Recent Articles of Interest

From SSRN:

• Elliott Visconsi, The Invention of Criminal Blasphemy: Rex v. Taylor (1676), (Representations, Vol. 103, pp. 30-52, Summer 2008).
• Lea Bishop Shaver, The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection?, (July 22, 2009).
• Francis Joseph Mootz, Faith and Politics in the Post-Secular Age: The Promise of President Obama, (July 13, 2009).
• Erin J. Cox, Freeing Exercise at Expression's Expense: When RFRA Privileges the Religiously Motivated Speaker, (UCLA Law Review, Vol. 56, p. 169, 2008).
• Prakash Shah, The Indian Dimension of An-Na'im's Islam and the Secular State, (Islam and Europe: Crises Are Challenges, Marie-Claire Foblets & Jean-Yves Carlier, eds., Leuven University Press, 2009).
• María Fraile Ortiz, The Islamic Headscarf: Does Context Matter?, (InDret, Vol. 3, 2008).
• Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities? Islamic Discussions of Western Secularism in the 'Jurisprudence of Muslim Minorities' (Fiqh Al-Aqalliyyat) Discourse, (Cardozo Law Review, Vol. 30, No. 6, pp. 2821-2854, 2009).

From SmartCILP and elsewhere:

• Symposium on the Environment, 23 Notre Dame Journal of Law Ethics & Public Policy 429-697 (2009).
• Jeffrey Shulman, Making Sense of the Establishment Clause, Engage, Vol. 10, Issue 2, p. 4 (2009).
• George W. Dent, Jr., The Growing Clash Between Religious Freedom and the Gay Movement, Engage, Vol. 10, Issue 2, p. 7 (2009).

"Flying Imams" Can Proceed Against Airport Security Officers For Search and Arrest

In the so-called "flying Imams" case (see prior posting), a Minnesota federal district court on Friday refused to dismiss false arrest, unreasonable search and seizure and equal protection claims against Metropolitan Airport Commission officers. The six plaintiffs, all imams, were removed from U.S. Airways Flight 300 in 2006 as they were returning from the North American Imams Federation conference held in Minneapolis. The action was prompted after reports that the men were praying loudly before the flight, that they talked about Saddam Hussein, they had no checked luggage, two of the men requested seat belt extensions, and they sat in a "suspicious" seating pattern. The imams were detained in the jet way, handcuffed, searched, transported to police operations center and questioned for several hours before being released.

In Shqeirat v. U.S. Airways Group, Inc., (D MN, July 24, 2009), the court wrote, in part:

MAC Defendants suggest that the attacks of September 11, 2001—perpetrated by men of Middle Eastern descent who espoused a radical version of Islam—justifies a massive curtailment of liberty whenever terrorism, and in this case, the suspicion of Islamic terrorism, is concerned. Unquestionably the events of 9/11 changed the calculus in the balance American society chooses to make, especially in airport settings, between liberty and security. Ultimately, the proper balance will be achieved, in large part, because we have the most capable and diligent law enforcement and intelligence communities in the world. But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.

On the record before the Court, no reasonable officer could have believed they could arrest Plaintiffs without probable cause. The right that was violated is clearly established, and, thus, the MAC Defendants are not entitled to qualified immunity. Accordingly, summary judgment is denied on the unreasonable seizure claim.

The court however did dismiss plaintiffs' claims against US Airways holding that it was not a state actor and that law enforcement officers did not substitute the airline's judgment for their own. the Minneapolis Star-Tribune reported on the decision yesterday. (See prior related posting.)

USAID Inspector General Raises Questions About Religious Nature of Some Grants

On July 17 the Office of Inspector General of the U.S. Agency for International Development issued issued a report titled Audit of USAID's Faith-Based and Commuinty Initiatives. As summarized in the report's introduction:

This audit surveyed 31 USAID regional legal advisors, as well as 9 of the 10 faith-based organizations that receive the most USAID funding, concerning the use of USAID funds for religious activities. From these responses, audit staff found that some USAID-awarded funds were used for religious activities in four contracts that amounted to more than $325,000. These funds were used for the rehabilitation of mosques and adjoining community centers in Iraq. USAID also funded, within a program to combat HIV/AIDS, lesson plans that contained Biblical applications and discussions.

However, USAID officials were unsure whether such uses of Agency funding violated Agency regulations or the Establishment Clause .... In their view, the relevant legal precedent relating to the separation of church and state, and its application overseas—especially in light of foreign policy objectives—complicated the decision-making process about what activities should or should not be funded. USAID requested legal clarification on this issue from the Department of Justice in 2007 but has not received final guidance...

Both the Washington Post and BeliefNet News reported last week on the IG's audit.

Georgia Judicial Council Permits Religious Head Coverings In Courtrooms

In a press release issued Friday, Georgia's Supreme Court announced that all courts in the state will now permit head coverings for religious or medical reasons to be worn in court rooms. AP reports on the policy change impelled by an incident last year when a judge in Douglasville (GA) sentenced a woman to ten days for contempt for refusing to remove her hijab. After protests, the woman was quickly released. (See prior posting.) The new policy adopted by the Judicial Council of Georgia provides:

Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.

Canada's High Court Rejects Hutterite Challenge To License Photo Requirement

In Alberta v. Hutterian Brethren of Wilson Colony, (Sup. Ct. Canada, July 24, 2009), Canada's Supreme Court in a 4-3 decision rejected a constitutional challenge brought by the Hutterites to Alberta's requirement that all drivers licenses contain a photo of the license holder. While Sec. 2(a) of Canada's Charter of Rights and Freedoms protects freedom of conscience and religion, the majority held that the universal photo requirement is justified under Sec. 1 of the Charter that permits reasonable limits on protected rights. As summarized by the court:

The Province's evidence demonstrates that the existence of an exemption from the photo requirement would materially increase the vulnerability of the licensing system and the risk of identity‑related fraud. Second, the universal photo requirement for all licensed drivers minimally impairs the s. 2(a) right. The impugned measure is reasonably tailored to address the problem of identity theft associated with driver’s licences. The evidence discloses no alternative measures which would substantially satisfy the government’s objective while allowing the claimants to avoid being photographed.

The majority also rejected a claim that the universal photo requirement infringes the equal protection guarantee of Sec. 15 of the Charter.

Justices Abella, LeBel and Fish each wrote a dissent. They stressed both the significant impact of the universal photo requirement on the Hutterite's religious beliefs and argued that the regulation is not a proportionate response to the problem of identity theft. Yesterday's Calgary Herald, reporting on the decision, says that the Hutterites are considering the possibility of leaving the province for a location that would be friendlier to them. Today's Lethbridge (AB) Herald also reports on the decision after interviewing the lawyer who represented the losing Hutterite colony.

Islamic Restictions Increasingly Being Enforced In Gaza

Israel's Haaretz today reports on the growing enforcement of Islamic law in the Gaza Strip by its Hamas dominated government. Already women lawyers are required to wear the hijab head covering in court. Modesty patrols are requiring women at beaches to wear head coverings and are inspecting isolated cars to prevent men and women from being together in them. Religious decrees requiring women to wear loose clothing are being accepted. Now several Hamas government agencies have apparently formulated a "General Moral List" which will be gradually introduced. The new requirements will ban whistling and honking horns at women, the display of mannequins in storefronts and prohibit crowded events to prevent men and women from touching.

Analysis Says European Fears Regarding Muslim Communities Appear Unfounded

Today's London Guardian, in a long article, reports that Europe's fear of the mass radicalization of its Muslim population now appears unfounded. Focusing on a recent Gallup poll, the article discusses Europe's fears earlier this decade of terrorism, a cultural "invasion," and high Muslim fertility rates. The Gallup poll shows a rejection of violence and increasing cultural integration in European Muslim communities. However the article points out that social and economic integration in Europe has been less successful.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Blount v. Ray, 2009 U.S. Dist. LEXIS 61521 (WD VA, July 17, 2009), a Virginia federal district court dismissed an inmate's RLUIPA claim that he was wrongly removed from his religious Common Fare Diet. The court held that plaintiff had not shown his sincerity regarding his religious dietary beliefs continued at the time he was removed from the food plan, since he refused to sign a CFD agreement.

In Ayotte v. McPeek, 2009 U.S. Dist. LEXIS 62163 (D CO, June 5, 2009), a California federal magistrate judge allowed an inmate to move ahead with his claim that his free exercise rights were infringed when his requests to replace his defective hearing aids were denied.Plaintiff alleged, along with other claims, that he has been prevented from fully understanding the religious programs that he attends in prison.

In Modlenaar v. Liberatore, 2009 U.S. Dist. LEXIS 62842 (WD NY, July 21, 2009), a New York federal district judge allowed a former Attica inmate to move ahead against a corrections officer in a suit challenging a denial of kosher food for six days while he was on a medically restricted diet.

In Pratt v. Hogan, 2009 U.S. Dist. LEXIS 63086 (ND NY, July 6, 2009), a civilly committed patient claimed that his required sex offender treatment program violated his free exercise rights. He alleged that he was an atheist, and the Good Lives Model and Boundaries Program compels one to believe in "spirituality" and includes relaxation programs that are partly based on eastern Zen practices. A New York federal district court concluded that defendants are entitled to qualified immunity because it was objectively reasonable for them to perceive no constitutional violations in implementing the program.

Suit Against Children Services Officials By Muslim Mother Is Mostly Dismissed

Abdulsalaam v. Franklin County Board of Commissioners, 2009 U.S. Dist. LEXIS 63296 (SD OH, July 23, 2009), involved a suit under 42 USC 1981 and 1983 against state officials and agencies in Ohio by a mother and her three daughters who were separated for a year when the daughters were placed in county child services custody. Social workers in Franklin County, Ohio charged educational neglect and physical abuse. Ultimately a court found those allegations unfounded. Plaintiffs allege that the abuse and neglect charges were fabricated as a result of racial discrimination, and that the girls were discouraged from practicing their Muslim religion while in foster care. In this decision, an Ohio federal district court found no evidence of racial discrimination and held that Section 1981 claims may not be based on religious discrimination. The court dismissed many of plaintiffs' claims, including their free exercise claim under Section 1983, holding:

Plaintiffs fail to cite a single precedent establishing that, even when viewed in the light most favorable to the Plaintiffs, Defendants acts--placement in a Christian foster home, refusal to place them in a Muslim foster home, refusal to provide them with a list of Muslim leader's phone numbers, or falsely reporting in FCCS' administrative file that they did not want to practice Islam--interfered with their right to free exercise. Accordingly, they have waived their free exercise claim by failing to support or develop it.

Plaintiffs were permitted to move ahead with claims under Section 1983 that the social worker interfered with protected rights of familial association and that she retaliated for plaintiff's engaging in protected speech. Plaintiffs were also permitted to proceed with a state law claim of intentional infliction of emotional distress. The social worker was charged with falsifying facts in her administrative file on the children.

Evangelist Tony Alamo Convicted On Mann Act Charges

Yesterday in Texarkana, Arkansas, Christian evangelist Tony Alamo was convicted in federal court on ten charges of violating the Mann Act by taking underage girls across state lines to have sex with them. According to the AP, five women, now age 17 to 33, testified that Alamo "married" them in private ceremonies while they were minors. They also told of trips outside of Arkansas with Alamo for sexual purposes. According to an earlier AP report, Alamo chose not to testify on his own behalf at trial. After the jury's verdict was read yesterday, Alamo was taken to a waiting U.S. Marshall's vehicle. He shouted to reporters: "I'm just another one of the prophets that went to jail for the Gospel." The charges against Alamo were filed after authorities last year raided the Arkansas compound of his Tony Alamo Christian Ministries as part of a child pornography investigation. (See prior posting.)

3rd Circuit Says RLUIPA Zoning Challenge Is Not Ripe

In Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt, (3d Cir. July 22, 2009), the U.S. 3rd Circuit Court of Appeals held that a RLUIPA challenge to a zoning board’s decision was not ripe for review. At issue was whether a synagogue located in Roosevelt, New Jersey, whose occupancy was grandfathered under the relevant zoning ordinances, needed to file an application for a zoning variance when it entered an arrangement for a Yeshiva (a Jewish school) to also operate in its building. The court concluded that the Planning and Zoning Board's decision that the synagogue needed to apply for a variance should not be reviewed until an application for a variance was filed and ruled upon, so that a full record would be available.

4th Circuit Says Warden Has Qualified Immunity In Demotion of Rastafarian Officer

Booth v. State of Maryland, (4th Cir., July 21, 2009), involved a Rastafarian who was demoted from his position in a Maryland prison as acting lieutenant. Plaintiff alleged the demotion stemmed from dislike of the fact that he wore his hair in dreadlocks for religious reasons. The U.S. 4th Circuit Court of Appeals affirmed the grant of qualified immunity from damages to the warden who demoted plaintiff, saying that plaintiff "has failed to identify any authority to support his contention that the right to wear one’s hair in conformance with one’s religious beliefs is a clearly established constitutional right."

Saskatchewan Court Says Marriage Commissioner May Not Refuse To Perform Gay Weddings

In Nichols v. M.J., (Sask. Q.B., July 17, 2009), the Queen's Bench for the Canadian province of Saskatchewan upheld a decision of the province's Human Rights Commission that a government marriage commissioner illegally discriminated against a gay man when the commissioner refused to perform a marriage ceremony for him. The marriage commissioner, Orville Nichols (who is a Baptist), asserted religious objections to performing same-sex marriages. The court, however, rejected his claim, saying:

M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation....

I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect. However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.

Reporting on the decision, the Regina (SK) Leader-Post says that provincial officials will still move ahead with plans to obtain a Court of Appeal ruling on the constitutionality of a proposed law that would exempt marriage commissioners from performing same-sex marriages if they object to doing so for religious reasons. (See prior related posting.)

Religious Objections To USDA's Animal Tagging Program Rejected

A federal district court yesterday rejected a challenge to the U.S. Department of Agriculture's National Animal Identification System (NAIS). In Farm-To-Consumer Legal Defense Fund v. Vilsack, (D DC, July 23, 2009), plaintiffs claim that "NAIS requires Premises Identification Numbers ('PINs') for each of their farms and radio frequency identification devices ('RFIDs') for each of their cattle, both of which result in the collection of information into a huge national database against their wills and in violation of their religious beliefs." Religious beliefs cited include the belief that individuals (not the government) are "endowed by their Creator with dominion and control over animals on earth." They also contend that accepting "the mark" of NAIS violates their religious mandates. Finally, some of the plaintiffs are Old Order Amish, and NAIS violates their aversion to technology. Its cost may force them to stop religiously-mandated farming.

All but one of the plaintiffs live in Michigan and the lawsuit focused on Michigan's adoption of NAIS as a means of combating tuberculosis in cattle. The court dismissed claims against the U.S. Department of Agriculture because plaintiffs' alleged injuries stemmed from the independent decision of the Michigan Department of Agriculture (MDA) to adopt the program, and not from action by the USDA. It dismissed claims under RFRA and NEPA against the MDA, because neither of those federal statutes apply to states. It dismissed claims that MDA failed to comply with state law on 11th Amendment grounds, and rejected supplemental jurisdiction over three state law claims. AP reported on the decision. (See prior related posting.)

Court Says It Can Apply Neutral Principles To Fiduciary Claim Against Church Trustees

In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., (ED PA, July 21, 2009), a Pennsylvania federal district court concluded that it could use neutral principles of law to resolve breach of fiduciary duty and unjust enrichment claims brought against church trustees and officers, as well as a claim that Church Articles do not comply with Pennsylvania's non-profit corporation law. It therefore rejected a 1st Amendment challenge to its jurisdiction. The court did dismiss certain other claims, concluding that they needed to be brought derivatively by a formal member who had standing to do so. Describing the Church's continuing factional dispute over leadership, the court said: "Litigation ensued, starting a Dickensian legal saga of which this case is only the most recent skirmish." In this case, plaintiff alleges that the faction now in control after winning earlier litigation have "misappropriated funds, wasted assets, paid themselves salaries and stipends that are contrary to the word and spirit of the Articles and By-Laws, funded private expenditures with Corporation assets, and violated state and federal law."

Nigeria Begins New Push To Tax Unrelated Income of Religious Groups

In Nigeria, government officials met Monday with religious leaders to discuss its new efforts to enforce federal tax laws against religious organizations. While the income of churches and other non-profits is exempt from taxation, the Internal Revenue Service is attempting to tax income from unrelated for-profit businesses owned by churches as well as donations and gifts given to religious leaders. 234Next reported yesterday that a committee will be set up to identify income that should not be taxed.

Utah Court Rejects Settlement In FLDS Trust Reform; Texas Custody Case Ends

In Salt Lake City, Utah on Wednesday, state court Judge Denise Lindberg rejected a settlement proposed last month by Utah's Attorney General in the complicated attempt to reform the FLDS United Effort Plan Trust. The trust holds land that the FLDS Church held and on which its members, many in polygamous relationships, lived. The communal relationship was mandated by FLDS tenets that called for a Holy United Order. In the lawsuit, the state seeks to remove the religious elements of the trust and to provide land both for current FLDS members and for those who have left, or were excommunicated from, the church. According to the Merced (CA) Sun-Star , the court concluded that Utah's proposal "decidedly favors the FLDS church and its adherents to the detriment of other potential trust beneficiaries." In so ruling, the court sided with Arizona's attorney general and special fiduciary Bruce Wisan who had opposed the settlement. (See prior posting.)

Meanwhile, in a separate case, the state of Texas ended state custody of the last of the 439 children who been taken by child welfare officials from the FLDS' Yearning for Zion Ranch in 2008. (See prior posting.) Yesterday's Salt Lake Tribune reports that the girl, now 15, was placed with her aunt, and the girl's mother, Barbara Jessop, was given the right to supervised visits. Allegedly the girl was spiritually married to former FLDS leader Warren Jeffs when she was 12.

Oregon Jury Acquits Faith Healing Parents On All But One Misdemeanor Charge

After a trial lasting nearly four weeks, a jury in Oregon yesterday rejected manslaughter charges against Carl and Raylene Worthington, members of the Followers of Christ, a group that rejects medical treatment in favor of faith healing. AP reports that Raylene was acquitted of all charges, while Carl was convicted only on a misdemeanor charge of criminal mistreatment. He faces up to one year in jail. The Worthington's 15-month old daughter died of pneumonia after her parents merely prayed over her and anointed her with olive oil instead of obtaining medical treatment. The case was the first since Oregon's law was amended 10 years ago to eliminate religious defenses in the child abuse and homicide statutes. Oregon Live has links to the indictment and motions filed in the case, to videos of the verdict being delivered and read and to other background on the case. (See prior related posting.)

Nurse Sues Hospital Claiming She Was Required To Assist In Abortion Procedure

On Tuesday, a nurse at New York City's Mt. Sinai Hospital filed a lawsuit against the hospital claiming that it violated the Church Amendment, 42 U.S.C. § 300a7(c), when it required her to assist in an abortion performed on a woman who was 22-weeks pregnant. The statute protects medical personnel who have religious or moral objections to participating in abortions from discrimination at facilities that receive federal funds. The complaint (full text) in Cenaon-DeCarlo v. Mt. Sinai Hospital, (ED NY, filed 7/21/2009), alleges that despite her known objections to assisting in abortions, while working on-call she was required to assist in an abortion which she claims was not of an emergency nature. Plaintiff also claims that the hospital has threatened to remove her from on-call shifts if she objects in the future to assisting in abortions. The lawsuit seeks an injunction protecting the conscience rights of plaintiffs and other health care personnel, an order requiring the hospital to disgorge a portion of the federal funds it has received, and damages. Plaintiff also seeks a preliminary injunction. (Memo in Support of Motion for Preliminary Injunction). Alliance Defense Fund issued a press release announcing the filing of the case.

5 Rabbis Among 44 Arrested In New Jersey Public Corruption and Money Laundering Probe

In a press release today, the U.S. Department of Justice announced:

The mayors of Hoboken, Secaucus and Ridgefield, the Jersey City deputy mayor and council president, two state assemblymen, numerous other public officials and political figures and five rabbis from New York and New Jersey were among 44 individuals charged today in a two-track federal investigation of public corruption and a high-volume, international money laundering conspiracy.

According to the Newark Star-Ledger, the rabbis arrested were connected to the prosperous and close-knit Syrian Jewish community of Brooklyn (NY) and Deal (NJ). (The Syrian Jewish community was profiled in a 2007 New York Times Magazine article.) Today's press release summarized charges against the rabbis:

Eliahu Ben Haim, of Long Branch, N.J., the principal rabbi of a synagogue in Deal, N.J., charged with money laundering of proceeds derived from criminal activity.

Saul Kassin, of Brooklyn, N.Y., the chief rabbi of a synagogue in Brooklyn, New York, charged with money laundering of proceeds derived from criminal activity.

Edmund Nahum, of Deal, N.J., the principal rabbi of a synagogue in Deal, charged with money laundering of proceeds derived from criminal activity.

Mordchai Fish, of Brooklyn, N.Y., a rabbi at a synagogue in Brooklyn, charged with money laundering of proceeds derived from criminal activity. His brother [Lavel Schwartz], also a rabbi, was charged as well.

It went on to describe the money laundering portion of the charges as follows:

The money laundering conspiracy involved high-ranking religious figures and their associates in Brooklyn, N.Y. and Deal, N.J. Among them was Eliahu Ben Haim, of Long Branch, N.J., the principal rabbi of Congregation Ohel Yaacob in Deal, N.J. Typically ... Haim received bank checks in amounts ranging from tens of thousands of dollars up to $160,000 at a time made payable to a charitable, tax-exempt organization associated with Haim and his synagogue. To complete the money laundering cycle, Haim would return the amount of the check in cash ..., less a cut for Haim, typically 10 percent....

Similar circles of money launderers in Brooklyn and Deal, N.J. operated separately but occasionally co-mingled activities and participants. In most cases, the rings were led by rabbis who used charitable, non-profit entities connected to their synagogues to "wash" money that they understood came from criminal activity like bank fraud, counterfeit goods and other illegal sources.... [T]he rabbis made significant sums in fees, which typically ran between five and ten percent per transaction.

The release emphasized the importance in the investigation of a cooperating witness who infiltrated the money laundering network and later dealt with various public officials who are being charged with bribery. The Wall Street Journal says that the cooperating witness is Orthodox Jewish real estate developer Solomon Dwek who had been arrested on bank-fraud charges in 2006. The FBI began using Mr. Dwek as an informant in mid-2007, wiring him and videotaping his encounters with targets of the investigation.

Court Refuses To Strike Allegation In School Music Lawsuit

As previously reported, a lawsuit against the St. John's County, Florida school district challenges on Establishment Clause grounds certain songs selected by Webster School's music teacher for students to perform. In S.D. v. St. Johns County School District, 2009 U.S. Dist. LEXIS 62013 (MD FL, July 7, 2009), a federal magistrate judge has now denied a motion by the music teacher, also a defendant, to strike from plaintiff's complaint an allegation that she "is a member of the steering committee of an organization called Marketplace Christian Professional Resources, the objective of which is to promote the Christian religion in places of work and in public schools...." The court concluded that the challenged allegation is neither "immaterial" nor "scandalous."

Questions Raised Over Financing Of Rep. Keith Ellison's Hajj Trip

Minnesota Rep. Keith Ellison-- one of Congress' two Muslim members [corrected]-- is the target of critics who have raised concerns about the financing of a pilgrimage (Hajj) he took last year to the Muslim holy city of Mecca. BeliefNet yesterday (carrying an article from the Minneapolis Star-Tribune) reports that the Muslim American Society of Minnesota (MAS) paid for the trip as a way to improve communications between American Muslims and the wider Muslim world. The House Ethics Committee allowed the trip to be reported as one unrelated to Congressional duties. That permitted Ellison to withhold disclosure of amounts involved. The Muslim American Society is connected with the controversial Minneapolis area charter school, the Tarek ibn Ziyad Academy. In 2006 and 2007, MAS received rental payments for the building that housed the Academy. Those payments came from state funds. The House Ethics Committee is now reviewing its decision on how the trip was reported. Meanwhile, according to the Minneapolis Star-Tribune, the Minnesota Republican Party called for an investigation into Ellison's trip.

India's Supreme Court Withdraws Opinion On Catholic School's Grooming Policy

Today's Indian Catholic reports that on July 6, India's Supreme Court withdrew a March 30 ruling (see prior posting) that upheld the right of a Catholic school to enforce its grooming policy. Sixteen year old Muslim student, Mohammed Salim, left the Nirmala Convent Higher Secondary School when it insisted that he comply with its requirement that male students be clean shaven. He lost his lawsuit, but the Supreme Court's opinion drew criticism because of a statement in it by Justice Markandey Katju who said: "We don’t want to have Taliban in the country." Apparently that language is what led to the opinion's withdrawal. The Church says it has not yet received "any official communication from the court."

County Will End Ban On Sunday Sales Despite Some Religious Objections

The Aiken (SC) Standard reports that Aiken County Council voted 7-2 on Tuesday to suspend the county's blue laws that prohibit sale of various items before 1:30 p.m. on Sundays. Final passage is expected on the proposal's third reading next month. Proponents said that schools are losing sales tax dollars as residents shop in neighboring counties in Georgia on Sundays. However some speakers opposed the measure on religious grounds. One urged: "Vote not on the spirit of the age, but on principle. Surely you don't want to go down as the Voltaire who thought during the French Revolution that if the Sabbath was destroyed, it would destroy Christianity. Place your allegiance with the Lord on this one."

Sikh Crime Victims In London Can Now Request Sikh Officer For Case

In Britain, London's Metropolitan Police have responded to cultural misunderstandings in criminal investigations by instituting a new program. Yesterday's BBC News reports that Sikh crime victims will now be able to request that a Sikh police officer be a part of the crime investigation. Palbinder Singh, chairman of the Metropolitan Police Sikh Association, said that in the past, serious crimes where Punjabi culture is an issue have not been properly investigated. The police department has also set up a website through which crimes can be reported so, for example, women who are prevented from making an unsupervised phone call, can report honor-based violence or forced marriage. Officials say that a similar program might be extended to other minority groups in the future, though some believe that a better approach would be greater training in cultural sensitivity for all officers.

Buddhist Candidate For Virginia Legislature Responds To Concerns

Yesterday's Waynesboro (VA) News Virginian reports that the Virginia legislature could have its first practicing Buddhist member next year. Erik Curren, who began practicing Buddhism over a decade ago, is the Democratic candidate for the 2oth District seat in Virginia's House of Delegates. Curren also attends a Methodist Church with his fiancée and her two daughters. Curren was surprised when a local Democratic leader, Augusta County Supervisor Tracy Pyles, complained that Curren had not disclosed his religious beliefs before he was chosen as a candidate. The 20th District, comprised of Staunton, Highland County and parts of Augusta and Rockingham counties, is largely Christian. Curren says that if elected, he will be sworn in on a Bible. In a posting yesterday on his campaign website, Curren said:

[F]or the last decade or more, like millions of Americans, I have practiced meditation. Sometimes I walk and sometimes I sit. But always, taking a break from daily activity helps me think about my life and connect with a deeper truth. With increasing scientific evidence for the benefits of meditation to calm the stress of today’s busy world, it’s no wonder that this simple practice has spread to corporate boardrooms, hospitals, schools, and even churches across the United States.

It is understandable that people are curious about and may even fear things that they do not understand. So it is a service to civil discourse for people of different faiths to share their beliefs and practices in a spirit of mutual respect and tolerance. Recognizing that all major religions teach the same basic ideas –to seek truth, promote love, and care for God’s creation — faith can be a way to bring us all together on a higher plane.

But all too often religion is used by misguided leaders to pull our communities apart and to sow the seeds of discord. This is a misuse of religious faith in my opinion, and I feel compelled to speak out against religious prejudice and bigotry.

So, to those who would court intolerance for political gain, I say: in America, you will lose. In Virginia, you will lose. And in the Shenandoah Valley and Highland County, you will lose.

Anti-Separationist Billboards Placed In Two Florida Counties

In Pinellas and Hillsborough counties in Florida, Christian activist Terry Kemple, head of the Community Issues Council, with financial support from retired businessman Gregg Smith, is sponsoring ten billboards attacking the notion of separation of church and state. The St. Petersburg (FL) Times on Tuesday reported that the billboards feature quotes from historical figures such as John Adams, James Madison and Benjamin Franklin, and others that are apparently inaccurately attributed to George Washington. The quotations stress religious foundations in American history. Kemple explained his motivation: "The fact is, for the last 40 years, as anti-God activists have incrementally removed the recognition of God's place in the establishment of our country, we have gone downhill." American United's blog yesterday carried a strong critique of the billboard project.

PA Supreme Court: Civil Courts Can Hear Defamation Claim Against Catholic School

In Connor v. Archdiocese of Philadelphia, (PA Sup. Ct., July 20, 2009), the Pennsylvania Supreme Court held that civil courts have jurisdiction over a suit growing out of the expulsion of a 7th-grade student from a Catholic parochial school. The student was expelled for allegedly bringing a penknife to school, a fact disputed by his parents. The student's parents sued the school, school officials and the archdiocese alleging that a letter and other communications about about the expulsion sent to the school community constituted defamation and negligent infliction of emotional distress. The lower courts had refused jurisdiction, finding that they could not review an ecclesiastical disciplinary decision or communications about it. The Supreme Court reversed, concluding:

[W]hile appellees explain ... that "[t]he communication of the expulsion provided example of the religious values of the [S]chool to parent and student alike" ..., appellees do not contend that such religious rationale for the Post-expulsion Communications required that the Communications specifically allege that Eric brought a "penknife" or "weapon" to school. Thus, this is not a case in which religious authority would be directly relevant to a party’s showing on the merits of his or her opponent’s claims.... [N]eutral principles can be applied to determine whether the Post-expulsion Communications were defamatory.

Wisconsin Supreme Court: Ministerial Exception Applies To Catholic School Teacher

In Coulee Catholic Schools v. Labor and Industry Review Commission, (WI Sup. Ct., July 21, 2009), in a 4-3 decision, the Supreme Court of Wisconsin applied the "ministerial exception" to hold that Wendy Ostland, a first grade teacher in a Catholic school, was constitutionally precluded from bringing an age discrimination claim under the Wisconsin Fair Employment Act. The majority said:

We conclude that both the Free Exercise Clause of the First Amendment ... and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims ... for employees whose positions are important and closely linked to the religious mission of a religious organization.... Ostlund's school was committed to a religious mission——the inculcation of the Catholic faith and worldview—— and Ostlund's position was important and closely linked to that mission. Therefore, Ostlund's age discrimination claim underthe WFEA unconstitutionally impinges upon her employer's right to religious freedom.

Justice Crooks dissenting opinion argued:

the majority's conclusion that based on the facts here CCS infuses its secular subjects with religion effectively extends a free pass to religious schools to discriminate against their lay employees....

Yesterday's Chicago Tribune reports on the decision.

ACLU Has Taxpayer Standing To Challenge Charter School As Promoting Islam

In American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy, (D MN, July 21, 2009), a Minnesota federal district court held that plaintiff has taxpayer standing to challenge as an Establishment Clause violation the funding of a charter school by the state of Minnesota. Plaintiff alleges that the Tarek ibn Ziyad Academy advances the Muslim religion and fosters entanglement between government and religion. The court rejected defendants' argument that under the U.S. Supreme Court's Hein decision, funding of the school was a discretionary executive branch decision, not a legislative appropriation. It said: "The fact that the Commissioner [of Education] has the responsibility to choose or authorize charter schools (which then in turn receive funding) does not mean that Plaintiff here is challenging an executive action." The court did, however, dismiss plaintiff's claim of statutory violations and dismissed claims against certain of the defendants on sovereign immunity grounds. ACLU yesterday issued a press release on the decision and the Minneapolis Star-Tribune reported on the case. (See prior related posting.)

Kentucky County Removes 10 Commandments After Lawsuit Is Filed

WYMT-TV reported yesterday that in response to a lawsuit filed earlier this month, Jackson County, Kentucky officials have taken down the nine copies of the Ten Commandments that had been on the walls of the county court house. (See prior posting.) Judge executive William O. Smith said that they did not want to jeopardize taxpayer funds. The plaques will go to local businesses who will display them so people in the county can still see them. Jim Muncy, who put up the displays ten years ago and who now took them down, said emotionally: "All the laws of our state were based on the Ten Commandments. It's not that it's a religious statement, it's a statement of law and order."

Kenya Says Muslim Girls Can Wear Hijab To School

In Kenya, Education Permanent Secretary Prof. Karega Mutahi last week issued a circular to school principals and education officials confirming that Muslim girls are free to wear the hijab (head covering) to school. Spero News reported yesterday that the action came after some 20 public schools had suspended Muslim students for wearing the hijab.

Non-Muslims Find British Shariah Courts Attractive

The London Times reported yesterday that increasing numbers of non-Muslims in Britain are turning to Shariah arbitration tribunals in commercial disputes and other civil matters. The Muslim Arbitration Tribunal said that 5% of its cases (20 cases so far this year) involved non-Muslims who were attracted by the less formal nature of the arbitration process. The Muslim Arbitration Tribunal hopes to set up Shariah courts in ten new British cities this year, and hopes to act as an advisory body to other Islamic courts in Britain in order to create a consensus on procedure and rulings. [Thanks to PewSitter for the lead.]

Russian Schools Will Begin Courses On Religions and Ethics

Russian schools in 18 regions (about 20%) of the country next year will begin a pilot program to teach about religion and ethics. Yesterday's Fresno Bee reported that Russian President Dmitry Medvedev has announced a program under which schools will offer several choices: a course in one of the four traditional religions (Russian Orthodoxy, Islam, Buddhism or Judaism), a course presenting an overview of all four faiths, or a course in secular ethics. This approach was designed to ease concerns about mandatory classes in Orthodoxy that were introduced in a few regions three years ago.

Laotian Village Chief Tells Christian Families To Renounce Their Beliefs

The Christian Post yesterday reported on an incident in a small village in Laos that has been publicized internationally by Human Rights Watch for Lao Religious Freedom. According to the report:

The chief of Katin village, along with village security, social and religious affairs officials, warned all 53 Christian residents that they should revert to worshiping local spirits in accordance with Lao tradition or risk losing all village rights and privileges – including their livestock and homes... The previous Sunday (July 5), officials and residents confiscated one pig each from nine Christian families and slaughtered the animals in an effort to force them to renounce their faith....

The article chronicles a long history in this particular village of actions against Christian families living there.

Senate Passes Resolution Condemning Anti-Semitism

Yesterday the U.S. Senate passed by unanimous consent S. Con. Res. 11 condemning all forms of anti-Semitism and reaffirming the support of Congress for the Special Envoy to Monitor and Combat Anti-Semitism. The Resolution now goes to the House of Representatives. The resolution, among other things "rejects attempts to rationalize anti-Jewish hatred or attacks as a justifiable expression of disaffection or frustration over political events in the Middle East or elsewhere."

Protests Continue Over LDS Regulation Of Plaza In Salt Lake City

The Salt Lake Tribune this month has carried a series of articles (1, 2, 3) on the latest controversy over how the LDS Church administers Main Street Plaza, an area in downtown Salt Lake City that the Church purchased from the city in transactions beginning in 1999. Originally the city kept an easement, but after controversies over LDS regulation of expression on the Plaza, the city's right of way was sold to the Church. (Background.) The latest incident (full text of police report) arose in early July when LDS security guards asked a gay couple to stop their inappropriate behavior after the couple kissed. An argument ensued, and eventually the couple was cited for trespassing by the Salt Lake Police Department. This past Sunday, some 200 couples staged a "kiss-in" on Church property to protest the treatment of the gay couple. This was the second such protest. America Forever, an anti-gay group, was there with counter protest signs, and some 20 minutes of shouting between the groups ensued.

Opponents of Hate Crimes Bill Add Amendments That Make It More Contentious

Yesterday the U.S. Senate passed four amendments to the Matthew Shepard Hate Crimes Enforcement Act that it adopted last week as part of the Defense Authorization Act. (See prior posting). Three of the amendments (full text) were introduced by Sen. Jeff Sessions and, according to the Advocate, are seen by the Human Rights Campaign as "poison pills" designed to defeat the entire hate crimes bill. The Hill also reports on the amendments which were described by HRC Back Story as follows:

The first Sessions Amendment would allow the death penalty to be applied in hate crimes cases under some circumstances. This Amendment is unnecessary and is a poison pill designed to kill the bill. The Amendment is being offered by and supported by Senators who oppose the Matthew Shepard Act. It’s ironic that the very Senators who have falsely argued that this bill would put clergy in jail because of their beliefs think that those same clergy should be subject to the death penalty.

The second Sessions Amendment would place an additional burden on the Justice Department to revise its long established guidelines for hate crimes cases. This Amendment is unnecessary. The Department already contains well-established, clear and precise guidelines to govern cases involving bias-motivated violence that work well.

Finally, the third Sessions Amendment would provide additional penalties for crimes involving service members or their families. This Amendment is unnecessary. Existing statutes already provide special penalties on attacks against members of the Armed Services and veterans. In addition, the vague language of the Amendment is problematic. The Amendment provides for additional penalties for injuring the property of a serviceman or immediate family member. The scope of "family member" or what constitutes an "injury" to their property is unclear.

In response to the addition of the death penalty language, the Senate then passed a Democratic-sponsored amendment that would limit hate crime prosecutions until a state's attorney general has created standards for applying capital punishment. The death penalty amendment, offered by Sen. Sessions, was approved by unanimous consent despite a letter (full text) from 50 civil rights and religious groups opposing the amendment.

Meanwhile, according to yesterday's Washington Blade, the ACLU has issued a statement pressing for the House, rather than the Senate, version of the hate crimes bill. The House bill, H.R. 1913, was passed by the House in April. (See prior posting.) Concerned about freedom of speech and association, the ACLU favors language in the House bill that prohibits introducing substantive evidence of expression or association at trial unless it specifically relates to the offense charged. The House language though would not change evidentiary rules on the impeachment of witnesses. Chris Anders, ACLU senior legislative counsel, said that "an otherwise unremarkable violent crime" should not become a federal offense because the defendant viewed the wrong web site, belonged to a group espousing bigotry or subscribed to a magazine that promotes discriminatory views.

Project Will Rate Muslim Countries On Adherence To Shariah

UAE's The National today reports on the Cordoba Initiative. Led by New York-based Imam Feisal Abdul Rauf, its goal is to create a "Shariah Index" that will rate majority-Muslim countries on how closely they adhere to the principles of Islam. Rauf says: "What are the principles that make a state Islamic? We can say among them is justice, protection of religion and minorities and elimination of poverty, and so on." Among those funding the project, designed to improve relations between Muslim countries and the West, is the Malaysian government.

Members of Congress Join In Rally To Protest Falun Gong Persecution By China

Last week, members of Congress joined activists in a rally on Capitol Hill to mark the tenth anniversary of the start of persecution of the Falun Gong by the government of China. Yesterday's Epoch Times reports that speakers at the rally included New Jersey Rep. Chris Smith, Florida Rep. Lincoln Diaz-Balart and Florida Rep. Ileana Ros-Lehtinen.

Obama Meets At White House With Mormon Leader

Yesterday President Obama met at the White House with Thomas S. Monson, president of the Church of Jesus Christ of Latter-Day Saints. KSL-TV and the Salt Lake Tribune both report on the meeting at which Monson presented the President with a specially-researched 5-volume leather-bound history of the Obama family gong back hundreds of years. After the meeting, Obama issued a statement, in part expressing his appreciation for the genealogical records. The White House meeting was arranged by Nevada Senator (and majority leader) Harry Reid. Also attending the Oval Office meeting was Mormon Elder Dallin Oaks, who once taught at the University of Chicago Law School (as did Obama).

Israeli Court Awards Damages To Bedouin Family Excluded From Swimming Pool

In Israel, the Beersheba Magistrate's Court today awarded damages equivalent to $2560 (US) to a Bedouin family who were denied entry to a swimming pool in the town of Ofakim. According to YNet News, plaintiffs in the lawsuit alleged discrimination on the basis of religion, race and nationality. They claimed that the pool owner objected to the mother's veil, saying it would drive away his other customers. Pool owner Zion Peretz allegedly demanded that she remove it, or else that the family return at a later time to swim. Peretz admitted that he did not let the mother enter, but said it was because a rabbi and his six children were swimming in the pool and he had promised them not to let women enter. The judge rejected that as a defense and held that the pool owner's discrimination had insulted plaintiff family in a significant manner.

Competing Lawsuits Filed In Dispute Over Religious Services At Co-op Unit

Canopus is a Putnam County, New York cooperative comprised of 22 free-standing homes on 15 acres of land. A longstanding dispute between Anthony Bondi, Jr., a lessee of one of the homes, and his neighbors has led to competing lawsuits being filed in state court in New York. Bondi is head of an organization known as the Holy Orthodox Catholic and Apostolic Church of America. He holds services in his home which are attended each week by ten to 15 people. The cooperative has threatened to terminate his lease saying he is in violation of a lease provision that limits use of homes to residential purposes. Neighbors say that Bondi's advertising of services, including a website, invites strangers into the close-knit neighborhood. In 2008, Bondi filed a housing discrimination complaint with the New York State Division of Human Rights and with federal authorities at HUD. The New York agency issued a Determination of Probable Cause, and Canopus (as permitted by New York law) elected to have the complaint adjudicated in civil court.

While settlement negotiations were going on, Canopus-- without advance notice-- filed in state court. The complaint (full text) in Canopus Realty Corp. v. Bondi, (Sup. Ct. Putnam Co., filed 7/2/2009) seeks a declaratory judgment that Bondi does not have a right to run a business, including his Church, from his residence, and that enforcement of the lease terms that restrict use to residential purposes does not violate state or federal civil rights laws. In response, New York filed a housing discrimination lawsuit against the cooperative. The complaint (full text) in New York State Division of Human Rights v. Canopus Realty Corp., (Sup. Ct. Putnam Co., filed 7/14/2009), alleges religious discrimination, saying that the cooperative does not prevent other residents from inviting guests to their homes or to the co-op's clubhouse. It asks for a declaratory judgment, injunction and damages, as well as various broader remedial actions by Canopus. Courthouse News Service today reports on the lawsuits.

Recent Articles of Interest

From SSRN:

• William W. Van Alstyne, Religion in the Workplace: A Report on the Layers of Relevant Law in the United States, (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009).
• Reid K. Weisbord & Peter DeScioli, The Effects of Donor Standing on Philanthropy: Insights from the Psychology of Gift-Giving, (Gonzaga Law Review, Vol. 45, No. 2, January 2010).

From SmartCILP:

• Charlton C. Copeland, God-Talk in the Age of Obama: Theology and Religious Political Engagement, 86 Denver University Law Review 663-691 (2009).
• Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, 32 Hastings International & Comparative Law Review 477-528 (2009).
• Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 NEXUS 101-111 (2008-2009).

Texas Town Is Changing City Council Invocation Policy

San Marcos, Texas City Council has responded to complaints by Americans United and the ACLU that invocations opening Council meetings have almost always been specifically Christian in content. The Austin American Statesman reported last Friday that Council has directed City Attorney Michael Cosentino to develop a policy that prohibits prayers which proselytize or advance one religion. Also, the invocation at tomorrow's Council meeting will be delivered by Rabbi Kerry Baker from Austin's Congregation Kol Halev.

Iranian Singer Sentenced In Abstentia To 5 Years For Recording of Quranic Verses

In Iran, popular singer-composer Mohsen Namjoo-- described as Iran's Bob Dylan-- has been sentenced in abstentia to five years in prison for dishonoring the Quran. Reports last week by Press TV, AFP and the blog Freemuse give details. An Iranian Quran scholar filed a complaint against Namjoo charging that he had presented "an insulting, sneering performance of Quranic verses with musical instruments." Namjoo, who has now moved to Vienna, says that his private recording made four years ago was released without his authorization. He has apologized for the recording. Namjoo's brother says the family will appeal the jail sentence.

Consent Order Entered In Challenge To City's Speech Ordinance

Earlier this month, a New Jersey federal district court entered a Consent Order (full text) reflecting a settlement in Wollod v. City of Wildwood, New Jersey, (D NJ, July 8, 2009). The lawsuit, brought by a Christian evangelist, challenged ordinances that restrict the distribution of literature in the beach town. (See prior posting.) Under the settlement, the city agreed to amend its ordinances so that individuals (as opposed to larger groups) will not be required to obtain a permit or pay a fee to engage in religious speech or hand out religious literature on public sidewalks, parks and boardwalks in Wildwood. It also agreed to pay plaintiff $15,500 in attorneys fees and costs and specifically stipulated that plaintiff would be permitted to engage in religious speech in public forums. Alliance Defense Fund issued a release on the case last Wednesday.

Recent Prisoner Free Exercise Cases

In Barnes v. Pierce, (5th Cir., July 10, 2009), the U.S. 5th Circuit Court of Appeals rejected an inmate's claims under the 1st and 14th Amendments and RLUIPA that his rights were violated when he was precluded from participating in any religious services while on cell restriction, and otherwise was limited to one primary religious service per week.

In Mecca Allah Shakur v. Sieminski, 2009 U.S. Dist. LEXIS 60796 (D CT, July 16, 2009), a Connecticut federal district court rejected an inmate's claim that his free exercise rights were violated when he was allowed to attend congregate religious services only in "Q-Unit", a step-down unit from administrative segregation, instead of being able to attend them in the prison's main building.

In Price v. Owens, 2009 U.S. Dist. LEXIS 58844 (ND GA, April 28, 2009), a Georgia federal district court held that an inmate's free exercise and RLUIPA challenges to a prison's grooming policy is not subject to the "continuing violation" or "continuing tort" doctrine for purposes of determining whether the statute of limitations has run. The statute runs from the time of the first application of the grooming policy to plaintiff, and not from each haircut. In Price v. Owens, 2009 U.S. Dist. LEXIS 58840 (ND GA, July 8, 2009), the court denied plaintiff's motion for reconsideration of the matter.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 59531 (ED AR, June 29, 2009), an Arkansas federal magistrate judge recommended that the court dismiss an inmate's claim that assessment of various fees against his inmate trust account violates his free exercise rights. Plaintiff alleged that he is a "Disciple of Jesus Christ," and assessing those fees violates Romans 13:8. He says the practice "is contrary to the doctrine of Jesus, thus hindering me from obeying the doctrine of my Savior to the salvation of my soul."

In Powell v. Smith, 2009 U.S. Dist. LEXIS 58906 (ED CA, June 25, 2009), a California federal district court dismissed an inmate's claim that his free exercise rights were infringed when he was stripped searched in the presence of female corrections officers. Plaintiff asserted that this practice violated his Muslim religious beliefs.

In Rodriguez v. Schwarzenegger, 2009 U.S. Dist. LEXIS 59680 (ED CA, June 24, 2009), a California federal district court allowed plaintiff to move ahead with claims that prison officials
improperly confiscated his personal property (including religious objects) for extended periods of time, unreasonably restricted his access to religious ceremonies, and desecrated the prison's Native American sacred grounds.

Washington State Begins Rulemaking To Head Off Holiday Display Confusion At Capitol

In anticipation of this year's holiday season, the Washington state Department of General Administration last week issued a Pre-proposal Statement of Inquiry and a letter announcing the start of a rule-making process on use of public areas of the Capitol campus. The Tacoma News Tribune on Friday reported that the proposal seeks to avoid last year's confusion which it described:

A handful of displays had been allowed in a third-floor hallway of the Legislative Building, not far from a 30-foot noble fir sponsored by the Association of Washington Business for the holidays. A real estate agent then added a Nativity creche. After that, the Wisconsin-based Freedom from Religion Foundation put up an atheist placard equating religion with myth, two Christian displays were added mocking atheism, and a Jewish group displayed a menorah. Fourteen applications had been filed when the department issued a moratorium on further displays.

Priest's Conviction Upheld Over Challenge To Testimony Regarding Religion

State v. Bussmann, (MN Ct. App., July 14, 2009), was an appeal after a retrial of Catholic priest John Joseph Bussmann on a charge of criminal sexual conduct with a woman he employed as director of youth ministries. In 2007 the Minnesota Supreme Court, in a fragmented decision, concluded that Bussmann's earlier conviction under the clergy criminal sexual conduct statute, based on the admission of extensive evidence concerning religious doctrine and church policies and practices, violated the Establishment Clause. (See prior posting.) Here the Court of Appeals upheld the second conviction, finding:

Unlike the first trial, on retrial there was no testimony regarding Catholic Church doctrine, the power that priests have traditionally had over parishioners, or internal church procedures regarding allegations of abuse. Because the charging statute requires proof of certain elements that directly touch and concern religious practices, it is impossible to prove the charged offense without some religion-related testimony. After reviewing the limited religion-related testimony from Father McDonough, we are satisfied that the district court carefully adhered to the Bussmann I admonitions and admitted only such religion-related testimony as was necessary for the state to prove the charged offense. We conclude that the religion-related testimony did not excessively entangle church doctrine with civil law.

Court Says FLDS Members Cannot Intervene In UEP Trust Litigation

KSL News reports that on Friday, a Utah judge rejected a motion by several leading members of the FLDS Church to intervene in a court case that is seeking to reform the terms of the United Effort Plan Trust-- the trust that holds title to FLDS Church property. In In the Matter of the United Effort Plan Trust, (UT 3d Dist. Ct., July 17, 2009), Judge Denise Lindberg wrote:

potential beneficiaries of charitable trusts have no right to make claims on such trusts. Because the UEP Trust is a charitable trust, the only individuals with legally cognizable interests are the Utah and Arizona Attorneys General (A.G.s) as representatives of the community, and the Court-designated Special Fiduciary.

The court also issued an order requiring the Utah Attorney General to forward certain disputed funds to the court, and scheduled a hearing on the sale of the Berry Knoll Farm property-- land that FLDS says should be a holy temple site. Funds are needed by the Trust to meet accrued debts.

2nd Circuit: Muslim Scholar Gets Chance To Challenge Visa Denial

A Muslim scholar who was prevented from accepting a tenured position at Notre Dame University when his visa was revoked will have his day in court after all. Swiss-based Tariq Ramadan was barred from the U.S. after he disclosed in an interview that he had donated $1,336 to the Association de Secours Palestinien, a group which directed funds to Hamas. In American Academy of Religion v. Napolitano, (2d Cir., July 17, 2009), the U.S. 2nd Circuit Court of Appeals remanded the case so the trial court could decide whether consular officials gave Ramadan a reasonable opportunity to demonstrate that he did not know, and could not reasonably have known, that ASP channeled funds to Hamas. New York Law Journal gives more details on the case. (See prior related posting.)

British Police Can Obtain Accommodation for Pagan Holidays

BBC News reported Thursday that discussions between the recently-formed Pagan Police Association and Britain's Home Office have resulted in arrangements for Pagan police in some areas to schedule their vacation times to coincide with Pagan holidays. They will be able to take off for up to eight days of pagan holidays each year-- such as the summer solstice and Halloween. [Thanks to Scott Mange for the lead.]

Hawaiian Church Sued Over Construction On Former Cemetery Site

AP reports on a lawsuit filed in Hawaii last Wednesday to require Honolulu's Kawaiahao Church and the state Department of Land and Natural Resources to fully comply with state burial laws in a construction project on land that was once a cemetery. The church is building a $17.5 million multipurpose center. The suit was filed by Abigail Kawananakoa after initial construction discovered 69 graves. Among those buried in the cemetery is Queen Kapiolani, an ancestor of the plaintiff in the lawsuit. The church says it followed all state laws in the construction, while the lawsuit alleges that the laws have been circumvented in order to speed up the building project

3rd Circuit: Trial Court Properly Refused To Interfere In State Civil Rights Probe

In Ocean Grove Camp Meeting Association v. Vespa-Papaleo, (3d Cir., July 15, 2009), the U.S. 3rd Circuit Court of Appeals said that the district court correctly applied the Younger abstention doctrine when it refused enjoin two related investigations by the New Jersey Division on Civil Rights. The investigations were undertaken after the Methodist Church's Ocean Grove Camp Meeting Association rejected requests to use its Boardwalk Pavilion for same-sex civil union ceremonies by two lesbian couples. (See prior posting.) Generally Younger prevents federal courts from interfering in pending state judicial or quasi-judicial proceedings when the parties will be able to raise their constitutional objections in the state proceedings. Since the state investigation related only to use of the chapel, the court remanded to the district court the broader request by the Association for a declaratory judgment relating to the use of the remainder of its property. A release by Alliance Defense Fund focuses on that portion of the decision. AP yesterday reported on the case. (See prior related posting.)

US Military Trains Afghan Army To Show Its Muslim Face To Locals

The Wall Street Journal yesterday reported on efforts by the U.S. military in Afghanistan to train the Afghan National Army to use religion to counter propaganda of the Taliban. Taliban fighters ride motorcycles through small villages telling locals that the Afghan army is led by godless Communists who are trying to rid the country of Islam. U.S. Army Capt. James Hill is training Afghan army mullah Lt. Col. Abdul Haq to counter this. He supplies Haq with prayer rugs to hand out in villages, installs loudspeakers so local residents can hear the call to prayer to soldiers on Afghan army bases, and encourages Afghan army personnel to mix with villagers to display their religious beliefs. Haq says: "The only way we can keep people from becoming Taliban is by promoting the Muslim nature of the Afghan National Army." [Thanks to ChristianFighterPilot.com for the lead.]

8th Circuit Upholds School's Literature Distribution Policy

In Roark v. South Iron R-1 School District, (8th Cir., July 16, 2009), the U.S. 8th Circuit Court of Appeals upheld a school district's policy on distribution of "printed material" in schools by outside organizations. The policy requires the organization to obtain advance approval, but approval will be given unless the material is libelous, obscene, or unlawful; advertises products or services; endorses a candidate; promotes alcohol, tobacco, drugs, or other illegal activity; or is likely to cause substantial disruption at the school. Distribution is limited to before and after school and lunch hour, and can take place only in front of the administrative offices or in a corner of the cafeteria.

Under a prior school policy, members of the Gideons were permitted to distribute Bibles in 5th grade classrooms during school hours. In a challenge to the policy, the district court entered a permanent injunction prohibiting any distribution of Bibles to elementary school children on school property during the school day. (See prior posting.) The Court of Appeals upheld the continuation of that injunction. The court then moved to consider whether to uphold the district court's declaratory judgment relating to the new policy. Chief Judge Loken, writing the primary opinion, said:

the Judgment neither enjoined the District from implementing the new policy nor declared that policy unconstitutional. Rather, it cross referenced an amended complaint seeking a declaration “that Defendants’ actions in instituting” the new policy violated the Establishment Clause. The precise import of the declaratory judgment is hopelessly obscure. Given its impact on the operations of a state governmental entity, this ambiguity alone requires reversal.

He then went on to also reject a facial Establishment Clause challenge to the new policy, finding that any major objection to it was obviated by the injunction that, as he read it, precluded the distribution of Bibles even under the new policy. Judge Beam concurring said he believes that the injunction only prohibits the earlier practice of distributing Bibles in classrooms. Judge Kyle concurred, saying that while he believes that the new literature distribution policy was passed for the purpose of promoting Christianity, he could concur because, in his view, "the portion of the court’s opinion discussing the new policy under Lemon is dicta...." Liberty Counsel yesterday issued a press release on the decision, as did Americans United.

Obama Nominates Jacqueline Berrien To Head EEOC

The White House announced yesterday that President Barack Obama has sent to the Senate the nomination of Jacqueline A. Berrien to chair the Equal Employment Opportunity Commission. Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). The announcement was made just hours before Obama spoke at the NAACP's annual meeting. (New York Times.) According to a White House press release which details her background, Berrien is a graduate of Harvard Law School where she served as General Editor of the Harvard Civil Rights-Civil Liberties Law Review. The EEOC enforces the nation's employment discrimination laws, including laws banning religious discrimination in employment.

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Washington Supreme Court Finds Permit Moratorium Violated Church's Rights

In City of Woodinville v. Northshore United Church of Christ, (WA Sup. Ct., July 16, 2009), the Washington state Supreme Court held that the city of Woodinville violated a church's free exercise rights protected By Art. I, Sec. 11 of the Washington Constitution when it refused to process the church's application for a temporary use permit so it could host a Tent City for the homeless for a period of 90 days. The city had placed a total moratorium on temporary use permits in the area in order to study the environmental effects of new development. Finding that the state constitution's free exercise protections are broader than those in the federal Constitution, the court said:

the City’s total moratorium placed a substantial burden on the Church. It prevented the Church from even applying for a permit. It gave the Church no alternatives.... The City failed to show that the moratorium was a narrow means for achieving a compelling goal. Therefore, the City’s action constituted a violation of article I, section 11 of our constitution.

The court also held that while the church had previously agreed that it would not host another Tent City without obtaining a use permit, under the unique circumstances of this case it was excused from performance of the agreement.

A concurring opinion by Justice Sanders (joined by Justice Chambers) argued that a city cannot constitutionally condition a church's use of its own property on its applying for a use permit. He also concluded that the city's action violated RLUIPA, so the church was entitled to recover damages and attorneys' fees. Yesterday's Merced (CA) Sun-Star reported on the decision.

South Africa's Constitutional Court Protects Widows In Polygamous Muslim Marriages

On Wednesday, South Africa's Constitutional Court held that all the wives in a polygamous Muslim marriage are entitled to claim a share of their husband's property when the husband dies without leaving a will. In Hassam v. Jacobs NO, (So. Afr. Const. Ct., July 15, 2009), the court was reviewing a lower court decision holding that section 1(4)(f) of the Intestate Succession Act was inconsistent with the Constitution to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir. As described by a Media Summary released by the Court:

Nkabinde J writing for a unanimous Court confirmed the declaration of constitutional invalidity made by the High Court albeit in a slightly different manner. She held that the objective of the Act, which is to lessen the dependence of widows on family benevolence, would be frustrated if the continued exclusion of widows in polygynous Muslim marriages were to persist. Nkabinde J held further that the Act violates the applicant’s right to equality. The exclusion of women in the position of applicant from the protection of the Act unfairly discriminates against them on the grounds of religion, martial status and gender. This exclusion is not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.

In concluding, Nkabinde J held that the word "spouse" in the Act is not reasonably capable of being understood to include more than one spouse in the context of a polygynous marriage. To remedy the defect, the words "or spouses" are to be read-in after each use of the word "spouse" in the Act.

South Africa's Business Day reported on the decision.

Senate Passes Hate Crimes Bill As Amendment To Defense Authorization Act

On Thursday night, the U.S. Senate agreed to add the Matthew Shepard Hate Crimes Prevention Act as an amendment to the 2010 National Defense Authorization Act. First by a vote of 78-13, the Senate agreed to an amendment clarifying that the hate crime provisions should not be construed or applied to infringe on First Amendment rights. Then the Senate voted 63-28 to invoke cloture on the hate crimes bill. Voice vote passage immediately followed. (AP). (See prior related posting.)

UPDATE: Here is the text of the amendment, offered by Sen. Brownback and adopted by the Senate, intended to protect First Amendment rights:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to--
(1) plan or prepare for an act of physical violence; or
(2) incite an imminent act of physical violence against another.

Section 10 of the Hate Crimes Prevention Act also contains other provisions on construction of the Act and free expression.

Article Profiles Activities of Child Evangelism Fellowship

The August issue of Harper's magazine carries a long article by by Rachel Aviv titled Like I Was Jesus: How To Bring a Nine Year Old To Christ. It explores the work of Child Evangelism Fellowship, the group that won an important Supreme Court victory in 2001 in Good News Club v. Milford Central School . The case gave CEF's after-school Bible group, the Good News Club, the right to equal access with secular groups to use of school premises after school hours. Aviv's article focuses largely on CEF's summer work in a poor neighborhood in Connecticut, where teenage missionaries bring children to Christ through a week-long Bible club conducted in a neighborhood park near their housing project. Aviv also visits a camp at which teenage missionaries are trained, among other things, in how to use the "EvangeCube"-- a plastic toy that tells the Gospel story in pictures.

Discussing the aftermath of the Supreme court's Good News Club case, Aviv reports:

Since the ruling, the Fellowship, funded by donations, has engaged in more than twenty follow-up suits against schools that refused to comply with the Milford decision. Hundreds of other cases not directly involving the Fellowship have cited the ruling, leading to a level of church-state entanglement that had been prohibited for decades. Meanwhile, the number of Good News Clubs in public schools has quietly and steadily swelled. The ministry held 1,155 after-school clubs in 2000; in 2007, there were 3,956, reaching 137,361 children. Jaimie Fales, the Fellowship’s spokesperson, says that she still hears people complaining about the good old days before "they took God out of the schools. I have to remind them, ‘Hey, listen, you can have prayer in public schools! You can have the Bible in public schools! That’s just complaining. We can do it. We just got to get up and actually do it! The Supreme Court flung the doors wide open.’"

[Thanks to the article's author for sending the PDF.]

Minister's Editorial Is Not Basis For Revoking His Probation

A Michigan appellate court, while upholding the conviction of Rev. Edward Pinkney for paying voters $5 apiece to vote in an election for the recall of a city commissioner and for possessing absentee ballots, reversed the lower court's revocation of Pinkney's probation. As a condition of probation, the trial court had required that Pinkney refrain from "any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening, or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or internet."

Shortly after the trial court denied Pinkney's request for a new trial, he wrote an editorial for a Chicago monthly newspaper charging the judge who denied his motion with being a racist, and said he was "dumb" and "corrupt." One paragraph in the editorial, paraphrasing several verses from Deuteronomy, said:

Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed [sic] shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

In People of the State of Michigan v. Pinkney, (MI Ct. App., July 14, 2009), the state court of appeals held that revoking Pinkney's probation for writing the editorial was improper. It held:

To the extent that the prohibition of defamatory and demeaning behavior impinges on defendant’s first amendment rights, the prohibition was not proper, as it was not directly related to defendant’s rehabilitation or to the protection of the public.

The court concluded that it need not decide whether the paraphrase of Biblical verses violated the parole condition barring threatening behavior. It said:

Plaintiff agrees that the paraphrase of Deuteronomy 28 "is not defensible as anything other that [sic] hyperbole" and that the paraphrase could not serve as a lawful basis for revoking defendant’s probation.

AP yesterday reported on the decision. An ACLU press release on the decision contains links to several briefs supporting Pinkey's position that were filed in the case.

Sotomayor Questioned About Her Free Exercise Jurisprudence

Finally yesterday, in the third day of Judiciary Committee hearings on the confirmation of Judge Sonia Sotomayor as Associate Justice of the United States Supreme Court, one Senator asked her a question about her decisions on religious freedom. Here, from the full transcript, is the relevant exchange between her and Sen. Benjamin Cardin (D-MD):

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.
Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

Also yesterday, Sen. Jeff Sessions entered into the record a letter (full text) from Richard Land, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, opposing Sotomayor's confirmation.

The Washington Post has transcripts of the questioning of Sotomayor by each of the Senators on the Judiciary Committee.