7th Circuit: Pharmacist Demanded Too Much Accommodation For Religious Belief

On Wednesday, the U.S. 7th Circuit Court of Appeals ruled that Wal-Mart was not required to go as far as an employee pharmacist requested in accommodating his religious objections to filling birth-control prescriptions. In Noesen v. Medical Staffing Network, Inc., (No. 06-2831)(7th Cir., May 2, 2007), the court found that under Title VII of the 1964 Civil Rights Act, the accommodation sought by pharmacist Neil Noeson would impose an undue hardship on Wal-Mart. Wal-Mart offered to permit Noesen to assist only male customers and women not of childbearing age. However, it insisted that he, like all other staff, needed to answer telephones. However, Noesen insisted that the only acceptable accommodation was to relieve him of all counter and telephone duties unless customers were first pre-screened by others to ensure that they were not seeking birth control.

The court also held that, insofar as Noesen had a claim against the state of Wisconsin, Title VII does not override the state's Eleventh Amendment immunity in federal court. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The 7th Circuit's link to the opinion in this case has been unstable. It has been updated, but if it breaks again, search by case name or number here.

April-May Prisoner Free Exercise Cases

In Allmon v. Butler, 2007 U.S. Dist. LEXIS 31986 (D AZ, April 30, 2007), an Arizona federal district court rejected a prisoner's claim that his free exercise rights were violated when he was kept from attending religious services or talking to a pastor regarding family emergencies. Plaintiff did not allege his religion or how he was unjustifiably prevented him from engaging in conduct mandated by his faith.

In Williams v. Arpaio, 2007 U.S. Dist. LEXIS 31988 (D AZ, April 30, 2007), an Arizona federal district court denied a free exercise claim by a prisoner who complained that he was denied access to religious programming on television and that he is denied Pagan religious counseling.

In Linares v. Mahunik, 2007 U.S. Dist. LEXIS 31488 (ND NY, April 30, 2007), a New York federal district court accepted the recommendations of a magistrate judge to dismiss a prisoner's free exercise claim, agreeing that a one-time cancellation of a callout to attend choir practice did not substantially burden plaintiff's free exercise rights.

In Harwood v. Tyler, 2007 U.S. Dist. LEXIS 31908 (ED WA, May 1, 2007), a federal magistrate judge held that a prisoner's free exercise rights were not substantially burdened by the removal and destruction of his religious materials that deprived him of the ability to study for 30 days.

In Kuperman v. New Hampshire Department of Corrections, 2007 WL 120092 (D NH, April 18, 2007), a New Hampshire federal Magistrate Judge recommended that an injunction issue to require an Orthodox Jewish prisoner to receive a Kosher diet. He held that, as applied here, a prison regulation that suspended the inmate's right to a religious diet for 6 months for a single violation of the diet by him is unconstitutional. The Boston Globe reported on the decision last week. UPDATE: Here is the Lexis link: 2007 U.S. Dist. LEXIS 32859.

Israeli Lawyer Sues To Open Rabbinical Court Staff Employment To Women

In Israel, lawyer Naama Safrai-Cohen is trying to open employment in the rabbinical court system to women. Haaretz reports today that Safrai-Cohen last month petitioned the Jerusalem Labor Court to order the Civil Service Commission and the Rabbinical Court Administration to cancel a job tender for the position of legal aide in the rabbinical courts because it required that applicants be certified by the Chief Rabbinate of Israel. The chief Rabbinate only certifies men. The tender was withdrawn, but the court is still considering the case.

Catholic Group's Suit Against University of Wisconsin Settled

The University of Wisconsin has settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization. Originally the University had two objections-- the Foundation limited its membership to Catholics, and it was not controlled by students. In March, a federal judge ruled that the University was violating the organization's rights by applying non-discrimination rules in a way that forced it to admit non-Catholics. (See prior postings, 1, 2.)

In yesterday's settlement (full text of court order), reported by the Badger Herald, and by the Chippewa, the Foundation agreed to reorganize to separate St. Paul’s University Catholic Parish from the University's Catholic student group. The University will recognize the separate student group, RCF-UWM, as a student organization. RCF-UWM agreed, however, that it would not seek funding from student fees for Masses, weddings, funerals or other events "requiring the direct control of ordained clergy." In exchange, University Chancellor John Wiley agreed to include $253,274 in student fee funding for the group in his recommended budget for next year. As part of the settlement, the court vacated its preliminary injunction orders issued in March and dismissed plaintiff's complaint.

White House Threatens Veto Of Hate Crimes Bill, But Not On Religious Expression Grounds

An odd show down is is being orchestrated in Washington over H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007, which was approved by the House of Representatives yesterday. The vote was 237-180. (New York Times.) The bill expands the definition of hate crimes to include crimes of violence connected in some way to interstate commerce that are committed because of the victim's actual or perceived sexual orientation, gender identity or disability. It also provides funds and other assistance to promote local hate crimes prosecutions. The bill now moves to the Senate which has not yet voted on its parallel bill, S.1105.

Conservative Christian groups have opposed the bill, claiming that it would infringe their right to religious expression. Presumably they are concerned that preaching about the sinfulness of homosexuality could lead to prosecution, particularly if someone is inspired to commit violence by a denouncement of gays and lesbians. The bill's proponents argue that it contains extensive provisions assuring that prosecutions will target criminal acts, not expressions of belief. (See prior postings 1, 2, 3.)

Following the House vote, the White House issued a statement (full text) saying that if the bill ultimately passes the Senate, the President's "senior advisors would recommend that he veto the bill." Interestingly, however, the statement makes no mention of claimed interference with the expression of religious beliefs as a ground for veto. Instead it makes three very different arguments.

First it objects to federalizing as many violent crimes as the bill does. Second, it complains that the bill does not cover crimes against the elderly, members of the military, police officers, and victims of prior crimes. Interestingly, the statement makes no mention of another class that Christian conservatives wanted included in the bill-- unborn babies. Finally, the White House statement objects to a provision in the bill that does not apply to crimes motivated by sexual orientation of the victim, but only to crimes motivated by a victim's race, color, religion or national origin. 18 USC Sec. 249(a)(1), the White House says, raises constitutional concerns because it is not limited to activities which Congress could criminalize under its powers to regulate interstate commerce, enforce equal protection or protect federal personnel.

The Anti-Defamation League issued a statement praising the House action, criticizing the President's threatened veto, and saying that the law would withstand constitutional attack.

Indonesia Charges 41 Christians Criminally Over Insulting Video

Asia News reported yesterday that in Malang, Indonesia, 41 Christians have been arrested on blasphemy charges growing out of a controversial hour-long video they produced. They have been charged under Section 156A of the Criminal Code with offending Islam. Those charged are all members of the Indonesian Students Service Agency (LPMI). If convicted, they face a 5-year prison sentence. The video shows a gathering of young people in Muslim dress praying to the sound of Christian song. The priest leading the prayer points his finger at the Koran and says that it is the "source of all evil in Indonesia, from violence to terrorism".

White House Ceremony, Capitol Hill, Mark National Day of Prayer [Corrected]

This morning in the White House, President George W. Bush hosted a ceremony marking the National Day of Prayer. (See prior posting.) The program (video) was introduced by the head of the National Day of Prayer Task Force, Shirley Dobson, wife of Focus on the Family chairman James Dobson. Making certain that the ceremony was not solely a Christian event, the U.S. Army Chorus sang "Sim Shalom," a prayer from the Jewish liturgy, and Chicago Rabbi Michael Siegel was among the clergy who spoke. (JTA). Among the other speakers were the chaplain of the corps of cadets at Virginia Tech University (AP).

Musical presentations at the White House ceremony included two spirituals. No Muslim clergy spoke at the event. The President's remarks at the event (full text) focused on the reasons for prayer. He concluded saying: "Prayer has the power to change lives and to change the course of history. So on this National Day of Prayer, let us seek the Almighty with confidence and trust...."

Following the National Day of Prayer ceremony, the President discussed comprehensive immigration reform with some of the clergy who were present. (White House Press Release.)

A National Day of Prayer event was also held on Capitol Hill in the Cannon Office building. Among the speakers was Mississippi Supreme Court Chief Justice James W. Smith Jr. (Hattiesburg American). Smith gained notoriety in 2006 when he appeared in the film Borat . He was shown at a Pentacostal camp meeting saying that "we are a Christian nation now, we were a Christian nation in the beginning, and we're gonna always be a Christian nation until the good Lord returns." (Ethics Daily). After Smith's National Day of Prayer remarks, event organizer Barbara Byerly prayed for God to "reverse the course" of the nation's judges for their "ungodly" rulings. (Jackson Clarion Ledger). [Note, an earlier version of this posting incorrectly reported that Smith had spoken at the White House ceremony.]

House Passes Head Start Reauthorization With Ban On Religious Discrimination Intact

Today, the U.S. House of Representatives passed HB 1429 , the Improving Head Start Act of 2007. The vote was 365-48. (Washington Post). The bill passed after the defeat of a motion to send it back to committee with instructions to remove provisions currently in federal law that ban religious discrimination in hiring Head Start teachers, staff and volunteers. Blog from the Capital has extensive coverage of the contentious debate on the House floor on the motion to recommit, as well as background on the dispute. The House did pass (229-195) an amendment proposed by the Democrats that supports the right of faith-based groups to participate in Head Start. (Washington Times). People for the American Way issued a release welcoming the retention of the anti-discrimination provision in the bill. (See prior related posting.)

4th Circuit Upholds Principal's Removal Of Religious Material From Bulletin Board

Yesterday the U.S. 4th Circuit Court of Appeals upheld the actions of a York County, Virginia principal who removed religious-themed material that Spanish teacher William Lee had posted on his classroom bulletin board. The posted articles and photos focused on instances of governmental involvement with religion and on religious activities of a former Virginia high school student. In Lee v. York County School Division, (4th Cir., May 2, 2007), the court rejected the Spanish teacher's claim that his First Amendment free expression rights were violated by the principal's actions. The court held that the items removed from the bulletin board were curricular in nature, constituted school-sponsored speech and bore the imprimatur of the school. This makes the dispute over Lee’s postings of the items merely an ordinary employment dispute, and not a dispute over his right to speak out on matters of public concern. In reporting on the decision yesterday, the Washington Post quoted the head of the Rutherford Institute as saying that it would ask the U.S. Supreme court to review the decision. (See prior related postings 1, 2.) [Thanks to Derek Gaubatz for the lead.]

USCIRF Makes Recommendations On List Of Countries Violating Religious Freedom

Yesterday, the United States Commission on International Religious Freedom (USCIRF) issued its 2007 recommendations to the Secretary of State on countries in which there are serious violations of religious liberty. (Press release.) Eleven countries were recommended for listing as "Countries of Particular Concern"-- those with the most egregious violations of religious freedom and belief. Eight of these countries were named CPCs by the State Department last year-- Saudi Arabia, China, North Korea, Sudan, Iran, Eritrea, Uzbekistan and Burma. The Commission recommended placing Viet Nam back on the list. It had been removed last year on the eve of President Bush’s visit there for the Asian Pacific Economic Conference. USCIRF also recommended adding Turkmenistan and Pakistan to the list. Last year the State Department rejected USCIRF's recommendations to list these two countries as CPCs. Annual designation of CPCs by the President is mandated by the International Religious Freedom Act of 1998.

USCIRF also placed eight countries on its watch list, as countries where religious freedom violations call for close monitoring. Carried over from last year are Afghanistan, Belarus, Egypt, Bangladesh, Cuba, Indonesia, and Nigeria. Added this year is Iraq. USCIRF also issued its 2007 Annual Report containing detailed reports on the status of religious freedom in numerous countries around the world.

Suit Challenges Indiana Social Service Agency's Hiring of Chaplain

In March 2006, Indiana's Family and Social Services Administration employed Rev. Michael Latham, a Baptist minister, as its chaplain to travel across the state to counsel FSSA workers during a time of rapid changes in the agency. Latham also recruits volunteer clergy of other faiths to provide counseling. Yesterday, according to the Associated Press, the Freedom From Religion Foundation filed suit in federal district court in Indianapolis claiming that the hiring of Latham was unconstitutional under the federal and state constitutions. The suit alleges that his hiring had no secular purpose and creates excessive entanglement between government and religion.

En Banc 10th Circuit Review Sought In "Seven Aphorisms" Cases

The cities of Duchesne and Pleasant Grove, Utah have petitioned for en banc review by the U.S. 10th Circuit Court of Appeals in two decisions by a 3-judge panel that largely upheld the right of members of the Summum faith to erect monuments displaying their Seven Aphorisms alongside Ten Commandments monuments in two different public parks. (See prior posting.) Yesterday's Deseret Morning News reports on the petitions filed in Summum v. Pleasant Grove City and Summum v. Duchesne City. The cities argue that the 3-judge panel was mistaken in characterizing the donated Ten Commandments monuments as private speech instead of speech by the government. They say that the panel's reasoning could could turn parks "into a cluttered junkyard of monuments contributed by all comers."

The argument that once the 10 Commandments monuments were donated, they were "government speech", is a particularly interesting one in the Duchesne City case. There the city, in an attempt to avoid Summum's request for equal treatment in a public forum, transferred the parkland under the 10 Commandments monument to private individuals.

Texas House Passes Bill To Protect Student Religious Speech

On Tuesday, the Texas House of Representatives approved by a vote of 121- 10 (with one person voting Present) HB 3678, the Religious Viewpoints Antidiscrimination Act, also known as the Schoolchildren's Religious Liberties Act. The bill requires public schools to allow students to express religious viewpoints in the same way that it permits them to express other points of view. It provides that students may express their beliefs about religion in homework, artwork, and other assignments, and may organize prayer groups, religious clubs, "see you at the pole" gatherings, or other religious events before, during, and after school to the same extent that students are permitted to organize other noncurricular activities. The bill sets out a Model Policy that schools may adopt to comply with the bill's requirements.

Monday's San Antonio Express-News reports that the bill, now in the Senate Education Committee, is strongly supported by Texas Governor Rick Perry. However Kathy Miller, head of the Texas Freedom Network, says that the bill threatens religious freedom because "students will be held captive to the expression of religious beliefs that they and their families may not share". (See prior related posting.)

Missouri Legislature Passes Faith-Based Organization Liaison Act

Yesterday, according to the Rolla Daily News, Missouri's House of Representatives passed the Faith-Based Organization Liaison Act ( HB 888) by a vote of 122-27. Already passed by the Senate, the bill calls for the Social Services Department to appoint regional liaisons to promote the provision of community services by faith-based organizations and provide guidance to them on their rights and responsibilities under federal law. (See prior posting.)

State Funds To Baptist Group Homes Challenged; Proselytization Charged

In a Kentucky lawsuit challenging state funds that have gone to the Kentucky Baptist Homes for Children, plaintiffs have filed a copy of a report that charges the social service agency with religious coercion and proselytizing in their group homes. Today's Louisville Courier Journal reports that in exit interviews conducted for the state by the Children's Review Program, a comparatively small number of children claimed that they were forced to participate in Bible readings, prayers or Baptist services or that they were prevented from practicing their own faith. The agency (now known as Sunrise Children's Services), has received $61 million for housing children placed in state custody. It denies the charges, and the state agrees. In reviews, the Homes have generally scored high on maintaining children's cultural connections. The lawsuit challenging state funding, as well as charging religious discrimination, was filed in 2000 by and employee who was fired after the Homes learned that she was a lesbian.

British Treasury Considering Issuance of Sharia-Compliant Bonds

In a speech last week (full text), Britain's Economic Secretary to the Treasury, Ed Balls, announced that the UK government is looking into the possibility of issuing government bonds that are Sharia compliant. He said that a working group is being formed to "examine the wider benefits from the issuance of sukuk bonds for the development of London as a centre for Islamic finance." Bahrain, Malaysia, Qatar and Saxony-Anhalt in Germany are already issuing this type of financial instrument. In addition to considering the issuance of Sharia-compliant bonds in the wholesale sterling market, Britain's National Savings and Investment agency will examine the possibility of issuing Islamic products in the retail market as a way of encouraging British Muslims to save.

Last week, stories in The Guardian and Arabian Business emphasized the growing market for Islamic financial products. The government bond proposals are part of a broader group of measures that were announced by Secretary Balls on April 16 at a government-hosted summit on Islamic finance. (Press release.)

Britain's initiative is not without its critics. In a letter to the Financial Times last week, a spokesperson for the Lawyer's Christian Fellowship argued that Sharia would limit the purposes for which funds raised from the bonds could be spent, and that disputes regarding such financial instruments could involve the need to interpret religious law. In this regard, an article today in LiveMint.com profiles Bahrain's Sheikh Nizam Yaquby, one of a group of Islamic scholars who advises financial companies around the world on structuring insurance policies, accounts and bonds to meet the requirements of Islamic law.

UPDATE: The May 3 Legal Times carries an interesting article on the growing demand for lawyers with expertise in Islamic finance and the role of Islamic scholars in developing new products.

Teacher Sues School Over Order To Remove Classroom Banners

Yesterday, the Thomas More Law Center announced that it had filed a federal civil rights suit against San Diego, California's Poway Unified School District on behalf of a teacher who was required by school officials to remove from his classroom a number of banners with religious references on them. For the past 25 years, teacher Brad Johnson had displayed banners with excerpts from patriotic documents referencing God, such as "in God We Trust" and "God Shed His Grace on Thee". The suit alleges that the school district has imposed an unconstitutional viewpoint-based restriction that serves no valid educational purpose on Johnson's speech by ordering the banners taken down. Yesterday's North County Times discusses the lawsuit. Poway School District is already involved in other high profile litigation brought by a student who was banned from wearing a T-shirt condemning homosexuality.

California Can Require Social Security Number For Driver's License

In Harris v. Business, Transportation and Housing Agency, 2007 U.S. Dist. LEXIS 31283 (ND CA, April 17, 2007), a California federal district court rejected a free exercise challenge to California's requirement that a person applying for a drivers' license present a social security number. Smiley Harris, a minister in the Church of Greater Faith and Redemption, in a wide-ranging group of claims, argued that his congregation forbids use or possession of a social security number, believing that it is the "mark of the beast".

Britain's New Religious Discrimination Ban Effective April 30

Norwich Union reports that Part 2 of Britain's Equality Act of 2006 banning discrimination on the basis of religion or belief came into force on April 30. The new requirements cover furnishing of goods, facilities or services. Britain's Department of Communities and Local Government has issued a Guidance document that explains the new rules and certain exceptions that are available for religious organizations. A Guidance document for schools is available from Teachernet.

Malaysian Offical Rejects Request For Chinese Muslim Mosque

In Malaysia, Abdul Hamid Othman, the religious adviser to Prime Minister Abdullah Ahmad Badawi, has recommended that the government refuse a request by Chinese Muslims who want to build a Chinese-designed mosque in Kuala Lumpur. Yesterday's Khaleej Times reported on the dispute. Danial Hakim Boey, head of the Malaysian Chinese Muslim Community, says that Indian Muslims in Malaysia have their own buildings. However, Hamid said that the request has political implications: "Now they want their own mosques, the next time around they will be asking for leaders to represent their ethnic groups."