Malaysian Court Dismisses Prosecutions Against Shias On Technical Grounds

The Wall Street Journal reported yesterday that in Malaysia, Shia Muslims are heartened by the dismissal on technical grounds of a prosecution against 3 men for violating a local fatwa requiring Malaysians to follow Sunni teachings. The fatwa, issued in 2012 by the Perak state fatwa council, is similar to ones adopted in 11 of the country's 14 states after the National Fatwa Council issued a similar ruling in 1996. The 3 men were charged with possessing books and other items relating to Shia Islam, but a Sharia Lower Court judge ruled that two of the charges against the defendants were unclear. Two other Shias were released on similar grounds several weeks ago. However over the last year there have been a growing number of cases against Shias and practitioners of other minority religions.

Recent Prisoner Free Exercise Cases

In Pittman-Bey v. Celum, (5th Cir., Feb. 14, 2014), the 5th Circuit held that defendants in a prisoner lawsuit had qualified immunity because "there is neither controlling authority nor a robust consensus of persuasive authority showing that a Muslim inmate who did not participate in Jumu'ah services was entitled to participate in Ramadan activities and after sunset meals."

In Cauthen v. Rivera, 2014 U.S. Dist. LEXIS 16641 (ED CA, Feb. 7, 2014), a California federal magistrate judge recommended that a Rastafarian inmate be permitted to proceed with his complaint that his free exercise and RLUIPA rights were infringed when he was subjected to an unclothed body cavity search in the presence of female staff.

In Pattison v. Nevada, 2014 U.S. Dist. LEXIS 17109 (D NV, Feb. 11, 2014), a Nevada federal district court refused to reconsider its original imposition of sanctions of $100 on defendants who frivolously removed to federal court (after 2 years of state court litigation) a Jewish inmate's state court complaint that he was being denied kosher meals.

In Wallace v. Miller, 2014 U.S. Dist. LEXIS 17602 (SD IL, Feb. 12, 2014), an Illinois federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 185068, Aug. 22, 2013) and dismissed many of the claims by an inmate who was an adherent of Satmar Hasidic Judaism who contended that he was deprived of sufficient nutrition in connection with the amount of food he received on religious fast days, as well as claiming retaliation and differential treatment. However the court permitted plaintiff to proceed with a claim against the dietary services manager and the senior chaplain for damages for failure to provide kosher meals, as well as certain claims against other defendants.

In Bucano v. Monroe County Correctional Facility, 2014 U.S. Dist. LEXIS 17877 (MD PA, Feb. 10, 2014), a Pennsylvania federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 17122, Jan. 7, 2014) only in part and allowed an inmate to move ahead against one defendant on her claim that she was forced to eat non-kosher food. The defendant had not moved for dismissal. The remainder of the case was dismissed.

In Johnson v. Martin, 2014 U.S. Dist. LEXIS 17649 (WD MI, Feb. 12, 2014), a Michigan federal district court adopted in part a magistrate's recommendations (2014 U.S. Dist. LEXIS 18460, Jan. 14, 2014) and dismissed an inmate's complaint that he was denied Jewish reading material and a kosher diet, concluding that plaintiff failed to show that he has a sincerely held religious belief that requires accommodation.

In Boone v. Coleman, 2014 U.S. Dist. LEXIS 18739 (CD IL, Feb. 14, 2014), an Illinois federal district court permitted a Messianic Hebrew inmate to proceed against a correctional officer, but not other defendants, on his complaint that he was denied a kosher diet.

In Marron v. Jabe, 2014 U.S. Dist. LEXIS 19150 (ED VA, Feb. 14, 2014), a Virginia federal district court dismissed a Muslim inmate's objections to a prison rule that requires CDs or tapes to be ordered through a single vendor. The policy led to authorities refusing to allow plaintiff to have two religious non-music tapes that he had ordered through a different vendor.

British Court Uses Anti-Social Behavior Orders Against Islamic Radicals

Britain's Crime and Disorder Act 1998, Sec. 1, permits courts to issue an Anti-Social Behavior Order (ASBO) against anyone who has acted "in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons..." Friday's London Mirror and Mail Online report on the innovative use of this power against Islamic radicals in London. Three Muslim men who have been acting as a vigilante Muslim Patrol to enforce Sharia norms in East London received 5-year ASOBs last Friday barring them from making unsolicited approaches to people to promote Sharia law.  The ringleader of the 3, Jordan Horner, also had restrictions placed on him designed to prevent him from preaching extremist Islamic views.  He is prohibited from possessing a bullhorn in any public place, and barred from entering any place of education unless as a student or to visiting relatives. The men are also prohibited from meeting with each other, as well as with a fourth named person or with controversial Islamist Anjem Choudary.

Illegal Kosher Slaughtering Reportedly Continuing In Poland

As previously reported, in Poland a 2012 court decision which Parliament refused to reverse effectively banned kosher and halal slaughter by eliminating an exemption from the requirement that animals be stunned before they are killed.  Previously some $400 million per year of kosher and halal meat exports had benefited the Polish economy.  JTA reported this week, however, that kosher slaughtering is continuing in three Polish slaughterhouses. The firms are certifying to the government that the animals are stunned before slaughter, a representation that is false if the requirements for kosher slaughtering have been met.  Poland's chief rabbi has suspended an aide who was responsible for the misrepresentations, pending an investigation.

Uzbekistan Issues Decree Regulating Religious Materials

Forum 18 (Feb. 12) and Ferghana (Jan. 28) report on a decree issued recently by the government of Uzbekistan that creates a formal legal basis for its restrictions on religious materials.  Supplementing the 1998 Law on Freedom of Religion or Belief (full text of 1998 law .pdf file), the decree titled “Measures to improve order in the production, import and distribution of religious materials,” was signed by the Prime Minister on Jan. 20 and came into formal effect on Jan. 27. It allows distribution of religious materials only at commercial points of sale equipped with cash registers. Advance permission is needed to import religious materials. No more than 3 copies of even approved publications may be imported for personal use.  The production, storage or distribution of materials intended to encourage people to change their beliefs or which "distort religious canons" are prohibited.

Federal District Court Strikes Down Virginia's Ban on Same-Sex Marriages; Delays Injunction To Allow Appeal

Yesterday in Bostic v. Rainey, (ED VA, Feb. 13, 2014), a Virginia federal district court concluded that Virginia's constitutional and statutory provisions that bar same-sex marriage and prohibit recognition of lawful same-sex marriages performed elsewhere are unconstitutional under the due process and equal protection clauses of the 14th Amendment:

The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry.  Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.

The court began its opinion with a quotation from Mildred Loving, one of the plaintiffs in the 1967 U.S. Supreme Court decision in Loving v. Virginia that struck down Virginia's laws barring interracial marriage and established the modern doctrine of marriage as a "fundamental right." However the court yesterday also stayed the effectiveness of its preliminary injunction to give the parties time to appeal its decision to the 4th Circuit. Washington Post reports on yesterday's decision.

UPDATE: An amended opinion (full text) was issued on Feb. 14 correcting a reference in the first paragraph of Judge Allen's opinion.  The sentence that originally read: "Our Constitution declares that "all men" are created
equal." was corrected to read: "Our Declaration of Independence recognizes that "all men" are created equal." Politico reports on the change. [Thanks to Mirror of Justice for the lead.]

Hawaiian Church Settles Qui Tam Action Charging It With Underpaying School System

AP reports that New Hope churches, one of the original defendants in a Hawaii qui tam whistle blower lawsuit, has agreed to settle for $775,000. However it will not admit wrongdoing as part of the settlement.  As previously reported, in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), relators claim that  churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities. Under the settlement, $200,000 will go to the relators who are responsible for the suit being filed, with the remainder going to the school system.

New Danish Administrative Regulation Prohibits Kosher and Halal Slaughter Without Prior Stunning of Animal

World Jewish Congress reported yesterday that Denmark's Agriculture and Food Minister has signed a new regulation that takes effect Feb. 17  requiring all animal slaughter to be carried out with prior stunning. Traditionally both kosher and halal slaughter prohibits prior stunning of an animal, and the new regulation was strongly opposed by the Jewish and Muslim communities in Denmark.

Under the new rule, the provision in current Danish regulations that allows an exemption for ritual slaughter that follows elaborate procedures, including stunning immediately after slaughter, will be eliminated. Apparently the regulatory change will have little practical effect at least on the supply of kosher meat, since for the past ten years all kosher meat sold in Denmark has been imported from abroad.

The Food, Agriculture and Fisheries Ministry's website says: "In Denmark all ritual slaughter of animals at slaughterhouses is performed with previous stunning at the moment." JTA reports that according to the president of Denmark's Jewish community, Danish Jews agreed in 1998 to the certification as kosher of meat from cattle that were stunned with non-penetrative captive bolt pistols.  However a Danish rabbi disputes this, saying the agreement probably referred to post-cut stunning, but since no kosher slaughter has taken place in Denmark for at least 10 years, it is unclear. In discussing the new regulation, Agriculture and Food Minister Dan Jørgensen told Danish television: "Animal rights come before religion."

Catholic Bishops In Various Countries At Odds Over Anti-Gay Laws

Religion News Service reported yesterday on "unusually stark and public fissures" among Catholic bishops in various countries over whether to support or oppose harsh anti-gay laws being enacted or revived in some countries of Africa, Asia and elsewhere. For example, after Nigerian President Goodluck Jonathan recently signed new anti-gay legislation, the Nigerian Catholic hierarchy  praised the president's "courageous and wise decision."  However, a few days later an editorial in a newspaper run jointly by the bishops of South Africa, Botswana and Swaziland, took a very different view, calling on the Catholic Church in Africa "to stand with the powerless" and "sound the alarm at the advance throughout Africa of draconian legislation aimed at criminalizing homosexuals." Similar disagreements can be seen among bishops in Europe and Asia.

India Supreme Court Orders Stop To Imminent Devadasi Ceremony That Often Exploits Young Girls

The Calcutta Telegraph reports that India's Supreme Court yesterday took quick action in response to a recently filed Public Interest Lawsuit to try to prevent exploitation of young girls in a ceremony scheduled for the night of February 13-14 in front of the Uttangi Durga Hindu temple in the city of Davangere in India's Karnataka state. According to the report:

Under the devadasi system, girls on attaining puberty are married off to the local temple’s female deity at a ceremony willingly consented to by the parents in most cases, though in some cases local panchayats have been known to use a certain degree of coercion.

After being “married” off and “dedicated” to the deity, the girls are forced to sing and dance before their village chiefs, rich landlords and other influential persons and have often been sexually exploited.

The PIL cited newspaper reports that said that despite the Karnataka Devadasis (Prohibition of Dedication) Act, 1982, the practice continued.... The petition alleged that many devadasis, exploited by local landlords and influential men, had been left to fend for themselves and were dying of poverty or sexually transmitted diseases.

The court told counsel for the non-profit foundation filing the suit that they should have come to the court sooner.  As an interim measure, the court yesterday faxed an order to the chief secretary of the state of Karnataka ordering him to take steps to prevent unmarried girls from being forced to become devadasis at the February 13-14 religious event.

Suit By Evangelical Family Challenges Abortion Clinic Buffer Zone

The Thomas More Law Center yesterday announced that it has filed a federal lawsuit challenging a Portland, Maine ordinance that creates a 39-foot buffer zone around reproductive health clinics to prevent protests and counseling on sidewalks near the city's single clinic that provides abortions. The complaint (full text) in Fitzgerald v. City of Portland, (D ME, filed 2/12/2014), alleges that plaintiffs, a family who identify themselves as Evangelicals, have been peacefully praying and counseling women outside the clinic for 16 months, passing out literature and Bible tracts. The ordinance prevents their activities. The suit claims that this is a broad, vague content-based prior restraint on their speech. A suit raising similar legal issues was argued before the U.S. Supreme Court last month. (See prior posting.)

2 Minnesota Catholic Dioceses Sued In Demand For Files of Abusive Priests

In a suit filed in a Minnesota state trial court on Wednesday against two Catholic dioceses, plaintiff who claims to have been abused as a 13-year old boy by Catholic priest James Vincent Fitzgerald is seeking release by the dioceses of the complete files of priests who have been credibly accused of abuse. As reported by Forum News Service, the alleged victim, identified only as "Doe 30", has sued the Diocese of Duluth and the Diocese of New Ulm saying that the abuse occurred in 1976. This is the third suit by various victims against the Diocese of Duluth demanding release of files.  So far the diocese has only released the names (along with basic biographical data) of accused priests. Fitzgerald worked at 6 parishes of the Diocese of Duluth from 1957 to 1983, and worked in the New Ulm diocese from 1977-78. Plaintiff's attorney claims the Duluth Diocese knew of should have known of Fitzgerald's actions and moved him between parishes where he continued to have access to children. The Diocese however says that no abuse complaints against Fitzgerald surfaced prior to late last year.

Milwaukee Archdiocese Files Reorganization Plan; Criticized As Inadequate By Victims

AP reports that the Catholic Archdiocese of Milwaukee yesterday filed its Plan of Reorganization with federal bankruptcy court. Under the Plan, $4 million will be set aside to compensate 125 clergy sex abuse victims-- the smallest per victim payments yet in any of the 11 bankruptcy reorganizations of dioceses around the country. Over 400 individuals filing claims as victims will not receive payment-- including those beyond the statute of limitations, claimants who already received a settlement from the archdiocese and those abused by priests from religious orders or by parish employees. Also $500,000 will be set aside in a lifetime Therapy Fund for victims.  A Q&A on the Plan of Reorganization posted on the Archdiocese's website gives details on the plan. In a letter posted on the Archdiocese's website, Archbishop Listecki said that the Archdiocese will emerge from bankruptcy with at least $7 million in debt, adding:

The archdiocese has historically operated on a balanced budget, so the burden of paying off this debt will certainly be part of our penance.  I wish we wouldn’t have had to spend the past three years and millions of dollars on attorneys’ fees to get to this point, but now we have a Plan that moves us forward.

Abuse victims strongly criticized the Plan as insufficient, one saying: "It is much like being raped all over again...." The victim advocacy group SNAP issued a statement calling the Plan "breath-taking in its callousness, selfishness and arrogance."

Pharmacist Sues After His Firing For Refusing To Sell "Morning After" Contraceptives

Thomas More Society announced yesterday that it has filed a federal lawsuit on behalf a a pharmacist who was fired by from his position at a Jamestown, Tennessee Walgreen's after he told management he would not participate in the sale of Plan B oral contraceptives.  The complaint (full text) in Hall v. Walgreen Company, (MD TN, filed 2/11/2014), alleges that the company previously permitted pharmacist Phillip Hall to refer customers seeking to purchase Plan B to another pharmacist in the store as a way of accommodating Hall's religious objections to selling the emergency contraceptive which he believes is an abortifacient. However the store changed its policy once it began to stock a new over-the-counter version of Plan B.  A factor in Hall's firing apparently was also his action in personally purchasing and disposing of the store's first shipment of 6 boxes of the over-the-counter version as a way to prevent its being available. The complaint alleges that Hall's firing violated Title VII of the 1964 Civil Rights Act, the free exercise clause of the Tennessee constitution and Tennessee's Right to Refuse statute that protects anyone from being required to participate in the performance of an abortion.

Suits Challenge Missouri's and Louisiana's Refusals To Recognize Out-of-State Same-Sex Marriages

Yesterday, the ACLU announced that has filed a state court lawsuit on behalf of 8 Missouri same-sex couples challenging Missouri's statutory and state constitutional provisions that deny recognition to plaintiffs' marriages that were legally entered into in other jurisdictions. The complaint (full text) in Barrier v. Vasterling, (MO Cir. Ct. Jackson County, filed 2/12/2014) contends:

Missouri’s exclusion of married same-sex couples from the protections and responsibilities of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because Missouri’s refusal to recognize the legal marriages of same-sex couples does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.

Reporting on the lawsuit, the Columbia Missourian notes:

Missouri Gov. Jay Nixon drew criticism from gay marriage opponents in November when he directed the state Department of Revenue to accept joint tax returns from same-sex couple who are legally married in other states.... The directive prompted a lawsuit filed by same-sex marriage opponents, and led a Republican lawmaker last week to file articles of impeachment against the Democratic governor.

Meanwhile, in Louisiana an organization that advocates for LGBT equality filed a federal court lawsuit challenging Louisiana's statutory and state constitutional provisions that bar recognition of same-sex marriages validly performed elsewhere. The complaint (full text) in Forum for Equality Louisiana, Inc. v. Barfield, (ED LA, filed 2/12/2014), in claiming that the Louisiana Anti-Recognition Laws violate plaintiffs' equal protection and due process rights, focuses particularly on the state's refusal to accept joint tax returns from married same-sex couples and its refusal to issue birth certificates naming same-sex couples as parents of a child.  The New Orleans Times Picayune reports on the lawsuit.

Court Says Kentucky Must Recognize Valid Same-Sex Marriages From Elsewhere

In Bourke v. Beshear, (WD KY, Feb. 12, 2014), a Kentucky federal district court struck down Kentucky's state constitutional and statutory provisions that deny recognition to valid same-sex marriages performed elsewhere. The court held that "denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review."  Explaining its decision, the court said in part:

Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer. 

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.

The court added that while it was not presented with the question of the validity of Kentucky's ban on issuing marriage licenses for same-sex marriages in the state, "there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question."  WFPL News reports on the decision. [Thanks to Tom Rutledge for the lead.]

7th Circuit Hears Oral Arguments In Notre Dame's Contraceptive Mandate Accommodation Challenge

The U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) yesterday in University of Notre Dame v. Sebelius.  In the case, an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the Affordable Care Act contraceptive coverage mandate accommodation to its self-insured employee plan and its health insurance policies offered to students.  (See prior posting.) The exchanges in yesterday's arguments between Notre Dame's counsel Matthew Kairis and Judge Richard Posner were particularly contentious. (Note-- there is no sound for the first 2:30 minutes of the audio.) Chicago Tribune reports on the oral arguments.  [Thanks to Stephen Blakeman for the lead.]

4th Circuit: North Carolina May Not Issue Pro-Life Plates And Refuse Pro-Choice Ones

In ACLU v. Tata, (4th Cir., Feb. 11, 2014), the U.S. 4th Circuit Court of Appeals held that North Carolina has engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate.  The court rejected the state's argument that this was permissible because specialty plates are government speech:

[W]e agree with the district court “that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech.”.... 

North Carolina ... laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” .... This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .”... Apparently, North Carolina wishes to celebrate only some interests of some of its citizens— namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program.... Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” ... But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

WRAL News reports on the decision.

Alabama Proposal Would Call For Reading Congressional Prayers In Classrooms

Proponents of school prayer have come up with a new approach in Alabama. Proposed House Bill 318 calls for reading prayers from the Congressional Record to teach students about Congress' formal procedures:

At the commencement of the first class of each day in all grades in all public schools, the teacher ... shall, for a period of time not exceeding 15 minutes, instruct the class in the formal procedures followed by the United States Congress.  The study shall include, but not be limited to, a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the House of Representatives or the Senate.

The Anniston Star this week quotes the Rep. Steve Hurst, the bill's sponsor:

Hurst said the bill would help students learn more about history and civics. "They could read the prayer from the day war was declared in World War II," he said. "They could read the prayer the day after Sept. 11."

Random House Affiliate Agrees To Withdraw Scholar's Book On Hinduism To Settle Lawsuit In India

The New York Times and the Financial Times report that in India, the publisher  Penguin India (an affiliate of US publisher Penguin Random House) has agreed to settle a lawsuit brought against it by a Hindu activist group by withdrawing all unsold copies of The Hindus: An Alternative History.  The book, authored by University of Chicago Professor Wendy Doniger and published in 2009, was  criticized by a reviewer as over-eroticizing the religion.  In 2010, Dina Nath Batra, the head of Shiksha Bacho Andolan (Save Education Movement), filed a lengthy notice (full text) with the author detailing passages he found to be "shallow," "distorted" and "riddled with heresies and factual inaccuracies." The notice threatened legal action under Section 153, 153A, 295A, 298, 505(2) of Indian Penal Code. These provisions, among other things, bar insulting religious beliefs and promoting ill-will between religious groups. A lawsuit was filed in 2011, and apparently complaints were also filed with prosecutors.

Under the settlement (full text), Penguin will "recall and withdraw all copies of the book" and no longer "sell, publish or distribute" it.  The recalled copies will be "pulped" by Penguin. In exchange, plaintiffs will withdraw all "civil and criminal cases/ complaints." Currently the book remains listed on Penguin India's website.  Apparently the book will remain available in India on Kindle.  In a statement reacting to developments, Prof. Doniger criticized "Indian law, which makes it a criminal rather than civil offence to publish a book that offends any Hindu, a law that jeopardises the physical safety of any publisher, no matter how ludicrous the accusation."