal stipends; a failure to support dissident clergy who found themselves in confrontation with the state; and a failure to provide economic support to those most severely affected by Apartheid. 

The failure of religious communities to give adequate expression to the ethical teaching of their respective traditions, all of which stand in direct contradiction to Apartheid, contributed to a climate within which Apartheid was able to survive. The failure of the churches in this regard contributed to the perpetuation of the myth, prevalent in certain circles, that Apartheid was both a moral and Christian initiative in a hostile and ungodly world.

Chaplains provided by the churches to serve the military, the police and other uniformed services, wore the uniforms of these services, enjoyed the rank of armed personnel, and some carried sidearms.  They were part of the illegal cross-border activities carried out by the military, and they accompanied troops into the townships and other internal situations of conflict on occasion.  The were seen to be supportive of the offensive structures of the former state.  Churches must therefore accept moral accountability for providing religious sanction and theological legitimisation for many actions of the armed forces.

It is the finding of the Commission that religious proselytising and religious-based nationalism have not only sown the seeds of inter-religious suspicion, distrust and strife, but they have also contributed directly to religiously inspired conflict.  Religious communities must take responsibility for the actions of their followers in this regard.

District Court Issues Preliminary Injunction To Await SCOTUS Contraceptive Mandate Decision

In Randy Reed Automotive Inc. v. Sebelius, (WD MO, Dec. 3, 2013), a Missouri federal district court, with agreement of both parties, issued a preliminary injunction in a small business RFRA challenge to the Affordable Care Act contraceptive coverage mandate.  The injunction is effective until 30 days after the U.S. Supreme Court issues its ruling in the Hobby Lobby and Conestoga cases in which it recently granted certiorari to decide similar challenges. The complaint (full text) in Randy Reed Automotive, a challenge by several Missouri automotive dealerships and their Christian owner, was originally filed on Oct. 18, 2013. Kansas City Business Journal reports on the district court's ruling.

Preliminary Injunction Denied In Challenge To Elementary School Graduation At Christian College

A South Carolina federal district court on Tuesday denied a preliminary injunction in American Humanist Association v. Greenville County School District.  The lawsuit challenges on Establishment Clause grounds the practice of holding graduation for a Taylors, South Carolina elementary school in the chapel of North Greenville University, a Christian college.  (See prior posting.) The ruling came in response to a motion to bar the Greenville school district, pending final resolution of the case, from permitting prayers as part of any school-sponsored event, including graduation ceremonies, and from holding school-sponsored events in churches, chapels and other places of worship. The State reported on the judge's ruling from the bench:

Senior U.S. District Judge G. Ross Anderson Jr., at a court hearing, said the American Humanist Association’s allegations against the Greenville County school district lacked proof and were "making a mountain out of a mole hill."

The judge also told an attorney for the association that "with all due respect and apologies" he had never heard of the Washington, D.C.-based nonprofit, founded in 1941.

Anderson called the association’s charges against the school district bold "and disturbing."

2013 Capitol Christmas Tree Lit In Ceremony

On Tuesday, House Speaker John Boehner hosted the ceremony to light the 88-foot tall 2013 Capitol Christmas Tree. As reported on the U.S. Department of Agriculture blog, this year's tree was harvested from Colville National Forest in Washington state and is decorated with fish-shaped ornaments, birds and stars made by people in Washington state designed to reflect the 2013 theme, "Sharing Washington’s Good Nature." AP reports on the ceremony:

House Speaker John Boehner flipped the switch that lit the Capitol Christmas Tree, helped by the six-year-old son of an Iraq war veteran.

Washington Congressman Jim McDermott said Christmas is about a "child that came into the world and changed the world." He added, "I hope this tree will remind us of Jesus' call to feed the hungry, to welcome the stranger, to clothe the naked and to take care of the sick."

The U.S. Marine Band played "O Come all ye Faithful," ''Joy to the World," ''O Holy Night" and other Christmas hymns.

Egypt's New Draft Constitution Heading Toward Referendum, Including Provisions On Religion

Egypt's Daily News reports that yesterday, the Chairman of the Committee of 50 that has been drafting a new Egyptian constitution transmitted its final draft to interim President Adly Mansour. The Jerusalem Post reports that President Mansour is expected to approve the draft and call for a referendum on it to be held in January. The full text of the draft constitution has been published in Arabic, however it does not appear that an English translation of the full document is yet publicly available.  Egypt Source however has published an extensive analysis of the document (Part 1, Part 2) written by Mai El-Sadany, a law student at Georgetown University. Part 1 includes an analysis of the treatment of religion in the new document.  Here are some edited excerpts, but the full analysis is well worth reading:

In the current Constitutional draft, Article 2 remains as is, both defining Islam as the religion of the state and stating that the principles of Sharia are “the primary source of legislation.” Article 219 of the 2012 Constitution [defining the term "principles of Sharia] has been completely removed....  Article 3 ... states that Jewish and Christian law will govern the affairs of Jewish and Christian Egyptians in issues of personal status, religious matters, and the selection of spiritual leadership. Finally, Article 7 discussing the role of Al-Azhar, defines it as the “primary reference for the religious sciences and Islamic matters,” and emphasizes the independence of its head; however, the article does not assign the institution a specific role in the State.... 

... Article 64 sets forth freedom of belief as absolute. The Article, however, states that the law will set forth the right to establish places of worship and the right to practice religious rites for only “the divine religions.” Thus, while the state technically recognizes an absolute freedom of religion and freedom of thought in Article 65, it will only allow the establishment of houses of worship and the litigation of personal status issues based on either an Islamic, Christian, or Jewish identity. A transitional Article 235 also states that a law will be established to facilitate the building and renovation of churches.

Finally, as per Article 74, no political parties are to be established based on religious principles; a similar provision was included in the 1971 Constitution but was removed in texts since, allowing for organizations like the Freedom and Justice Party to be established....

In the current Constitutional draft, Article 1... notes that Egypt is a part of the Islamic world, has ties to the African continent..... 

In a new development, the current draft’s Preamble touches heavily on Egypt’s identity, laying out the country’s Islamic and Christian histories....  The Preamble is also colored with lofty rhetoric ... discussing among other things, the role of Sharia, the importance of human rights, and the necessity for equality. The reference to Sharia is thought to have been included to assuage some members’ fears on secularism....

Towns, Schools In Quebec Oppose Proposed Secular Charter

According to CBC News yesterday, universities, school boards and municipalities in Quebec are increasingly saying they will refuse to enforce Quebec's Bill 60, the province's proposed charter of secularism (see prior posting) if it is adopted by the National Assembly. On Monday, the Town Council of the Montreal suburb of Hampstead passed a strong resolution (full text in linked CBC News article) declaring in part:

...The separation of church and state should not ... be confused with the persecution of religion by the state....

[W]e reject the notion that people who believe in a deity are somehow lesser citizens. We reject the notion that wearing an identifiable religious symbol that does not physically impede a person from performing his/her duties, is a basis for discrimination;  

... [S]hould this Charter, or any variation which violates the Quebec Charter of Human Rights and Freedoms or the Canadian Charter of Rights and Freedoms. be passed by the National Assembly, the Town of Hampstead will not recognize it as a valid law. We will not comply. We will not be complicit with hatred, racism and intolerance.

Religious Non-Profits Continue To File Suits Challenging Contraceptive Coverage Mandate Accommodation

Suits continue to be filed, or re-filed, by religious non-profits challenging the Obama administration's final rules creating an accommodation in the application of the Affordable Care Act contraceptive coverage mandate to them.  The latest suits are:

• Fellowship of Catholic University Students v. Sebelius, (D CO, filed 12/3/2013) (full text of complaint) (ADF press release).
• University of Notre Dame v. Sebelius, (ND IN, filed 12/3/2013) (full text of complaint) (Notre Dame press release).

ACLU Sues Catholic Bishops For Negligence Over Hospital Guidelines That Bar Abortions In All Situations

The ACLU announced yesterday that it has filed a federal lawsuit against the U.S.Conference of Catholic Bishops and the chair and former chair of Catholic Health Ministries on behalf of a woman who was not informed by a Catholic hospital in Muskegon, Michigan of the option to terminate her pregnancy when her water broke after 18 weeks of pregnancy. The complaint (full text) in Means v. U.S. Conference of Catholic Bishops, (ED MI, filed 11/29/2013), alleges negligence "for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options."  The suit, which does not name the Michigan hospital itself a a defendant, was brought in federal court on diversity of citizenship grounds.  It complains that the USCCB's Ethical and Religious Directives for Catholic Health Care Services, which provide that abortion is never permitted, are required to be applied even when doing so places a woman's health or life at risk. The New York Times reports on the case. [Thanks to Scott Mange for the lead.]

Court Orders Minnesota Dioceses To Release Information On Credibly Accused Priests

A Minnesota state trial court judge yesterday ordered release by the Catholic Archdiocese of St. Paul and Minneapolis of the names and information on 33 priests credibly accused of child sexual abuse. He also ordered the Diocese of Winona to release the names and information on 13 other similarly accused priests.  AP reports that the information, including current status and residence for those still alive, must be released by Dec. 17. The Archdiocese says it will release the information on its website on Dec. 5. It added that most of the names that will be released have already been identified by the media, and all that are still alive have been permanently removed from ministry. The names will be those compiled in 2004. The Church has until Jan. 6 to release information of priests accused since that time.

Idaho Supreme Court: Mormon Church Owed No Special Duty To Child Injured At Church Organized Camp Out

In Beers v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (ID Sup. Ct., Nov. 26, 2013), the Idaho Supreme Court held that neither the Mormon Church nor various individual Ward members are liable for broken ankle suffered by a 13-year old girl in jumping from a bridge during a camp out organized by Ward members of the Church. The court held that there was no special relationship between the Church ("COP") or Ward members and the teenager ("Heidi") that imposed a duty of care to prevent foreseeable injury to the teen.  As to the Church's duty, the Court said:

We are unable to ascribe moral blame to the COP for this incident. We can, however, ascertain negative consequences to the community that would result from imposing a duty and resulting liability upon religious organizations to members of their faith. The result would be a powerful disincentive to organized fellowship activities. Thus, we decline to extend or create a new duty on the part of the COP toward Heidi.

AP reports on the decision.

Suit Challenges School Ban On Student Distribution of Religious Material

In Kansas last week, a federal lawsuit was filed challenging school district rules that permit students to post information and hand out flyers during non-instructional time, except for religious material. The complaint (full text) in K.R. v. Unified School District No. 34,(D KS, filed 11/26/2013), alleges that plaintiff, a 7th grader, was prevented by the policy from distributing flyers promoting a "See You At The Pole" prayer event, in violation of her 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Cert. Denied In Broad Religious Rights Challenge To Provisions of the Affordable Care Act

The U.S. Supreme Court today denied certiorari in Liberty University v. Lew, (Docket No. 13-306, cert. denied 12/2/2013). (Order List.) In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to various other provisions of the Act. Plaintiffs claimed that both the employer mandate and the individual mandate imposed support of abortions, and that certain religious exemptions in the statute violate the Establishment Clause. In the case, the 4th Circuit also refused to allow plaintiffs to belatedly add claims regarding the contraceptive coverage mandate.  (See prior posting.) [Thanks to SCOTUSblog for the lead.]

Pro-Marriage Equality Protesters Fined One Cent For Trespassing

The Louisville (KY) Courier-Journal reported last week on the trial of a same-sex couple-- Dominique James and the Rev. Maurice “Bojangles” Blanchard-- for criminal trespass after they refused to leave the Jefferson County Clerk of Court's office at its closing time in protest of being denied a marriage license. The couple insisted that they were "spiritually obligated" to stay.  The jury last Tuesday convicted the defendants, but imposed a fine of only one cent. The maximum fine could have been $250. Blanchard called the verdict a vindication of their protest. The couple had rejected a plea agreement under which charges would have been dismissed in exchange for their each working 5 hours at a charity of their choice. [Thanks to Tom Rutledge for the lead.]

Croatians Approve Constitutional Amendment Barring Same-Sex Marriage

In Croatia yesterday, voters authorized a constitutional amendment to bar same-sex marriage.  AP reports that with nearly all the votes counted, the state electoral commission said that 65% of those voting answered "yes" to the question: "Do you agree that marriage is matrimony between a man and a woman?" 34% voted "no". The amendment was strongly backed by the Catholic Church in the heavily Catholic nation. Croatia became the 28th member of the European Union in July.  Croatia’s liberal president, Ivo Josipovic, said that the government, however, will propose legislation granting some rights short of marriage to gays and lesbians living together. It was a government proposal to allow same-sex couples to register as "life partners" that initially triggered a call for the referendum by the conservative group "In the Name of the Family."  Jurist has additional background on the referendum.

Recent Articles and Books of Interest

From SSRN:

• Ashutosh Avinash Bhagwat, Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups, (November 26, 2013).
• Evelyn M. Tenenbaum, The Union of Contraceptive Services and the Affordable Care Act Gives Birth to First Amendment Concerns, (Albany Law Journal of Science and Technology, Vol. 23, No. 3, p. 539, 2013).
• Frederick Mark Gedicks & Pasquale Annicchino, Lautsi v. Italy: English Translations of Italian Trial and Appellate Decisions, (November 17, 2013).
• Frederick Mark Gedicks & Pasquale Annicchino, Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols, (November 17, 2013).
• Richard F. Duncan, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, (Texas Review of Law & Politics, Forthcoming).
• Paul Croushore, Not Getting Too Far Out in Front: The Supreme Court Decisions on Same-Sex Marriage, (November 25, 2013).
• Roger Colinvaux, Rationale and Changing the Charitable Deduction, (Tax Notes, Vol. 138, No. 1453, 2013).
• Agustín Elias Casagrande , Los Hijos de Belial. Paradigma religioso y criminalidad en el Río de la Plata hacia fines del siglo XVIII. (The Sons of Belial. Religious Paradigm and Criminality in the Río De La Plata in the Lateness of XVIII Century), (Max Planck Institute for European Legal History Research Paper Series No. 2013-08, 2013).

From SmartCILP:

• Nathan S. Chapman, Disentangling Conscience and Religion, 2013 University of Illinois Law Review 1457-1501.
• David Hollander, Resources To Begin the Study of Jewish Law In Conservative Judaism, 105 Law Library Journal 305-320 (2013).
• Priti Nemani, Piercing Politics: Religious Garb and Secularism In Public Schools, 20 Asian American Law Journal 53-82 (2013).
• The Arab Spring. Articles by George E. Bisharat, Omar M. Dajani, Intisar Rabb and M. Cherif Bassiouni. 17 UCLA Journal of International Law & Foreign Affairs 1-174 (2013).

Recent Books:

• Ronald Dworkin, Religion Without God, (Harvard University Press, Oct. 4, 2013), reviewed by The Guardian.
• Peter Gardella, American Civil Religion: What Americans Hold Sacred, (Oxford Univ. Press, Dec. 18, 2013).

Suit By Anti-Catholic Group Challenges IRS Revocation of Its Non-Profit Status

The Dr. R. C. Samanta Roy Institute of Science and Technology, Inc. (SIST) has received some public notice in recent months as the attorney for its affiliates in bankruptcy proceedings was disciplined by the Minnesota Supreme Court for making repeated anti-Catholic slurs aimed at a federal bankruptcy judge and several bankruptcy trustees. (See prior posting.) Last year, the Southern Poverty Law Center profiled SIST, calling the Wisconsin-based organization "a mysterious, Catholic-bashing group" that plans to use profits from an amusement park to build a school in Wisconsin and fund another school in India. In Internal Revenue Bulletin 2013-49, (Dec. 2, 2013), the Internal Revenue Service recently announced that SIST has filed a declaratory judgment action challenging the revocation of its non-profit status under the Internal Revenue Code. The filing of the action allows individual contributors to continue to make tax-deductible contributions in limited amounts while the litigation is pending.

LA Times Carries Long Investigative Report On Handling Of Priest Sex Abuse By Archdiocese

Today's Los Angeles Times carries a very long investigative report on how the Archdiocese of Los Angeles, under the leadership of Archbishop Roger Mahony from 1985- 2011, handled revelations of sex abuse by priests. The article gives special attention to the handling of charges against now-defrocked Father Michael Baker. Here is an excerpt from the Times report:

Mahony and his aides insisted on secrecy even when lives were at risk. In one case, the archdiocese was informed that a man dying of AIDS had been having sex with a parish priest, who in turn was abusing high school students.... Yet church officials did nothing to alert the priest or the students.... 

Mahony's schedule brought him in regular contact with the police chief and the district attorney, but he never mentioned the accused abusers in his ranks or reported them to law enforcement. In private memos, he discussed with aides how to stymie police.

Mahony and his aides selected therapists who they knew wouldn't report abuse to authorities, and urged suspected molesters to remain out of state to avoid police investigations and lawsuits..... 

LAPD policy was to notify the archdiocese when an investigation was underway. But once the church was informed,[Detective Dale] Barraclough said, "we knew that the suspect, 99% sure, that he was going to be out of the country or out of state."...

From early in his time as archbishop, Mahony did more than his predecessors to address sexual abuse by priests. For the most part, he didn't ignore allegations or shuffle untreated molesters from parish to parish. He insisted on inpatient therapy and placed returning priests in jobs where they had little access to children....  But he drew the line at steps that would acknowledge abuse cases publicly.

 (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Young v. Owens, 2013 U.S. Dist. LEXIS 165751 (SD GA, Nov. 20, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 166587, Sept. 3, 2013) and, while dismissing RLUIPA damage claims, allowed an inmate to proceed with the remainder of his complaint that his rights were violated by rule changes as to what sacred objects are permitted in a prison setting, a package program and restrictions on holiday observance and worship time.

In Darrough v. Allen, 2013 U.S. Dist. LEXIS 166741 (MD GA, Nov. 25, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 167166, Oct. 17, 2013) and dismissed an inmate's complaint that he was ordered to be shaved in violation of his religious beliefs.

In San Antonio v. Henry, 2013 U.S. Dist. LEXIS 167343 (ND FL, Nov. 25, 2013), a Florida federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 167347, Nov. 4, 2013), and held that a suit in which an inmate alleged he had been improperly removed from a faith-based dormitory and retaliated against for grieving the incident was properly removed from state to federal court, despite plaintiff's state law allegations.

In Petty v. Lagore, 2013 U.S. Dist. LEXIS 167864 (ED MO, Nov. 26, 2013), a Missouri federal district court dismissed an inmate's complaint that while in Administrative Segregation he could not attend his self-help recovery program and was not allowed to go to church or participate in outside religious activities.

In Vega v. Lantz, 2013 U.S. Dist. LEXIS 167797 (D CT, Nov. 26, 2013), a Connecticut federal magistrate judge in an opinion after a 3-day non-jury trial held that a Muslim inmate's free exercise and RLUIPA rights were not infringed by the cancellation of weekly Jumu'ah prayer when staff is unavailable, denying plaintiff's request to purchase prayer oils from an outside vendor and his request for elective circumcision surgery.

In McCray v. Passaic County Jail, 2013 U.S. Dist. LEXIS 168481 (D NJ, Nov. 25, 2013), a New Jersey federal district court dismissed, with leave to amend, a Muslim pre-trial detainee's complaint that his jail provided Muslim inmates a vegetarian diet, but would not provide them a diet with Halal/Kosher meat.

In Jenkins v. Urbina, 2013 U.S. Dist. LEXIS 169072 (ED CA, Nov. 25, 2013), a California federal magistrate judge dismissed a Native American inmate's complaint that his free exercise and RLUIPA rights were infringed when, being placed in administrative segregation for two days, a corrections officer took his property which included religious items such as beads, sewing needles, choker, and feathers. He did not receive back all the property taken.

Kazakhstan Creates New Initiatives To Combat Religious Extremism

In Kazakhstan on Thursday, several government officials conducted a media briefing on new initiatives to prevent religious extremism. Marat Azilkhanov, head of the Kazakhstan Agency for Religious Affairs, announced a toll-free telephone hot line available throughout the country to furnish people answers to questions about religion. Azilkhanov said:

Two theologians, two psychologists and a lawyer work in the center in a twenty-four hour regime.... People can ask these specialists any religion related questions. They can also receive psychological, legal and advisory assistance. People can also visit this center and receive consultations personally....

Commenting additionally on the hot line, the head of the consulting and information center,Yuliya Denisenko, said that in addition to furnishing information, the hot line will  furnish  psychological aid to people suffering from destructive religious activities. She added:

The information about breach of legislation in the religious sphere, illegal and destructive religious activities received by the center is forwarded to the law-enforcement bodies and departments for religious affairs of the akimats for investigation.

Officials also briefed reporters on educational programs.  A Religious Studies Fundamentals course has been introduced into the 9th grade. It provides basic knowledge about Islam, Christianity and Buddhism. In universities, lectures, films videos, and informal meetings are used to discuss religion related issues. Finally, the Agency for Religious Affairs has created a new E-Islam website to provide comprehensive knowledge about Islam from a secular viewpoint. Eurasianet today posted additional background on these developments.

British Employment Appeal Tribunal Remands Unfair Dismissal Claim By Church of England Rector

In Sharpe v The Worcester Diocesan Board Of Finance Ltd., (UK EAT, Nov. 28, 2013), Britain's Employment Appeal Tribunal remanded for further consideration an appeal by an ordained minister in the Church of England who argued that his service as a Rector is covered by the  Employment Rights Act 1996.  Petitioner claimed that he had suffered detrimental treatment and was constructively and unfairly dismissed as a result of his making protected disclosures.  The Appeals Tribunal held that the UK Supreme Court  decision earlier this year in President of the Methodist Conference v. Preston, (UK Sup. Ct., May 15, 2013), requires a focus on "whether there was an express contract between the Claimant and the Bishop, having regard to the rules and practices of the Church and the particular arrangements made with the Claimant." Explaining the Preston holding that a Methodist minister is not covered by the Employment Rights Act, the Appeal Tribunal said in part:

For a number of reasons... the rights and duties of ministers in the Methodist Church were found to arise entirely from their status in the constitution of the Church, and not from any contract.....

Law & Religion UK blog also has  coverage of the decision.