Sotomayor Is High Court Pick; Here Are Her Religion Decisions

President Obama has nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court. (New York Times). If confirmed by the Senate, Sotomayor will be the first Hispanic to serve on the high court. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998. Here is an overview of her judicial views on free exercise, establishment clause and other religion issues. She wrote more on the issue as a district court judge than she has on the 2nd Circuit.

On the Second Circuit, Sotomayor wrote an important dissent in one case

• Hankins v. Lyght, (2006): In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that RFRA is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Judge Sotomayor wrote the court's opinion in 3 other religion-related cases on the 2nd Circuit:

• United States v. Reimer, (2004)(citizenship revocation of Nazi collaborator);
• Ford v. McGinnis, (2003) (prisoner free exercise);
• Salahuddin v. Mead, (1999) (prisoner free exercise).

Sotomayor was on the 2nd Circuit panel that decided a number of other religion-related cases, many of which were either prisoner or immigration cases. Three that involved other types of religion issues in which Sotomayor joined the court's opinion were:

• Friedman v. Clarkstown Central School District, 75 Fed. Appx. 815 (2003) [LEXIS link] (religious objection to required immunization);
• Fifth Ave. Presbyterian Church v. City of New York, (2002) (use of church grounds as homeless shelter);
• Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002) [LEXIS link] (teacher dismissed for introducing religious material in classroom).
• [UPDATE] Related opinions in Okwedy v. Molinari (1, 2) (Staten Island Borough president complains to billboard company about display of Biblical verses condmning homosexual behavior.) (Discussed at Volokh Conspiracy.)

Sotomayor wrote more extensively on religion clause matters as a federal district judge. Here is a survey of her religion opinions while on the Southern District of New York:

• Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
• Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
• Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
• Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
• DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
• Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
• Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi's placing of menorah in city park during Hanukkah).
  

UPDATE: Here is the White House press release and blog posting on the nomination. Here is the full text of the President's remarks on his choice. Orin Kerr on Volokh Conspiracy points out that if Sotomayor is confirmed, six of the nine Justices will be Catholic. Two are Jewish and Justice John Paul Stevens will be the only Protestant remaining on the Court. (Background data.)

UPDATE 2: The Wall Street Journal on Wednesday posted an interesting interview with Prof. Douglas Kmiec on how Judge Sotomayor's Catholic upbringing may have affected her judicial performance and decisions.

Minnesota Boy's Mother Returns Him For Cancer Treatment

AP reports that 13-year old Daniel Hauser with his mother Colleen returned to Minnesota yesterday, after Daniel's father Anthony urged them to come home. Daniel Hauser, who has Hodgkin's lymphoma, had objected to treatment on religious grounds, and his mother fled with him after a Minnesota court overruled the objections and ordered her and her husband to obtain a new X-ray and select an oncologist for Daniel. The X-ray revealed that a tumor in Daniel's chest had grown. (See prior posting.) The arrest warrant that had been issued for Daniel's mother was lifted after their voluntary return. The FBI believe that Daniel and his mother may have been heading for one of the many alternative cancer clinics in northern Mexico. Daniel is now being evaluated at a hospital in the Twin Cities, according to the Hausers' attorney. CNN reports that while Daniel's mother intends to urge the court to permit alternative cancer treatment, she will allow her son to undergo chemotherapy if that is ordered.

UPDATE: The St. Paul Pioneer Press reports that at a May 26 hearing, a Brwon County judge retruned custody of Daniel Hauser to his parents after the parents agreed to drop their objections to his receiving chemotherapy.

Visiting Sikh Preachers In Austria Shot Over Disagreement With Sermon

In Vienna, Austria on Sunday, a Sikh Temple attended mainly by lower-caste Sikhs who are folowers of the Dera Sach Khand sect was the scene of attacks on two clergymen visiting from India. Sant Niranjan Dass, the Dera head, survived the attack after surgery, but his second in command, Sant Ramanand, died from gunshot wounds. Apparently a sermon being delivered by one of the visiting preachers set off the attacks by higher-caste Sikhs, armed with knives and a handgun, who said the preachers were insulting the Guru Granth Sahib, Sikhism's holy book. Sikhs attending worship services attempted to fight back, even using microphone stands and a frying pan. 16 people were injured. AP reports that 6 suspects are in custody, including four who are asylum seekers who have lived in Austria for some time. In response to the shootings, violence broke out in the Indian town Jalandhar where many followers of the Dera Sach Khand sect of Sikhs-- mainly "untouchables," or Dalits-- live. Yesterday's Times of India reports on the violence in India.

New York's Hate Crime Provisions Upheld In Recently Released Opinion

In People v. Ivanov, (NY Sup. Ct., Sept. 12, 2008)-- decided several months ago but posted online for the first time last Friday-- a New York trial court upheld New York's hate crime statute. The statute enhances applicable penalties when a crime is motivated by bias. Defendant was charged with spray painting and etching swastikas and other anti-Semitic graffiti on buildings (including two synagogues), on automobiles and on sidewalks in an area of Brooklyn Heights near his home. He also placed anti-Semitic flyers on the windshield of parked cars in the area. The court rejected defendant's claim that in order to violate the hate crime law, New York Penal Code. Sec. 485.05, and the related Aggravated Harassment law, New York Penal Law Sec. 240.31, the victims needed to have been selected because of their religion. The court held that as long as a religious, racial, gender, etc. group is targeted, the victim need not necessarily be a member of that class. The court also rejected defendant's constitutional challenges, concluding that the provisions are not vague as applied to this defendant, nor did they violate his free speech rights.

Scientology and Its Leaders In France Go On Trial For Fraud

In France yesterday, the Church of Scientology and six of its leaders went on trial on charges of organized fraud and of illegally prescribing drugs. The Guardian and the Telegraph yesterday both had accounts of the proceedings that target the Church's AGES-Celebrity Centre, and its Freedom Space bookshop in Paris. The case began with a complaint filed over ten years ago by a French woman, Aude-Claire Malton, who claims that at a time she was "psychologically fragile," she was pressured into spending her life savings of 21,000 Euros on life healing lessons, books, an "electrometer" and other products including "purification packs" and vitamins. Three other individuals had also filed complaints against Scientology, but they have withdrawn them after settling out of court.

The indictment by the investigating magistrate charges Scientology is a commercial business that runs a deliberately manipulative system which exploits vulnerable people. Scientology's lawyer says: "It's a trial for heresy: this could only happen in France..." If convicted, the individual defendants each face a possible 1 million Euro fine 10 years in prison. The Celebrity Centre and bookshop could be fined $5 million Euros and closed down in France.

Memorial Day Proclaimed As Day of Prayer For Veterans and Peace

Today is Memorial Day. 36 USC 116 also calls on the President to issue an annual proclamation:

(1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
(2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
(3) calling on the people of the United States to unite in prayer at that time; and
(4) calling on the media to join in observing Memorial Day and the period of prayer.

On Friday, President Obama issued a Proclamation, "Prayer for Peace, Memorial Day, 2009" (full text), providing in part:

As we remember the selfless service of our fallen heroes, we pray for God's grace upon them. We also pray for all of our military personnel and veterans, their families, and all those who have lost loved ones in the defense of our freedom and safety....

I ... do hereby proclaim Memorial Day, May 25, 2009, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer.

Episcopal Church and Break-Away Diocese Litigate Over Retainer Paid To Counsel

As previously reported, the break-away San Joaquin, California Diocese of the Episcopal Church appears poised to lose in its attempt to keep Diocesan property after its affiliation with the more conservative Province of the Southern Cone. A collateral aspect of the property lawsuit filed against the Diocese in 2008 by the Episcopal Church USA is a dispute over use of Diocese funds to pay attorneys' fees in the litigation. Virtue Online on Saturday reported in detail on a state trial court's resolution of the dispute.

Back in 2007, the Diocesan Council paid $500,000 as an advance on legal fees to its law firm, Wild, Carter & Tipton of Fresno, California, in anticipation of litigation that might be filed over property ownership. After the break-off, ECUSA appointed new officials to continue as the Episcopal diocese. They sued the law firm for declaratory relief and to recover the advanced attorneys' fees, invoking several theories of wrongful transfer. The court dismissed most of them, invoking the rule that an agent cannot conspire with its own principal. The court concluded, however, that the claim the transfer was a fraudulent conveyance could succeed, but only if ECUSA is able to prove its allegation that the transfer of funds was undertaken with the intent to injure ECUSA and that the Diocese did not receive reasonably equivalent value in exchange for the fund transfer.

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, The Internationalization of Church-State Issues, (Church and State Issues in America Today, 3 Volumes, Ann W. Duncan & Steven L. Jones, eds., Praeger Publishers, 2008).
• Eric Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, (Forthcoming, University of Miami Law Review, 2009).
• Zachary R. Calo, 'The New Internationals': Human Rights and American Evangelicalism, (Is the Good Book Enough?, David K. Ryden, ed, Forthcoming).
• Jeffrey R. Baker, Whom Would Jesus Cover? A Biblical, Ethical Lens for the Contemporary American Health Care Debate, (Journal of Law & Health, Vol. 23, Fall 2009).

From SmartCILP:

• Darshan Brach, Logic for the Magic of Mindful Negotiation, 24 Negotiation Journal 25-44 (2008).
• Samuel J. Levine, Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, 33 Journal of the Legal Profession 1-29 (2008).
• Robert Steinbuch, Kidneys, Cash, and Kashrut: A Legal, Economic, and Religious Analysis of Selling Kidneys, 45 Houston Law Review 1529-1607 (2009).
• Adrien Katherine Wing, International Law, Secularism, and the Islamic World, 24 American University International Law Review 407-428 (2009).

Somalia Moves Toward Sufi vs. Shabab Warfare

A New York Times report this morning from Somalia says that the African country is moving from clan warfare to religious warfare. In the central part of the country, moderate Sufi militias are winning against the conservative extremist Shabab movement, even though the Shabab is increasingly taking over the capital of Mogadishu on the country's coast.

Court Upholds Montana Law School's Refusal To Fund Christian Legal Society

In Christian Legal Society v. Eck, 2009 U.S. Dist. LEXIS 42980 (D MT, May 19, 2009), a Montana federal district court accepted a magistrate's recommendations and upheld the University of Montana Law School's non-discrimination and open-membership policies for recognized student groups. The court concluded that Christian Legal Society's requirements for voting membership violate those policies and thus disqualify CLS from receiving Student Bar Association funding. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. The court held that the law school's policies are viewpoint neutral and were not intended to single out or limit CLS' rights to free expression. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Marsh v. Florida Department of Corrections, (11th Cir., May 18, 2009), the U.S. 11th Circuit Court of Appeals rejected a free exercise challenge to a policy of the Florida Civil Commitment Center that bars plaintiff from practicing Nisei GoJu-Ryu Karate, a form of martial arts practiced by Zen Buddhists for spiritual enlightenment. The court concluded it did not have to decide whether Turner v. Safley applies to civilly committed detainees as well as those committed criminally. It concluded that even were it to apply the constitutional protections granted to non-detained individuals, the institution's martial arts ban would be upheld as a neutral and generally applicable rule.

In Florer v. Johnson, 2009 U.S. Dist. LEXIS 41960 (WD WA, May 4, 2009), a Washington federal magistrate judge granted plaintiff leave to amend his complaint to allege that that the 2004, 2006 and 2008 kosher and mainline dietary menus offered by the Washington Department of Corrections were nutritionally and religiously inadequate. It rejected defendants' claims that the amended complaints were barred by res judicata.

In Trotter v. Schwarzennegger, 2009 U.S. Dist. LEXIS 41554 (ED CA, May 5, 2009), a California federal magistrate judge dismissed a prisoner's complaint alleging a lack of religious programs at his prison.

Objections To Religious References At Trial of Juvenile Not Preserved For Appeal

In In re A.D., (TX App., May 15, 2009), a 14-year old Mennonite boy challenged the 10-year sentence imposed on him for driving while intoxicated, thereby causing the death of a passenger in his SUV. The boy claims that repeated references at trial to the nature of the religious community in which he and his family reside violated his equal protection rights. He claimed that the jury assessed punishment at least in part based on the beliefs and practices of his Mennonite community. However the a Texas state appellate court concluded that failure to object to the statements at trial forfeited the right to raise them on appeal. Nevertheless, the court reversed and remanded the sentence on other grounds, finding that no evidence was presented to show that efforts were made, as required by Texas law, to prevent removing the juvenile from his home.

Wisconsin Jury Convicts Mother Who Relied on Faith Healing of Homicide

The Chicago Tribune and the Wausau Daily Herald report that yesterday in Wausau, Wisconsin, a state court jury found Leilani Neumann guilty of second-degree reckless homicide in the death of her 11-year old daughter, Kara, whose diabetes went untreated. Instead the girl's parents, relatives and friends prayed for her as her health deteriorated and she finally went into a coma. In closing arguments, the prosecutor described Neumann as a religious zealot who let her daughter die as a test of faith. Defense counsel responded that Neumann did not realize her daughter was so ill and did all she could consistent with her family's belief in faith-healing. Neumann faces a possible sentence of 25 years in prison, and her attorney says an appeal is planned based on the trial court's refusal to allow a faith-healing expert to testify at trial. Neumann's husband, Dale, will be tried separately on similar charges in July.

Connecticut High Court Orders Release of Documents In Clergy Abuse Cases

In Rosado v. Bridgeport Roman Catholic Diocesan Corp., (Ct. Sup. Ct., May 22, 2009, official release date June 2), the Connecticut Supreme Court, over the dissent of Justice Sullivan, granted the requests of 4 newspapers and released some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. According to a report on the case by The Day (New London, CT), the documents have been under seal since 2001 when the Diocese of Bridgeport settled the cases. The court held that all documents filed with the court that it could reasonably rely on in support of its adjudicatory function are presumptively open to the public. (Under this rule, only 15 documents in the cases could be kept sealed.) The court also held that the trial court judge properly refused to recuse himself in the case seeking release of the documents. (See prior related posting.)

Defendant Sentenced To 10 Years For Pot Farm; Religious Defense Found Insincere

Last Monday in a northern California federal courtroom, trial onlookers shouted at federal district judge Marilyn Hall Patel and the federal prosecutor after Patel sentenced defendant Charles "Eddy" Lepp to the mandatory ten years in prison on charges of running a vast marijuana farm known as "Eddie's Medicinal Gardens and Ministry of the Rastafari." According to Law.com, Judge Patel questioned the sincerity of Lepp's attempted religious defense to the charges, saying he did not display much knowledge about Rastafarianism. The judge, who said she thought the mandatory minimum was excessive but had no authority to modify it, said she would entertain a motion to modify Lepp's sentence if Congress changes the law while he is still in prison.

In Greece, Young Muslims Violently Protest Ripping of Quran By Policeman

In Athens, Greece, some 1,500 young Muslims marched to the Parliament building yesterday to protest charges that a police officer tore up a copy of the Qur'an while checking an Iraqi immigrant's identity papers. Today's Haaretz reports that as the crowd shrunk to about 300, violent clashes with police broke out and 46 protesters were arrested. Police released photos of the torn Qur'an and said they will investigate the charges, but emphasized that the isolated incident did not justify the violent reaction.

Inspector General Reports on 2004 IRS Exams of Non-Profit Political Activities

The Treasury Department has posted online a May 12 audit report by the Treasury Inspector General for Tax Administration titled Statistical Profile of Alleged Political Intervention by Tax-Exempt Organizations in the 2004 Election Season. The audit, undertaken at the request of the Senate Finance Committee, examines the Internal Revenue Service's performance in its 2004 initiative to promote compliance with the prohibition against political campaign intervention by non-profits. The report finds:

For the 2004 Initiative, the IRS opened 110 examinations.... Examinations most often were initiated after referrals were received from sources external to the IRS and were almost evenly distributed between churches and charities. The examinations mainly concerned tax-exempt organizations that had allegedly been involved in a single instance of potentially prohibited political intervention and involved issues/campaigns at the national level slightly more than at the State and local level. In addition, examinations involved a wide array of issues, such as distribution of printed and electronic information, as well as verbal statements and direct political contributions....

As of November 2008, the IRS' inventory system showed that the IRS had substantiated prohibited political activity in 76 (71 percent) of the 107 examinations it had completed. While reviewing case information, we found that this number was overstated. Based on our review of case files, the IRS incorrectly coded 14 cases as involving violations of the political intervention prohibition when no violations occurred. While the data still shows that a majority of examinations resulted in the IRS determining that tax-exempt organizations had violated the prohibition, it is important that this information be accurate because it is reported to external stakeholders. We determined that the incorrect coding was due to confusion over how to classify case results on the inventory system.

Liberty University Revokes Recognition of College Democrats

The Washington Post today reports that Liberty University, the conservative Christian school located in Lynchburg, Virginia, has withdrawn recognition of Liberty University College Democrats as a student organization. The move comes as the University adopts a new policy governing student organizations. An e-mail sent to the group from the University's vice-president for student affairs says: "We are unable to lend support to a club whose parent organization stands against the moral principles held by Liberty University." (Full text of new policy and of e-mail revoking College Democrats' recognition). Maria Childress, the club's adviser, says she is trying to appeal the decision to the school's chancellor, Jerry Falwell Jr. The Lynchburg (VA) News-Advance reports on a statement Falwell made today regarding the suspension:

"That club still has the right to exist," Falwell said, although it cannot use the university’s name in its activities. "They still can meet on campus," in certain rooms, he said. "There is absolutely no animosity at all toward any of these kids. They are good, Christian kids who sit with me at ball games. I just hope they find a pro-life family organization to affiliate with so they can be endorsed by Liberty again."

Virginia Governor Timothy Kaine issued a statement on Democratic national Committee letterhead urging the University to reverse its decision. [Thanks to both Don Byrd and Bob Ritter for the lead.]

Senate Passes Resolution Remembering M.S. St. Louis Anniversary

This week the U.S. Senate passed S. Res. 111, "recognizing June 6, 2009, as the 70th anniversary of the tragic date when the M.S. St. Louis, a ship carrying Jewish refugees from Nazi Germany, returned to Europe after its passengers were refused admittance to the United States." The resolution passed May 19 by Unanimous Consent.

California Law Protects Closed Church From Landmarking

In California-Nevada Annual Conference of the United Methodist Church v. City and County of San Francisco, (CA Dist. 1 App., May 20, 2009), a California state appellate court held that the San Francisco Board of Supervisors exceeded its jurisdiction in adopting a resolution beginning the procedure to designate First St. John‟s United Methodist Church as a landmark. The court held that state law permitting religiously affiliated organizations to exempt their noncommercial property from landmarking regulation applies even though the building is no longer being used as a place of worship. The court concluded that the purpose of the state law exclusion was to allow religious institutions to sell their dilapidated churches for a profit. BCN reported on the decision yesterday.

Court Refuses To Decide RLUIPA Claim On Ripeness Grounds

Congregation Etz Chaim v. City of Los Angeles, 2009 U.S. Dist. LEXIS 42345 (CD CA, May 5, 2009), is the latest decision in a dispute that began in 1996 over whether the city of Los Angeles would issue a conditional use permit to members of a synagogue to allow them to conduct religious services at a house in Los Angeles. A 2001 settlement of a RLUIPA lawsuit filed by the congregation was overturned by the 9th Circuit in 2007 on the ground that the settlement process cannot be used to evade state law requirements for notice and a hearing for the affected community before a conditional use permit is granted. (See prior posting.) In May 2008 the Congregation filed a new conditional use permit application with the city, but also asked the court to move ahead with a decision on its original RLUIPA claim. The court refused to do so on ripeness grounds, holding:

Over ten years have passed since the City denied plaintiff's CUP application, and the Congregation has recently filed a second application, which the City is currently considering. This second CUP application presents the first opportunity for the City to consider the Congregation's request in light of RLUIPA..... [G]ranting of the second CUP application would moot the instant action. Furthermore, it does not appear that the Congregation will be immediately harmed by the Court's decision to dismiss the instant action on ripeness grounds. The City has not taken any action to date to enforce the original denial of the CUP.... [T]he threat of hardship to the Congregation remains speculative.

Republicans Delay Committee Vote On 7th Circuit Nominee Over His Establishment Clause Decisions

At the request of Republican members of the Committee, the Senate Judiciary Committee postponed a vote that was to have taken place yesterday on the nomination of Indiana district judge David Hamilton to serve on the U.S. Seventh Circuit Court of Appeals. According to yesterday's Indianapolis Star, Alabama Senator Jeff Sessions said that Republicans needed more time to review Hamilton's record on the district court. Sessions pointed particularly to Hamilton's rulings holding that the opening of sessions of the Indiana House of Representatives with sectarian prayer was a violation of the Establishment Clause. (See prior posting.) Subsequently the decision was reversed on standing grounds by the 7th Circuit. Hamilton testified at his nomination hearings that the law on taxpayer standing changed between his decision and the reversal by the 7th Circuit.

Final Defendant Settles In Sex Abuse Case Against Seattle Archdiocese

Yesterday's Tacoma (WA) News Tribune reports that the second of two plaintiffs in a priest sex abuse case brought against the Catholic Archdiocese of Seattle has agreed to settle for $700,000 following his testimony at trial. The Archdiocese gave plaintiff a short deadline to accept, after jurors raised some questions about the testimony. Plaintiff had already settled with other potential defendants, receiving some $600,000 from them. In the current trial, another plaintiff settled earlier this week. (See prior posting.) Both had allegedly been abused by former priest Patrick G. O’Donnell.

Pending British Equality Bill Creates Only Narrow Exemption For Religious Objections

As previously reported, in April Britain's new Equality Bill was introduced into the House of Commons. The Explanatory Notes published by the Equalities Office devoted several pages to the exemption from the provisions on sexual orientation discrimination for organized religious groups. [Scroll to pp. 85-89 of the PDF document]. Wednesday's London Telegraph reported that Deputy Equalities Minister Maria Eagle speaking to the delegates at the Faith, Homophobia, Transphobia, & Human Rights conference in London has indicated that the exemption will be read narrowly. She said in part:

The circumstances in which religious institutions can practice anything less than full equality are few and far between. While the state would not intervene in narrowly ritual or doctrinal matters within faith groups, these communities cannot claim that everything they run is outside the scope of anti-discrimination law. Members of faith groups have a role in making the argument in their own communities for greater LGBT acceptance, but in the meantime the state has a duty to protect people from unfair treatment.

Does "WWJD" Violate Fair Debt Collection Practices Act?

The federal Fair Debt Collection Practices Act prohibits debt collectors from engaging in "conduct the natural consequence of which is to harass, oppress, or abuse any person" (15 USC 1692d) or using "unfair or unconscionable means "(15 USC 1692f) in collecting amounts owed by consumers. In Neill v. Bullseye Collection Agency, 2009 U.S. Dist. LEXIS 41931 (D MN, May 14, 2009), plaintiffs argued that placing "WWJD" ("What would Jesus do?") in the top corner of collection letters violated these provisions. They claimed that the practice "has the effect of invoking shame or guilt in alleged debtors and 'portray[s] the debtor as a sinner who is going to hell.'" The court denied defendant's motion to dismiss the claim, finding that plaintiffs had stated enough facts to make out a plausible claim. The court put off any consideration of the constitutionality of the statute.

French Government Agency Combatting Cults Releases Report

On Tuesday, the French government agency Mission interministérielle de vigilance et de lutte contre les dérives sectaires, (MIVILUDES), i.e. "Interministerial Mission for Monitoring and Combating Cultic Deviances," released its 2008 annual report (full text in French). France 24 says the report:

warns that religious sects are on the increase in France, tripling in the last 15 years to reach at least 600 different movements across the country. The report also denounces a huge increase in unqualified therapists, warning that sects are using the personality coaching and self-help trends to target impressionable people.

Digital Journal says that 10 pages in MIVILUDES' 199-page report are devoted to criticizing the activity of sects in the United Nations and the OSCE. The report says that non-governmental organizations are attempting to limit MIVILUDES influence in the UN and OSCE, and that the Church of Scientology has particularly taken aim at MIVILUDES.

Priest's Conviction on Child Molestation Charges Upheld

In State of Wisconsin v. McGuire, (WI Dist. II Ct. App., May 20, 2009), a Wisconsin state appellate court upheld the 7-year prison term imposed on a former, once-prominent Jesuit priest who was convicted of molesting two teenage boys in the late 1960's. Priest Donald McGuire was not charged until 2005, and was tried in 2006. The statute of limitations had not run because McGuire was not in Wisconsin in the intervening years, thus tolling the statute. The court rejected McGuire's claims that the 36-year delay in bringing charges against him prejudiced his defense and violated his constitutional rights; that he received ineffective assistance of trial counsel; and that the trial court had admitted unduly prejudicial evidence. Yesterday's Chippewa Valley (WI) Newspapers reporting on the appeal said that the now 78-year old priest was also sentenced earlier this year by a federal court to 25 years in prison for traveling across state lines and out of the country to have sex with a teenager between 2000 and 2003.

Same-Sex Marriage Not Yet A Done Deal In New Hampshire

As previously reported, New Hampshire Governor John Lynch told the legislature that he would sign the same-sex marriage bill it had passed only if it made changes to grant stronger protections to religious institutions. According to yesterday's Concord Union Leader, the state Senate on Wednesday agreed to the governor's requested changes by a vote of 14-10. However later in the day, the state House of Representatives in a close vote (188-186) refused to adopt the Governor's changes, and by a larger vote (207-168) asked the Senate to negotiate a compromise.

Meanwhile, as gay marriage seems to be gaining momentum in state legislatures, Pew Forum yesterday published a Q&A with Professors Ira "Chip" Lupu and Robert W. Tuttle, titled: A Clash of Rights? Gay Marriage and the Free Exercise of Religion.

4 Men Arrested In New York Charged With Plot To Bomb Synagogues

According to today's New York Times, four upstate New York men were arrested last night, charged with plotting to bomb two synagogues in the Bronx (as well as shoot down planes at Stewart Air National Guard base in Newburgh, NY). The criminal complaint (full text) filed against them charges them with conspiracy to use weapons of mass destruction and conspiracy to acquire and use anti-aircraft missiles. The four men, all U.S. citizens who are Muslims, were arrested after planting what they believed to be bombs in cars outside the Riverdale Temple and the Riverdale Jewish Center in the Bronx. In fact, the bombs were fake, having been provided by an FBI informant. The US Attorney's Office for the Southern District of New York issued a press release yesterday announcing the arrests.

Elementary Teacher Sues Charging Religious Discrimination and Harassment

In Bakersfield, California, Bruce Neal, who has taught for 20 years in the Edison School District, has filed a federal civil rights lawsuit alleging that that former Orangewood Elementary School Principal Mark Holmes engaged in religious discrimination and harassment against him from 1999 to 2008. Yesterday's Californian reports that Neal, a second grade teacher who is also a rabbi, says that the former principal forced him to remove his yarmulke (skullcap). Neal also alleges that he was criticized for his religious diet and clothing and subjected to negative comments from co-workers about being Jewish. In 2008, Principal Holmes, who is the target of Neal's complaints, resigned after he was charged by school officials with fostering an environment in which teachers were free to "terrorize, gossip, tattle."

Permit Requirement For Church's Use As Homeless Shelter Upheld

In Westgate Tabernacle, Inc. v. Palm Beach County, (FL 4th Dist. Ct. App., May 20, 2009), a Florida state appellate court upheld Palm Beach County's application of its zoning rules to Westgate Tabernacle's use of its church building as a homeless shelter. The court rejected challenges under the Florida Religious Freedom Restoration Act and federal RLUIPA, finding that merely requiring a church to apply for a conditional use permit is not a substantial burden on its free exercise. Also plaintiff did not show that running a shelter at a specific location was fundamental to its religious exercise. Yesterday's South Florida Sun-Sentinel reported on the decision.

Ireland's Massive Report On Clergy Sex Abuse Released

Yesterday Ireland's Commission to Inquire Into Child Abuse released its mammoth 2,600-page report on child abuse at Catholic institutions in Ireland from 1936 to the present. The 30-page Executive Summary and the text of the full report are both available online, as are transcripts of testimony that the Commission took in 2004 and 2005. BBC News summarized the findings:

The report, nine years in the making and covering a period of six decades, found thousands of boys and girls were terrorised by priests and nuns. Government inspectors failed to stop beatings, rapes and humiliation....

The five-volume study concluded that church officials encouraged ritual beatings and consistently shielded their orders' paedophiles from arrest amid a "culture of self-serving secrecy". The commission found that sexual abuse was "endemic" in boys' institutions, and church leaders knew what was going on.

Victims of the abuse-- particularly those who had testified before the Commission --were particularly upset by the fact that the report will not be used as the basis for additional criminal prosecutions. In part this is because one of the largest religious orders involved-- Christian Brothers--obtained a court order in 2004 to keep all its members discussed in the report anonymous. Police were called to the news conference in which the report was released as victims who were prevented from attending began to object. BBC News has reactions of abuse victims, church leaders and political leaders.

Court Dismisses Some Discrimination Claims Brought By Muslim Researchers

In Ridha v. Texas A&M University System, 2009 U.S. Dist. LEXIS 41290 (SD TX, May 15, 2009), a Texas federal district court dismissed some, but not all, of the claims brought by husband and wife medical researchers against various defendants alleging discrimination on the basis of race, national origin and religion. Both plaintiffs are Iraqi Muslims (one Arab and one Kurdish) who left Iraq after the U.S. invasion in 2003. Both plaintiffs, who conducted research in the Reproductive Sciences Lab at Texas A&M, alleged among other things that various individuals who worked with them ridiculed their Muslim faith and threw animal urine and feces on their prayer rugs. Plaintiffs also allege that they were fired from their positions in retaliation for their complaints about harassment and discrimination. Among other things, the court held that the University System was not plaintiffs' employer for purposes of Title VII and that the 11th Amendment shields the University from damage claims for alleged 1st Amendment violations. It also held that claims under 42 USC Sec. 1981 can be brought for racial discrimination (including discrimination on the basis of ethnicity), but not for religious discrimination.

Taliban Terrorize Peshwar, Pakistan In Drive Against Un-Islamic Activities

Today's Wall Street Journal reports from Peshawar, Pakistan on a terror campaign by the Taliban on businesses they consider "un-Islamic." They have already used car bombs to destroy an Internet cafe, women's clothing stalls, and have threatened a video store. Taliban have also bombed girls' schools and Sufi religious shrines. The Journal reports further that while the Taliban are unlikely to seize Peshwar, the capital of Pakistan's North West Frontier Province:

through a campaign of bombings, kidnappings and murders, the militants are increasingly imposing on Peshawar the rigid religious restrictions that are already enforced in Swat, Waziristan, and other northwestern areas that have succumbed to Taliban control. Such "Talibanization" is a grim setback for a storied city that braced itself for revival when a secular Pashtun nationalist movement, the Awami National Party, won provincial elections last year, ousting a coalition of religious parties.

Court Dismisses Religious Group's Challenge To Support Order

In Christ's Household of Faith v. Ramsey County, (D MN, May 18, 2009), a Minnesota federal district court dismissed a number of federal challenges to a state court's order that a religious group, Christ's Household of Faith, as a "payor of funds" send child support and spousal maintenance payments (including arrearages) to the Ramsey County (MN) Department of Community Services for Patricia Rooney who had been awarded the amounts in her divorce proceeding. Michael Rooney, Patricia's former husband who had originally been ordered to pay the amounts, was a member of Household of Faith whose members give up most of their property, live communally and merely receive a small stipend of less than $100 per month. In the 20 years since the Rooneys divorce, the parties have been involved in numerous lawsuits challenging state determinations of the value of Michael's services to CHOF and CHOF's liability to pay the child support owed by Michael. The court dismissed the challenges under the Rooker-Feldman doctrine that calls for dismissal of cases in which federal district courts are called on to review and reject a state court judgment. Yesterday's Minneapolis Star-Tribune reports on the decision.

Iran's Guardians Council Approves 4 Presidential Candidates

In Iran, the country's 12-member Guardians Council has selected the 4 candidates who will run in the Presidential election next month. According to a report today from AFP, a total of 475 Iranians (including 42 women) had registered as possible candidates. The Council is made up of six clerics picked by the supreme leader and six jurists chosen by the head of the judiciary. The approved candidates are incumbent president Mahmoud Ahmadinejad, former head of the Revolutionary Guards Mohsen Rezai (a conservative), former prime minister Mir Hossein Mousavi (a moderate reformist) and ex-parliament speaker Mehdi Karroubi (a reformist).

Teen and Mother Fail To Appear At Hearing On Cancer Treatment For Boy

Thirteen-year old Daniel Hauser and his mother Colleen Hauser failed to appear at their scheduled court hearing in New Ulm, Minnesota yesterday. They apparently have gone into hiding rather than comply with a court order to take steps toward obtaining chemotherapy for Daniel's Hodgkin's lymphoma. They object on religious grounds to the treatment. (See prior posting.) In accordance with the court's mandate, Daniel did obtain a new chest X-ray on Monday. It showed that his tumor had returned to its size before the one chemotherapy treatment he had. The Minneapolis Star-Tribune reports that Daniel's father, Anthony Hauser, told the court that he does not know his wife's and son's whereabouts. Brown County District Judge John Rodenberg held Colleen Hauser in contempt of court. and ordered that Daniel be placed in foster care for oncology treatment as soon as he is found. AP reports that Daniel's father, Anthony, now believes his son should restart chemotherapy.

NY Town Charges Zoning Violations In Cow and Chicken Slaughter

Lower Hudson Journal News reports on motions that were granted in the Ramapo, New York town court yesterday in two cases pitting zoning authorities against some of the town's Orthodox Jewish population. In one case, the judge granted owners of a yeshiva more time to answer charges that they violated zoning regulations when they slaughtered a cow in the school's back yard. In the other case, the court permitted organizers of last fall's kaparot ceremony involving slaughter of 13,000 chickens in a parking lot in Monsey (NY) to withdraw their guilty pleas and go to trial on zoning violation charges. Officials charged defendants with washing slaughtered chicken remains down a storm sewer and with leaving the parking lot littered with trash and chicken remains. (See prior posting.)

Reports On Two Priest Sexual Abuse Cases

The Seattle Times reported yesterday that a settlement has been agreed to in mid-trial by one of two plaintiffs suing the Catholic Archdiocese of Seattle over sexual abuse by a priest in 1976. The offending priest, Patrick O'Donnell, was transferred from Spokane to Seattle without Spokane Bishop Bernard Topel telling Seattle Church officials that O'Donnell was a repeat pedophile. 87-year old former Seattle Archbishop Raymond Hunthausen testified at the trial yesterday. Yesterday's Seattle Post-Intelligencer describes his testimony in some detail. The second plaintiff in the case has not settled, and the trial continues on his claims.

Meanwhile, the Wilmington, Delaware News-Journal reports on another ongoing priest abuse case. A civil suit was filed in Delaware state court by a 46-year old man against the Oblates of St. Francis de Sales and Salesianum School. Plaintiff says he was abused from 1982-1984 by now-deceased Rev. Richard Grant who was principal of the school. This is one of more than a dozen suits that have been filed against the Oblates and several of their priests since Delaware opened a two-year window for old claims to be filed through its 2007 Child Victim Act.

Laid-Off Church and Synagogue Employees Find No Unemployment Benefits

UPI today, in a report from Richmond, Virginia, says that many people recently laid off their jobs by churches and synagogues are surprised to find that they are not entitled to state unemployment benefits. Under Virginia law, churches are exempt from paying unemployment taxes. (Va. Code § 60.2-213(B)) The Catholic Diocese of Richmond has a voluntary self-insurance arrangement with the state under Va. Code § 60.2-501. Laid-off workers file for unemployment, and if the claim is approved, the state bills the Diocese for the actual amount of benefits paid out to the former employee.

Israel's High Court Orders Equal Funding For Non-Orthodox Conversion Classes

Jerusalem Post reports that Israel's High Court of Justice today handed down a landmark ruling requiring the government to fund Reform and Conservative institutions that offer classes to prepare individuals for conversion to Judaism, on an equal basis with Orthodox bodies. Ruling in a case brought by the Israeli Movement for Progressive Judaism, a 3-judge panel of the Court ordered the Immigration and Absorption Ministry to set criteria for equal funding, and to retroactively fund the organizations for the past three years. Justice Dorit Beinisch, president of the Supreme Court , wrote in her opinion that the government must allow different conversion institutions to "coexist" as a matter of "freedom of religion and pluralism." Her opinion suggested that an alternative would be for the government to stop funding private Orthodox conversion classes.

Meanwhile, JTA reports that in another ruling yesterday, Israel's Supreme Court ordered the High Rabbinic Court to explain why, in a decision last year, it retroactively nullified conversions that had been carried out through special conversion courts headed by Rabbi Haim Druckman. (See prior posting.)

Conference Discusses Legal Issues In Sharia-Compliant Financing

Reuters reports on a conference of Islamic scholars held yesterday in Bahrain to discuss legal issues raised by Sharia-compliant financing arrangements. Western business partners generally want contractual provisions that stipulate British law will govern commercial contracts-- and any arbitration proceedings to settle contractual disputes. However strict interpretations of Islamic law preclude this because Sharia does not accept human-made law that is not derived from Islam. Scholars urged parties to contracts to build in arbitration provisions that refer disputes to Sharia-based arbitration centers, like Dubai's International Islamic Centre for Reconciliation and Commercial Arbitration. However Westerners are reluctant, and Dubai's center, created in 2005, has yet to hear a case.

As international economic problems increase, courts are beginning to see disputes involving Sharia-compliant real estate financing. One of the issues being raised is whether, in loans structured as purchases by the bank on behalf of the borrower to comply with Islamic law, courts should look to the form of the transaction and apply laws applicable to real estate sales, or should instead look through form to substance and apply rules applicable to loans.

Federal Lawsuit By Jews for Jesus Seeks To Enjoing Park Permit Regulations

Following a state court ruling earlier this year dismissing criminal charges against "Jews for Jesus" missionary Susan Mendelson who was arrested for violating park rules in distributing literature in Burns Park in the Town of Oyster Bay, New York (see prior posting), a federal court lawsuit seeking to enjoin further enforcement of the Town's permit regulations has been filed. The challenged code and regulations require a permit to distribute leaflets in Town parks. Mendelson refused to limit her distribution to a fixed table location in the park as authorities demanded. The complaint (full text) in Jews for Jesus, Inc. v. Town of Oyster Bay, (ED NY, filed 5/7/2009), alleges that Town of Oyster Bay Code § 168-16 and Regulations promulgated under it, as well as the town's actions against her, violate the 1st and 14th amendments as well as the free speech provisions of New York's constitution. The complaint also seeks a declaratory judgment. An Alliance Defense Fund release yeaterday announced the filing of the lawsuit.

Oklahoma Governor Signs 10 Commandments Bill

The Tulsa World reports that Oklahoma Governor Brad Henry on Monday signed House Bill 1330 [Word .doc] that authorizes placement of a Ten Commandments monument on the State Capitol grounds. The new law may well invite litigation. Anticipating that, the drafters specified that the Oklahoma monument-- which will be paid for by private funds-- should have the same text as the monument on the Texas State Capitol grounds that was upheld against an Establishment Clause attack in a 2005 U.S. Supreme Court decision, Van Orden v. Perry. (See prior posting.)

Indian Christians Applaud Results of Parliamentary Elections

Last weekend's Parliamentary elections in India resulted in the Indian National Congress, leading a secular alliance, winning the largest number of seats. (Wall Street Journal analysis). (Official results.) According to UCAN, Christian groups are elated. The All India Christian Council applauded the electorate's "consummate and decisive" rejection of divisive and sectarian political forces. Christians had feared that that National Democratic Alliance, led by the pro-Hindu BJP (Bharatiya Janata Party), would win. BJP is the political arm of right wing Hindu groups that want to create a Hindu theocracy in India.

Supreme Court Rejects Discrimination Claim By Muslim For His Post- 9/11 Arrest

Today in Ashcroft v. Iqbal, (Sup. Ct., May 18, 2009), the U.S. Supreme Court reversed the 2nd Circuit and rejected 1st and 5th Amendment Bivens claims brought by a Pakistani-Muslim who was arrested in the U.S. in the wake of the September 11 attacks. The complaint alleged that the former U.S. Attorney General and the former Director of the FBI subjected Iqbal to harsh conditions of confinement as a person of high interest because of his race, religion and national origin. In a 5-4 decision written by Justice Kennedy, the majority concluded that Iqbal's complaint failed to state sufficient facts to support a claim for purposeful discrimination:

Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.... [T]o state a claim ... respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral,investigative reason but for the purpose of discriminating on account of race, religion, or national origin....

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.

Justices Souter, Stevens, Breyer and Ginsburg dissented. SCOTUS Wiki has links to all the briefs that were filed in the case. The New York Times reports on today's decision. (See prior related posting.)

Magazine Discloses Rumsfeld Embellished Top Secret Reports To Bush With Bible Quotes

GQ yesterday published a long article critical of former Secretary of Defense Donald Rumsfeld. One of the things it disclosed for the first time was Rumsfeld's practice of often placing Biblical verses on the cover sheet of the top secret Worldwide Intelligence Update delivered daily to President George W. Bush and a few top military leaders. Here is GQ's slide show of a number of the cover sheets that carry Biblical quotes to embellish images from the previous day's battle front. GQ explained the origin of the cover sheets:

These cover sheets were the brainchild of Major General Glen Shaffer, a director for intelligence serving both the Joint Chiefs of Staff and the secretary of defense. In the days before the Iraq war, Shaffer’s staff had created humorous covers in an attempt to alleviate the stress of preparing for battle. Then, as the body counting began, Shaffer, a Christian, deemed the biblical passages more suitable. Several others in the Pentagon disagreed. At least one Muslim analyst in the building had been greatly offended; others privately worried that if these covers were leaked during a war conducted in an Islamic nation, the fallout—as one Pentagon staffer would later say—"would be as bad as Abu Ghraib."

But the Pentagon’s top officials were apparently unconcerned about the effect such a disclosure might have on the conduct of the war or on Bush’s public standing. When colleagues complained to Shaffer that including a religious message with an intelligence briefing seemed inappropriate, Shaffer politely informed them that the practice would continue, because "my seniors"—JCS chairman Richard Myers, Rumsfeld, and the commander in chief himself—appreciated the cover pages.

[Thanks to Scott Mange for the lead.]

UPDATE: New York Times coverage this morning of the CQ article quotes former Pentagon officials as saying that they doubted President Bush regularly saw the Pentagon briefing, which was less complete than his daily intelligence briefing. One former Pentagon spokesman said while he had no recollection of the Biblical quotes, he doubted that Rumsfeld would have tolerated them or used them to influence the White House.

Catholic High School Sues San Diego Under RLUIPA

Yesterday's San Diego Union Tribune reports that a California Catholic girl's high school, Academy of Our Lady of Peace, has filed a RLUIPA lawsuit in federal court. It challenges the the refusal by San Diego's City Council to permit it to demolish three homes near campus in order to construct a new classroom building and parking structure. Here is the school's overview of its proposed modernization project.

Coney Island Amphteater Foes Invoke Law Protecting Nearby Religious Institutions

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park plan to use a city law designed to protect religious congregations to fight the project. Yesterday's New York Daily News and YourNabe last week report that opponents are invoking New York City's law prohibiting amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Both Sea Breze and nearby Temple Beth Abraham say that concerts at the new facility will in fact disrupt their services. Borough President Marty Markowitz argues that the new project will turn the park into a prime venue for summertime entertainment. Opponents of the project, however, are gathering signatures on a petition and say they will take Markowitz to court. [Thanks to Steven Sholk and to Joel Katz (Relig. & State In Israel) for the lead.]

Turkish Protesters Want Country To Remain Secular

In Ankara, Turkey yesterday, according to Reuters, some 20,000 protesters marched, calling for the resignation of Prime Minister Tayyip Erdogan. The demonstrators, carrying banners reading "Secular Turkey will stay secular," object to what they believe is Erdogan's moves to make Turkey more Islamic. Protesters were also concerned with the government's handling of the economy.

Recent Articles of Interest

From SSRN:

• Jeremy J. Patrick, Blasphemy in Pre-Criminal Code Canada: Two Sketches, (May 15, 2009).
• Andreas A Jobst, Peter Kunzel, Paul S. Mills, & Amadou N. R. Sy, Islamic Bond Issuance - What Sovereign Debt Managers Need to Know, (International Journal of Islamic and Middle Eastern Finance and Management, Vol. 1, No. 4, pp. 330-344, 2008).

From SmartCILP and elsewhere:

• Hon. Edith Brown Clement, Public Displays of Affection...for God: Religious Monuments After McCreary and Van Orden, 32 Harvard Journal of Law & Public Policy 231-260 (2009).
• John M. Breen, Neutrality in Liberal Legal Theory and Catholic Social Thought, 32 Harvard Journal of Law & Public Policy 514-597 (2009).
• William C. Duncan, Speaking Up For Marriage, 32 Harvard Journal of Law & Public Policy 915-930 (2009).
• Stanley W. Carlson‐Thies, Faith-Based Initiative 2.0: The Bush Faith-Based and Community Initiative, 32 Harvard Journal of Law & Public Policy 931-947 (2009).
• Stanley Fish, To the Pure All Things Are Pure: Law, Faith, and Interpretation In the Prose and Poetry of John Milton [abstract], 21 Law & Literature 78-92 (2009).
• Eli Wald, The Rise and the Fall of the WASP and Jewish Law Firms, 60 Stanford Law Review 1803-1866 (2008).
• Michael Whine, Devising Unified Criteria and Methods of Monitoring Anti-Semitism, Jewish Political Studies Review 21:1-2 (Spring 2009).

New York Court Confirms Israeli Arbitral Award In Etrog Dispute

In Schwartzman v. Harlap, (ED NY, April 13, 2009), a New York federal district court granted a petition to confirm a foreign arbitral award in a dispute between an etrog grower and the grower's exclusive distributor. An etrog (citron) is a fruit used in the worship services by Jews on the holiday of Sukkot. Last week's Jewish Press summarized the case (which had been brought under Chap. 2 of the Federal Arbitration Act):

The case concerned Yaakov Charlop, founder of the popular Esrog Warehouse in Queens who had contracted to purchase esrogim from Betzalel Schwartzman, who represents the renowned Schwartzman Esrogim grown in Israel. Charlop withheld payment of $66,000 because he claimed that the esrogim were of substandard quality.... [,]that he was supposed to be the exclusive distributor of Schwartzman esrogim in the United States and that Betzalel Schwartzman, proprietor, had sold esrogim to other dealers here, thus violating the agreement.

In a handwritten agreement ... Rabbi Eliezer Stern, a respected scholar and head of the Belzer Beth Din in Bnei Brak, was specified ... as the designated Rav to whom each side would bring any disagreements.... Charlop claims now that he was unaware at that time that Rabbi Stern was also to serve as the ... kosher certifier of the esrogim.

The case was heard in Israel at the Belzer Beth Din... [which] decided against Charlop and ordered him to pay $66,000 to Schwartzman. Charlop felt that the Beth Din had a conflict of interest... [that] predisposed the Beth Din to be partial to Schwartzman.... Charlop then brought the disagreement to Federal Court in the United States, where ... Judge Cogan ruled against dismissing the Beth Din decision, writing that, "Respondent cannot use this court to obtain a second bite of the esrog."

[Thanks to Joel Kaatz (Relig. & State In Israel) for the lead.]

Obama Speaks At Notre Dame Over Objections of Pro-Lifers

As I post this, President Obama is delivering his address at the University of Notre Dame's graduation, and receiving an honorary degree. In his speech (full text as prepared for delivery) he addressed both the controversy over his receiving an honorary degree and the broader abortion controversy in the United States. On the honorary degree, he quipped, comparing himself to former Notre Dame president Father Theodore Hesburgh who was in attendance and who holds the record for the most honorary degrees ever awarded to one person:

I want to thank you for this honorary degree. I know it has not been without controversy. I don't know if you're aware of this, but these honorary degrees are apparently pretty hard to come by. So far I'm only 1 for 2 as President. Father Hesburgh is 150 for 150.

On the broader abortion issue, he said:

Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions.

So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."

Understand - I do not suggest that the debate surrounding abortion can or should go away. No matter how much we may want to fudge it - indeed, while we know that the views of most Americans on the subject are complex and even contradictory - the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

Passionate protests preceded Obama's speech. On Friday, WNDU reported that seven pro-life protesters-- including former Presidential candidate Alan Keyes-- were arrested when they insisted on bringing their protest onto campus. Also last week, the group Stop Obama Notre Dame issued a press release quoting the words of the honorary degree, and then quoting John Paul II, contending that this demonstrates "that Notre Dame has contradicted Church teaching by her words and actions." However in introducing Obama, Notre Dame President Rev. John Jenkins had profuse praise for Obama, and for his willingness to speak despite the controversy over his appearance.

Census Will Reach Out To Amish Community

Today's Wisconsin State Journal reports that among the special effors being made by federal census officials to make sure that next year's head count is accurate is outreach to the Amish community. Historically the Amish have not been counted accurately. A Census Bureau spokesperson said that the Bureau hopes to include Wisconsin Amish in a partnership program that uses local volunteers to create "complete count committees." The committees, using local business, education and faith-based groups, help spread the word about the importance of responding to the census. The Wisconsin Amish population is currently estimated to be 15,525.

Judge Says Defendant Nun Can Wear Habit During Her Jury Trial

A Kane County, Illinois judge has ruled that Sister Marie Marot can wear her religious habit when she stands trial on a traffic ticket on Monday. Friday's Arlington Heights (IL) Daily Herald reports that the 24-year old nun is charged with disobeying a traffic control device in connection with a 2007 auto accident in which she drove her van through a traffic light and struck a smaller car car whose 16-year old back-seat passenger was killed in the crash. Prosecutors argued that Marot's religious garb might prejudice the jury in her favor, but defense attorneys say that her religious beliefs require her to wear the habit-- a tunic and veil.

UPDATE: On May 19, a jury found Sister Marie Marot not guilty. (Sun Times News Group.)

Developments In Two Episcopal Church Claims To Property of Breakaway Parishes

In Pennsylvania, the Episcopal Church has filed a complaint (as Plaintiff-in-Intervention) in an ongoing lawsuit, seeking a declaratory judgment that it, rather than the break-away diocese that has affiliated with the Anglican Province of the Southern Cone, is the proper authority to control the real and personal property of the Diocese of Pittsburgh. The complaint-in-intervention (full text) in Calvary Episcopal Church v. Right Reverend Robert William Duncan, (PA Com. Pl., filed 5/12/2009), also asks for an order requiring breakaway Bishop Robert Duncan and his followers to vacate the property of the Pittsburgh diocese and to furnish an accounting. A report by Virtue Online on Friday describes the lawsuit from the perspective of the breakaway diocese.

Meanwhile in California, an Orange County Superior Court judge has refused to impose sanctions for filing a frivolous claim on St. James Church, which disaffiliated from the Episcopal Diocese of Los Angeles in 2004. Steadfast in Faith reports that the case began as suit by the Episcopal Diocese against St. James and two other breakaway parishes. (Timeline.) They in turn filed anti-SLAPP motions, which were denied by the California Supreme Court. (See prior posting.) The Episcopal Diocese sought sanctions arguing that the anti-SLAPP motions were frivolous. St. James has filed a petition for certiorari with the U.S. Supreme Court in the underlying lawsuit. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Burton v. Clark, 2009 U.S. Dist. LEXIS 39330 (ED CA, April 23, 2009), a California federal magistrate judge dismissed a Jewish prisoner's challenges to his being removed from a kosher diet plan and being placed instead on a Religious Vegetarian diet. The court also rejected plaintiff's claim that he was prevented from attending religious services.

In Farrakhan v. Johnson, 2009 U.S. Dist. LEXIS 40342 (ED VA, May 13, 2009), a Virginia federal district court rejected an inmate's free exercise and equal protection claims that he was denied a religious diet, was forced to eat while fasting and was forced to clean and relieve himself in view of female officers. The court held that he had not shown that his claims are rooted in his religious beliefs.

In Evans v. Albany County Correctional Facility, 2009 U.S. Dist. LEXIS 40630 (ND NY, May 14, 2009), a New York federal district court rejected a Rastafarian prisoner's claim that his receiving the "wrong meals" a number of times (instead of his vegetarian diet) violated his free exercise rights. UPDATE: The magistrate's recommendation in the case is at 2009 U.S. Dist. LEXIS 45983 (ND NY, Jan. 30, 2009).

In Maier v. Swanson, 2009 U.S. Dist. LEXIS 40822 (D MT, May 14, 2009), a Montana federal district court accepted a magistrate's recommendation to dismiss plaintiff's claim that his free exercise and equal protection rights and his rights under RLUIPA were infringed when prison authorities denied him tarot cards in administrative segregation.

Voucher Supporters Want New Law In Arizona

In March, the Arizona Supreme Court held that two school voucher programs-- one for children with disabilities and the other for children in foster care-- violate the state constitutional prohibition on appropriating public money in aid of any private or sectarian school. (See prior posting.) According to a report by AP yesterday, now voucher supporters are seeking a special session of the Arizona legislature to pass new legislation. The proposal would create individual and corporate tax credits for donations to tuition grants for disabled and foster children attending private schools. However, the 9th Circuit recently also held that Arizona's existing scholarship tax credit program violates the Establishment Clause. (See prior posting.)

9th Circuit Stays Proceedings In Boy Scouts Case Pending High Court Actions

Yesterday in Barnes-Wallace v. City of San Diego, (9th Cir., May 15, 2009), the U.S. 9th Circuit Court of Appeals issued an order staying further proceedings in the long -running case that challenges the constitutionality of San Diego's leasing of city property at nominal rents to the Boy Scouts. The 9th Circuit issued the stay pending the final determination of a petition for certiorari pending with the US Supreme Court in the case and pending a decision by the Supreme Court in Buono v. Salazar, another religion case it is scheduled to hear next term. Most recently in Barnes-Wallace, the California Supreme Court denied the 9th Circuit's request that it decide three questions of law certified to it in the case. [Thanks to Bob Ritter for the lead.]

Court Rejects Teenager's Religious Objection To Cancer Treatment

After a hearing, in a lengthy opinion a Minnesota trial court has issued an order overriding the free exercise objections of 13-year old Daniel Hauser and his parents to Daniel’s receiving chemotherapy for Hodgkin’s lymphoma. The court also rejected his parents’ due process parental rights objections. The court found that Daniel does not understand his medical situation and lacks the ability to give informed consent as to medical procedures. The court concludes that the state has a compelling interest in seeing that Daniel obtains appropriate treatment. The court set the next hearing in the case for May 19, and ordered the parents in the meantime to get a chest X-ray for Daniel and select an oncologist for him. In In re Welfare of Child of Colleen Hauser and Anthony Hauser, (MN Dist Ct., May 14, 2009), the court found:

The family has a genuine and strong belief in the benefits of holistic medicine and, specifically, in Nemenhah. Nemenhah is based upon Native American healing practices. Daniel is deemed to be a “medicine man” by Nemenhah and does not wish to receive any additional chemotherapy.

Daniel Hauser is an extremely polite and pleasant young man. While he is 13 years of age, Daniel is unable to read. He does not know what the term "elder" means, although he claims to be one. He knows he is a medicine man under Nemenhah teachings, but is unable to identify how he became a medicine man or what teachings he has had to master to become one. He believes in the principle of "do no harm" and attributes his belief to Nemenhah teachings.

The court's website provides links to pleadings and partial transcripts from the hearing. AP reports on the decision. (See prior related posting.) [Thanks to Scott Mange and David Waddilove for the lead.]

Radical Group Sued By Church Under Little-Known Federal Provision

Alliance Defense Fund on Wednesday announced the filing of an interesting lawsuit in federal district court in Michigan. The Freedom of Access To Clinic Entrances Act, 18 USC Sec. 248, in addition to protecting abortion clinics, contains a little-known provision banning forcible obstruction or intimidation of anyone exercising the First Amendment right of religious freedom at a place of religious worship. The complaint (full text) in Mount Hope Church v. Bash Back!, (WD MI, filed 5/13/2009), relying on these provisions (as well as common law trespass), seeks an injunction and damages against a self-described "Radical Trans/Queer" group, Bash Back!, that engaged in a protest, infiltration and disruption of the Church's service in November 2008.

New Hampshire Governor Will Sign Same-Sex Marriage Bill Only If New Religious Protections Are Added

New Hampshire's Governor John Lynch yesterday released a statement saying that despite his personal views on the subject, he will sign the same-sex marriage legislation passed by the state legislature last week only if legislators first amend it to provide more protections for religious institutions. Otherwise he will veto it. NECN News has posted both a transcript and a video of his statement, which says in part:

... I understand, the very real feelings of same-sex couples that ... a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families. I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

Throughout history, our society's views of civil rights have constantly evolved and expanded. New Hampshire's great tradition has always been to come down on the side of individual liberties and protections. That is what I believe we must do today. But ... we must act to protect both the liberty of same-sex couples and religious liberty. In their current form, I do not believe these bills accomplish those goals.

The Legislature took an important step by clearly differentiating between civil and religious marriage, and protecting religious groups from having to participate in marriage ceremonies that violate their fundamental religious beliefs. But the role of marriage in many faiths extends beyond the actual marriage ceremony.... [T]he laws of other states, including Vermont and Connecticut, ... go further in protecting religious institutions.... This morning, I met with House and Senate leaders, and the sponsors of this legislation, and gave them language that will provide additional protections to religious institutions. This new language will provide the strongest and clearest protections for religious institutions and associations, and for the individuals working with such institutions. It will make clear that they cannot be forced to act in ways that violate their deeply held religious principles.

If the legislature passes this language, I will sign the same-sex marriage bill into law. If the legislature doesn't pass these provisions, I will veto it.

(See prior related posting.)

Contempt Citation Sought For Violation of School Event Prayer Ban In Florida District

Earlier this month, a Florida federal district court formally approved a consent decree barring the Santa Rosa (FL) school district and its employees from including prayers in any school event. (See prior posting.) Yesterday's Pensacola (FL) News Journal reports that now the ACLU has filed a motion seeking to hold school clerical employee Michelle Winkler in contempt for violating the preliminary injunction that preceded the consent decree [corrected]. Winkler called on her husband-- who is not employed by the district-- to deliver a prayer at the school district's "non-instructional employee of the year" banquet after Winkler was told that she could not offer a prayer, but only a nonreligious "thought of the day." In seeking permission, Winkler had e-mailed a supervisor, saying: "I would like to use the prayer I had prayed about and received from God and will suffer whatever consequences for." The contempt motion contends that district officials should have intervened to stop the prayer at the banquet, or at least afterward told those in attendance that it violated the court order.

Catholic Leaders Urge Removal of Harry Knox From Faith-Based Advisory Council

On Wednesday, two dozen conservative Catholic religious and political leaders sent a letter (full text) to President Barack Obama urging him to remove Harry Knox from the President's Advisory Council on Faith-Based and Neighborhood Partnerships. Among the signers was House Republican Leader, John Boehner. The letter charges that: "Knox is a virulent anti-Catholic bigot, and has made numerous vile and dishonest attacks against the Church and the Holy Father." Knox is director of the Faith and Religion Program at the Human Rights Campaign, an LGBT civil rights organization. CNS News reports on Knox's reaction. He told a Newsmax interviewer: "I have a tremendous amount of respect for the Roman Catholic Church and for all the good that it does. I do think that we have a real disagreement about the role of lesbian, gay, bisexual, and transgender people, both in the role of the church and in the role of public service." (See prior related posting.)

Australian State Charges Racial Vilification In Posting of Anti-Semitic Video

AP reported yesterday that in Perth, Australia, a 38-year old man has been charged with violating Western Australia's Racial Vilification Act of 2004 by posting a threatening anti-Semitic 10-minute video on YouTube. Under Australian law, defendants cannot be identified by name until their first court appearance. If the prosecution is successful, the defendant will become the first person convicted under the law.

En Banc Review Sought In Arizona Scholarship Tax Credit Case

The Institute for Justice announced yesterday that it has filed a petition with the 9th Circuit Court of Appeals seeking en banc review of the 3-judge panel's decision in Winn v. Arizona Christian School Tuition Organization. In the case, a 3-judge panel ruled that, as applied, Arizona's tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations" violates the Establishment Clause. Most of the funds are used for scholarships to religious schools. (See prior posting.) The Institute argues that the Arizona program is religiously neutral. It says that nothing in the law encourages parents or taxpayers to choose religious organizations or schools over secular ones.

Tennessee AG Says Specialty Plate For Church Is Unconstitutional

On Wednesday, the Tennessee Attorney General's Office issued Opinion No. 09-82 finding that a proposed bill to create a specialty license plate honoring the Church of God in Christ would violate the Establishment Clause. SB2145, as amended, provides that the funds produced by sale of the plates will be allocated to Church of God in Christ Charities. The AG's opinion concludes that the proposed law favors one religious entity and that both the message on the plates and the direct payment of funds to the church and its charities would be seen as an endorsement of religion. Finally, the Opinion concludes that the program would probably require monitoring to make sure that the funds were not used for religious purposes, and that would create an unconstitutional intrusion into church operations. Wednesday's Memphis Commercial Appeal reported on the AG's advisory opinion.

New Monograph Traces Limits On Government Funding of Religion

The Pew Forum on Religion & Public Life announced yesterday that it has issued a new report titled: Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations. The 18-page monograph traces the history-- beginning in the 18th century-- of public funding of religious activity and the development of legal principles restricting funding. This is the fifth in a series of reports issued by the Pew Forum, beginning in 2007, under the label: "Religion & the Supreme Court: The Pillars of Church-State Law."

Pope Continues Mid East Trip In West Bank Amid Politics of the Region

Zenit reports on the fifth day of Pope Benedict XVI's Middle Eastern trip. He spent yesterday in the West Bank, delivering four addresses. In at least two of them, he again tread into the politics of the Israeli-Palestinian conflict. During a welcome from Palestinian president Mahmoud Abbas at the presidential palace in Bethlehem, Pope Benedict spoke (full text) saying in part:

Mr. President, the Holy See supports the right of your people to a sovereign Palestinian homeland in the land of your forefathers, secure and at peace with its neighbors, within internationally recognized borders.... It is my earnest hope that the serious concerns involving security in Israel and the Palestinian Territories will soon be allayed sufficiently to allow greater freedom of movement, especially with regard to contact between family members and access to the holy places.

Later in the day the Pope spoke at Aida Refugee Camp near Bethlehem, where he praised the work of Catholic aid agencies who provide humanitarian assistance to refugees (full text of remarks). He said in part:

My visit to the Aida Refugee Camp this afternoon gives me a welcome opportunity to express my solidarity with all the homeless Palestinians who long to be able to return to their birthplace, or to live permanently in a homeland of their own....

Towering over us ... is a stark reminder of the stalemate that relations between Israelis and Palestinians seem to have reached -- the wall. In a world where more and more borders are being opened up -- to trade, to travel, to movement of peoples, to cultural exchanges -- it is tragic to see walls still being erected.... On both sides of the wall, great courage is needed if fear and mistrust is to be overcome, if the urge to retaliate for loss or injury is to be resisted. It takes magnanimity to seek reconciliation after years of fighting. Yet history has shown that peace can only come when the parties to a conflict are willing to move beyond their grievances and work together towards common goals, each taking seriously the concerns and fears of the other, striving to build an atmosphere of trust. There has to be a willingness to take bold and imaginative initiatives towards reconciliation: if each insists on prior concessions from the other, the result can only be stalemate

Today, according to the New York Times, the Pope will meet with Israeli Prime Minister Benjamin Netanyahu. Again political considerations shape the location. The two leaders will meet at the Church of the Annunciation in Nazareth instead of at the Apostolic Delegation in East Jerusalem that Benedict often uses. The Los Angeles Times last week reported on a complicated exchange between reporters and a spokesman for the Vatican who attempted to sidestep the political issues that would have been presented by a meeting at the East Jerusalem site that is officially known as the Apostolic Delegation of Jerusalem and Palestine.

7th Circuit En Banc Hears Arguments On Condominium Mezuzah Ban

Yesterday, the U.S. 7th Circuit Court of Appeals en banc heard oral arguments in Bloch v. Frischholz (recording of full arguments). In the case, a 3-judge panel of the Court last July rejected a claim under the federal Fair Housing Act by a Chicago condominium owner who objected to a condo association rule that effectively prevents any Jewish resident from placing a mezuzah on his or her door. The majority opinion in the 2-1 panel decision was written by Judge Frank Easterbrook. Judge Diane Wood dissented. (See prior posting.) The Chicago Tribune, reporting on yesterday's oral arguments, focuses on the active questioning by Judge Wood, who has been widely mentioned as a possible nominee to the U.S. Supreme Court. Here is a link to all the briefs that have been filed in the case.