Religion Clause

Monday, August 03, 2009

Court Says Atheists Challenging School Program May Not Proceed Anonymously

In Freedom from Religion Foundation v. Creek, 2009 U.S. Dist. LEXIS 65818 (D CO, July 22, 2009), a Colorado federal magistrate judge denied plaintiffs' request that they be allowed to proceed using pseudonyms. Plaintiffs were atheists who were challenging as a violation of the Establishment Clause a Colorado school district's adoption of a program known as "40 Developmental Assets." Plaintiffs cited public views toward atheists and the fact that their children were parties to the case. The court held that a mere unsubstantiated potential for adverse public reaction does not justify proceeding anonymously. In particular, the court concluded that the children were not necessary parties to the litigation and criticized plaintiffs for bringing them in unnecessarily to justify the parents' proceeding under pseudonyms. The amended complaint in the case was filed after an earlier complaint challenging the same program was dismissed. (See prior posting.)

Sunday, August 02, 2009

India's High Court Prospectively Bars Shrines On Public Land

Merinews and the Calcutta Telegraph report on a decision handed down Friday by a 2-judge panel of the Supreme Court of India regarding the building of religious shrines. The decision involved an appeal by the Central government of an order against the government of Gujarat requiring it to remove all religious shrines that encroach on public land. The Apex Court ruled that existing shrines need not be relocated, but ordered the Solicitor General to draft guidelines to prevent future construction of shrines that encroach on public land.

Suit Threatened Against British Photographer Who Used Church For Photo Shoot

In Cornwall, England, attorneys for the vicar of the 13th century Anglican church in St. Michael Penkivel have threatened photographer Andy Craddock with legal action. Yesterday's London Daily Mail reports that Craddock and his girlfriend walked into the open church building with two models who posed for an erotic photo shoot, using the the church interior as a backdrop. Rev. Andrew Yates's solicitor says that the photos, published on Craddock's website, are blasphemous and has threatened to sue Craddock for trespass. He says public access to the church is only for worship or related church activities and that Craddock did not have permission for the photography session. In 2005, the church was used to film Rowan Atkinson's comedy about a serial killer, Keeping Mum. Craddock said: "How is it worse having someone naked in the church than having a film set there about murder and death? If the parishioners are upset by the naked girls on their altar, why are they not as upset about murders set around the church and the village?"

Establishment Clause Challenge To Homeless Shelter Lease and Sale Moves Ahead

In Community House, Inc. v. City of Boise, 2009 U.S. Dist. LEXIS 65958 (D ID, July 29, 2009), an Idaho federal district court refused to grant defendants summary judgment and allowed plaintiffs to move ahead on their Establishment Clause challenge to the city of Boise's lease and eventual sale of a homeless shelter to Boise Rescue Mission. The court also permitted a challenge under Idaho's constitution to move ahead. Among other violations alleged in the lawsuit was religious discrimination in violation of the federal Fair Housing Act. However the court concluded that nothing had been presented by plaintiff to support the allegation. The decision dealt with a number of other discrimination claims as well growing out of the lease and sale. A preliminary injunction had already been granted during the lease and before the sale involved in the case. (See prior related posting.)

Religious Discrimination Challenges To Placement On No-Fly List Dismissed

In Ibrahim v. Department of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (ND CA, July 27, 2009), Rahinah Ibrahim, a Muslim woman who is a citizen of Malaysia and was a graduate student at Stanford University in 2005, challenged the placement of her name on the Transportation Security Administration's no-fly list and her treatment at the San Francisco airport. This decision involves Ibrahim's amended complaint after a decision on various issues in the case by the 9th Circuit. Ibrahim claimed that placing her name on the no-fly list violated her right to freely exercise her religion, her right to freely associate with other Muslims and Malaysians, her right to be free from unreasonable searches and seizures, and her rights to equal protection and procedural due process. The court, however, held that since Ibrahim had now returned to Malaysia, she cannot maintain her action for future relief because the Constitution does not apply extraterritorially to protect non-resident aliens outside the country.

As to Ibrahim's claim for damages on the basis of her past treatment at the San Francisco airport, under the Supreme Court's recent decision in Ashcroft v. Iqbal her allegations were not strong enough to create a plausible case of religious and national origin discrimination. This claim was dismissed with leave to amend after discovery in other aspects of her case. Her claim that her hijab was temporarily removed by a police officer searching her was not sufficient to state a claim for violation of religious expression. Ibrahim was permitted to proceed against airport, police and city officials on claims of false imprisonment and interference with civil rights, and against all defendants on Fourth Amendment and emotional distress claims.

Recent Prisoner Free Exercise Cases

In Smith v. Ozmint, (4th Cir., July 31, 2009), the U.S. 4th Circuit Court of Appeals held that the South Carolina Department of Corrections had not justified under RLUIPA its policy of forcibly shaving the heads of maximum security inmates who wear long hair as a matter of religious belief. At the summary judgment stage, defendants had not shown that the policy furthers a compelling governmental interest in space utilization, hygiene, and security by the least restrictive means.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 63515 (ED AR, June 26, 2009), an Arkansas federal magistrate judge recommended that an inmate be permitted to proceed against several state corrections officials. Plaintiff claims that defendants' enforcement of a Department of Corrections policy prohibiting the use of tobacco violates his free exercise rights.

In Perkins v. Booker, 2009 U.S. Dist. LEXIS 64092 (WD MI, May 29, 2009), a Michigan federal magistrate judge recommended rejecting a summary judgment motion filed by two defendants in a prisoner's claim against them charging infringement of his Free Exercise rights and his rights under RLUIPA. At issue was whether plaintiff was properly removed from the prison's kosher food program.

In Brown v. Unfried, 2009 U.S. Dist. LEXIS 64520 (SD IL, July 27, 2009), an Illinois federal district court refused to strike plaintiff's free exercise claim finding that allegations the Madison County Jail refused to accommodate plaintiff's observance of Ramadan are separate from a retaliation claim filed by plaintiff.

In Forde v. Zickefoose, 2009 U.S. Dist. LEXIS 65616 (D CT, April 2, 2009), a Connecticut federal district court refused defendants' motions for summary judgment and permitted a woman federal prisoner who had converted to Islam to move ahead with her claims under RLUIPA and the First amendment. Plaintiff objected to prison policies that subject her to non-emergency pat-down searches by male guards, compel her to use an identification photo that shows her without her hijab, and which fail to provide a qualified imam for weekly jum'ah prayer services.

Religion News Service yesterday reported more broadly on the issues involved in prisoner access to religious materials.

Developments In Two Faith Healing Trials

There have been developments in two separate cases in which parents who relied on faith healing instead of seeking medical assistance were charged in the deaths of their children. In Wausau, Wisconsin, Dale Neumann was convicted Saturday of second degree reckless homicide in the 2003 death of his daughter. AP reports on the conviction in the death of eleven-year old Madeline Neumann who was suffering from undiagnosed diabetes. She died in a coma on the floor of the family's rural home, surrounded by people praying for her. The girl's mother was already convicted in a separate trial. Sentencing will be Oct. 6. The couple faces up to 25 years in prison. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Meanwhile, in Oregon City, Oregon Friday, Craig Worthington, who was acquitted last month of all charges except second degree criminal mistreatment in the death of his 15-month old daughter (see prior posting), was sentenced to two months in jail and 5 years probation. He was also ordered to provide medical care for his other children. AP reported on the sentencing. Friday's Salt Lake Tribune also discusses the case.

Saturday, August 01, 2009

New IRS Form 990 Pushes Non-Profits To Comply With State Rules

Beginning this year, a newly designed IRS annual return on Form 990 must be filed by non-profits. While churches and various church-affiliated organizations are exempt from filing the form, other religious organizations must do so. An article yesterday in On Philanthropy , as well as an earlier article in Nonprofit Business Advisor, point out that among the new questions on Form 990 is Section C, Line 17 asking for a list of all states in which a copy of the federal Form 990 is required to be filed. This effectively requires the non-profit to list all states where its compliance with state charity registration laws is necessary. Schedule G , Question 3, asks where the organization is registered or licensed to solicit funds. The articles say that in the past many charities have ignored state requirements, but the new federal Form 990 questions are likely to change that. Organizations will need to determine whether their activity-- particularly their online activity-- amounts to a solicitation in various states. They will also need to look closely at the widely differing exemptions from state to state.

5th Circuit Says Ban On Santeria Sacrifices Violates Texas RFRA

In Merced v. Kasson (consolidated with Merced v. City of Euless) , (5th Cir., July 31, 2009), the U.S. 5th Circuit Court of Appeals held that a city's prohibition of animal sacrifices essential to Santeria religious practice violates the Texas Religious Freedom Restoration Act (TRFRA). Jose Merced, a Santeria priest, had been ritually sacrificing sheep, goats and turtles in a room attached to his garage approximately once a year for 16 years without incident when the city of Euless, Texas informed him that he could no longer do so under its ordinances. Merced sued seeking an injunction to prevent enforcement of the ordinances against him.

Reversing the trial court, the 5th Circuit concluded that the ordinances substantially burden Merced's free exercise of religion. It also concluded that (while a close case) the city failed to show that it had a compelling interst in barring Merced's activities, and that the ordinances completely banning Merced's slaughter of four-legged animals are not the least restrictive means of carrying out the city's interests. The district court had found no burden, saying Merced had not proven that orishas required sacrifices to be located at his home. (See prior posting.) The 5th Circuit said, among other things, that "predicating a substantial burden on the results of a religious ceremony (divining the will of the orishas) impermissibly allows judges to evaluate the intricacies of a religious practice." By relying on TRFRA, the court avoided having to deal with the constitutional free exercise claim that Merced had also raised. Yesterday's Fresno Bee, reporting on the decision, says that the city of Euless plans to seek a rehearing.

UPDATE: A press release on the case from Becket Fund links to briefs in the case and to a recording of the oral arguments.

Authorities Investigating Muslim Violence Against Christians In Pakistani City

In Pakistan's province of Punjab, in the city of Gojra, violence broke out Saturday between Muslim extremists (members of the banned Sipah-e-Sahaba group) and Christians. AP reports that hundreds of Muslims began torching Christian homes after a false report that a Quran had been defaced. At least six Christians (including a child) were killed and ten were wounded. Subsequently shots were fired on a peaceful Muslim procession passing a Christian neighborhood. Paramilitary forces were sent to assist police. According to Geo News, Punjab’s Chief Minister, Shahbaz Sharif, promising harsh punishment of those who took the law into their own hands, has ordered a judicial inquiry into the incident.

UPDATE: The New York Times on Sunday posted a more personalized account of the situation in an article titled Hate Engulfs Christians in Pakistan.

Vietnam Orders Buddhist Monks To Leave Monastery

The New York Times today reports on the standoff between Vietnamese authorities and Buddhist monks at Bat Nha Monastery. They were ordered last October by the chairman of Vietnam’s National Committee on Religious Affairs to leave the monastery. The monks, who are followers of Zen master Thich Nhat Hanh, have been training other monks there since 2005 after Hahn—who developed the philosophy called Engaged Buddhism-- was welcomed back from 39 years of exile in France.

The monastery’s problems with authorities began after Hanh made statements in support of the Dalai Lama and urged broader religious freedom in Vietnam. In ordering Hanh’s followers to leave, the government claimed that Plum Village, Hanh’s monastery in southern France, had published false information about Vietnam on its website. On June 27, power was cut to the Monastery compound and two days later a mob threw rocks and animal excrement at an official Buddhist delegation that came to investigate. Government authorities say the problems are caused by disputes between Hanh’s followers and Abbot Duc Nghi, the original owner of the property at Bat Nha. Hanh’s followers have invested over $1 million in expanding the monastery compound.

Friday, July 31, 2009

10th Circuit Denies En Banc Review In 10 Commandments Case By 6-6 Vote

By a vote of 6 - 6 yesterday, the judges on the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a Ten Commandments case. The 3-judge panel had invoked the Establishment Clause to invalidate a display of the Ten Commandments on the courthouse lawn in Stigler, Oklahoma. (See prior posting.) In Green v. Haskell County Board of Commissioners, (10th Cir. en banc, July 30, 2009), two dissenting opinions to the denial of en banc review were filed. Judge Kelly's dissent, joined by Judges Tacha and Tymkovich said:

The Court’s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country’s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.... The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry....

A second dissent written by Judge Gorsuch and joined by Judges Tacha, Kelly and Tymkovich criticized the panel's application of the Lemon test and went on to contend:

[By] making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.

As is typical, none of the judges voting to deny review wrote an opinion. [Thanks to Peter Irons for the lead.]

IRS Is Investigating Virginia Church

According to the Washington Post, the IRS is investigating Sterling, Virginia's Calvary Temple. (Washington Post background article on Calvary Temple.) The investigation is apparently focused on Pastor Star R. Scott who controls the church's $8.5 million in real estate and hundreds of thousands of dollars of autos used in a "racing ministry." Scott told his congregation that 8 IRS agents interviewed him for five hours earlier this month. They asked about church credit cards that he uses for vacation homes, travel and entertainment. They also sought information about the church's K-12 school, apparently concerned whether supposed donations from parents should really be treated as tuition for tax purposes. The school charges no formal tuition.

Nigerian Islamist Leader Killed In Police Custody

Nigeria's Vanguard yesterday reported that Mohammed Yusuf, head of the fundamentalist Islamic group Boko Haram, has been killed after being taken into police custody. Recent violence in northern Nigeria by Boko Haram rebels has killed some 300. (See prior posting.) After the announcement of Yusuf's death yesterday, Nigerian President Umaru Yar'Adua told northern governors to mobilize traditional and religious leaders to oppose the Boko Haram. In particular, the President wanted governors to encourage religious leaders to preach on the dangers of extremist groups at Friday Juma'at services in all Mosques. Meanwhile, Reuters has published a Q&A on the Boko Haram (which means "Western education is sinful") and on the recent violence in Nigeria.

Settlement Reached In Church's Use of Pensacola FL Park

Alliance Defense Fund yesterday announced that a settlement has been reached in the lawsuit brought against the city of Pensacola, Florida by St. Faustina Old Catholic Church challenging restrictions on use of a downtown park for a weekly picnic by a Bible study group that shared its food with the hungry. (See prior posting.) Apparently under the settlement, the church will be allowed to hold picnics in the park during summer months, but concern about preserving park grass has led to a ban on use by large groups during the winter.

Some Polish Catholics Protest Upcoming Madonna Concert

August 15 is the Catholic feast of the Assumption of the Holy Virgin Mary. Freemuse and Indeks 73 both report this week that in Poland, conservative Catholics are protesting the Madonna concert scheduled for that day in Warsaw. Appeals are being made to the President of the city Warsaw, the mayor of Bemowo (the Warsaw district where the concert is going to take place) and the Minister of the Interior and Administration to convince them to cancel or postpone the concert. Unum Principium Association spokesperson Krzysztof Zagozda says the scheduled concert is "an Anti-Christian provocation." In addition to the timing, an online petition says that some of Madonna's shows feature her climbing a cross, contain obscene gestures and promote homosexuality. Janusz Kochanowski, spokesperson for Citizens' Rights, says the concert will hurt the "religious feelings" of Catholics in violation of the Art. 196 of Poland's Criminal Code (link to Polish version). Others however say that cancelling the concert would infringe the dissemination of artistic creation in violation of Art. 73 of the Polish Constitution.

Judge Allows Temporary Occupancy of Synagogue After Code Controversy

The Middletown (NY) Times Herald-Record yesterday reported on a building code controversy between the town of Bethel, New York and the local Satmar Bungalow Colony of Hasidic Jews. Apparently town building inspector Tim Dexter issued a building permit for a synagogue and community center building without plans havng gone through the town Planning Board. Brooklyn-based United Talmudical Academy rapidly constructed the building and began using its upper floor prayer space before obtaining a certificate of occupancy. The basement is not yet finished. Dexter inspected the building as it was being built and was ready to issue a temporary certificate of occupancy when town Supervisor Dan Sturm had the city issue a stop work order and an order to vacate the building. The synagogue sued.

After County Court Judge Frank LaBuda personally toured the building, he granted a six-week temporary occupancy certificate, and ordered UTA to allow engineers into the building. According to the River Reporter, the judge had some safety concerns, such as door opening inward instead of outward, but he allowed the building to be used temporarily for religious purposes. No meals or other activities may take place there. Meanwhile the Town board has ordered an investigation of the town's Building Department. Lawyers and engineers will look into 6 to 10 projects.

UPDATE: Judge LaBuda has filed a written opinion granting the temporary occupancy certificate. It is United Talmudical Academy Torah V'Yirah, Inc. v Town of Bethel, (Sup. Ct. Sullivan Co., Aug. 24, 2009).

Navy Affiliated Website Ends Ban On Religious Discussion Groups

Last month, Liberty Counsel complained to the Navy about the discussion board Guidelines on its Navy for Moms website. They banned religious discussions and the creation of religious discussion groups on the site. (See prior posting.) On Wednesday, Liberty Counsel announced that the Guidelines have been modified. In a letter (full text) to Liberty Counsel, the Navy says it is removing restrictions on religious and political debate. The new Community Guidelines do provide: "Slurs, stereotyping, hate speech, and other forms of discrimination based on any race, color, religion, national origin, disability, or sexual orientation are not permitted. This is not a venue for you to harass or personally attack others."

Thursday, July 30, 2009

Federal Claims Court Agrees That Religious Foundation Is Not A "Church"

In Foundation of Human Understanding v. United States, (Fed. Cl., July 21, 2009), the U.S. Court of Federal Claims agreed with the Internal Revenue Service that the Foundation of Human Understanding, while qualifying as a non-profit organization, had lost its status as a "church" under IRC § 170(b)(1)(A)(i). This determination meant that the organization became subject to the rules for private foundations in IRC § 509. The IRS has developed 14 criteria to use in determining church status. While the Foundation met some of these, the court held that it did not meet the threshold requirement that it "serve an associational role in accomplishing its religious purpose." It concluded: "The extent to which Foundation brings people together to worship is incidental to its main function which consists of a dissemination of its religious message through radio and internet broadcasts, coupled with written publications."

Atheist Delivers Protest Invocation At County Commission Meeting

On Tuesday in Cobb County, Georgia, Edward Buckner, president of American Atheists and candidate for state Attorney General, used the invocation time at the county Board of Commissioners meeting to stage a protest against invocations. Today's Atlanta Journal Constitution reports that Bruckner requested that he be allowed to deliver the invocation, and that Commission chairman Samuel Olens granted the request. At Tuesday's meeting Olens told those in attendance that federal law requires him to allow anyone who signs up to deliver the invocation. In his remarks, atheist Buckner announced that he was speaking for "the 700,000 people who live in this county — especially the majority (yes, over half) of those 700,000 who are not members of any church, mosque, temple, or other religious organization,." He went on: "I speak as well for those political leaders who despair that success in politics cannot be achieved without hypocritical piety from politicians and who would prefer to run for office and to govern based on competence and political philosophy rather than on beliefs, real or pretended, in any supernatural beings." Chairman Olens said he found Bruckner's comments "repugnant and insulting."

AU Wants Senate Committee To Question Army Head Nominee On Church-State Issues

Today, the Senate Armed Services Committee holds a hearing to consider the nomination of John M. McHugh as Secretary of the Army. McHugh is currently a Republican member of the House of Representatives from New York, and was previously the ranking member of the House Armed Services Committee. He was nominated in June by the President. In a press release earlier this week, Americans United questioned McHugh's views on church-state matters. In a letter to the Committee (full text), AU urged that the hearings "ascertain the nominee's views on the pervasive problem or religious coercion and proselytizing in the U.S. military." The letter says that McHugh's voting record in the House on these issues is troubling.

UPDATE: Blog from the Capital reports that at his confirmation hearing, the only question directed to McHugh about religion in the military was one by Senator Jack Reed who asked about religious freedom for soldiers. McHugh responded by saying that military chaplains "must be sensitive" to the diversity of troops and must avoid proselytization except in church services conducted on personal time.

Jordan's Parliament Split On Religious Groups Under Societies Act

For a year, Jordan's Parliament has been debating amendments to the Societies Act which governs the operation of civil society organizations. (Background). Today's Jordan Times reports that the latest controversy surrounds a government proposal, approved by the Senate but rejected by the House of Representatives, that would allow all non-Muslim organizations to operate in the country under the law. Deputies who opposed the provision say it would open the way for the licensing of Jewish organizations. They instead approved a provision that would only allow Christian non-profits, in addition to Muslim ones. Minister of Justice Ayman Odeh says that limiting the law to Christian groups is inconsistent with language in the Constitution. It also creates problems for some churches already working in Jordan that are not considered "Christian" by the country's Council of Churches. Next week, the two houses of Parliament will meet in a joint session to consider the matter, as required by Jordan's constitution when there has been a disagreement between chambers.

Faith-Based Alternatives To Traditional Insurance Pose Issue Under Reform Legislation

Amidst the many complexities of health care reform is the little-noticed problem of faith-based health care sharing ministries. BeliefNet yesterday reported on the concern of these Christian groups over whether they will be considered appropriate insurance under the insurance mandate that is likely to be in new legislation. These religious groups pass on monthly fees from members to other participants who have incurred medical expenses. Some 100,000 Christians have chosen this as an alternative to traditional health insurance. They see it as responding to the mandate to help fellow-believers. Some insurance officials, however, are concerned that there is no guarantee these cost-sharing ministries will in fact cover participants' expenses.

IRS Drops Church Investigation Until Procedural Problems Are Resolved

The Internal Revenue Service earlier this month sent a letter (full text) to the Minnesota-based Warroad Community Church indicating that it is closing an ongoing investigation of the church "because of a pending issue regarding the procedure used to initiate the inquiry." Presumably the procedural problem stems from a decision by a Minnesota federal district court in January holding that IRS rules have improperly delegated authority to open a church tax inquiries. (See prior posting.) According to an Alliance Defense Fund release, Warroad Pastor Gus Booth was one of those participating in ADF's Pulpit Initiative to openly challenge the constitutionality of the 1954 Johnson Amendment which precludes tax exempt non-profit organizations from endorsing or opposing political candidates. Booth had sent copies of two of his sermons to the IRS. AP reports that Pastor Booth plans to continue preaching about politics. The IRS letter says that it may open a new inquiry once procedural issues are resolved.

Tarek ibn Ziyad Academy Counterclaims Against ACLU

In Minneapolis (MN) yesterday, the Tarek ibn Ziyad Academy, a charter school being sued for promoting Islam, filed a counterclaim against the ACLU. Last week, a federal district court upheld the ACLU's standing to bring an Establishment Clause claim against the school. (See prior posting.) Now, according to the Minneapolis Star-Tribune and the St. Paul Pioneer Press, TiZA claims that the ACLU has injured its reputation by calling it "theocratic," and has hurt its ability to hire qualified teachers. Ten applicants withdrew from consideration and the school has unfilled positions. The pleadings also claim that the ACLU's lawsuit damaged the school's learning environment and caused several students to withdraw. TiZA is seeking damages totaling $100,000.

Suit Challenges Selective Service Handling of Conscientious Objectors

Twenty-one year old Tobin D. Jacobrown, a Quaker, yesterday filed a lawsuit in federal district court in Washington, DC, challenging the Selective Service System's refusal to include space to register as a conscientious objector on current selective service forms. The Washington Post reports that forms used to collect information on potential draftees in case a draft is ever re-instituted do not allow for a CO claim. Instead, Selective Service instructions allow the individual to claim the status only if a draft is re-instituted. Jacobrown is unwilling to follow the lead of some others and merely write in his CO claim on the current registration card, since the claim is never recorded by the government. Instead he has refused to register entirely. His lawsuit claims that the Religious Freedom Restoration Act requires the government to find a way to keep track of conscientious objectors who file.

Wednesday, July 29, 2009

Government Report Says Most Volunteering Is Through Faith-Based Organizations

The Corporation for National & Community Service, a federal agency, yesterday announced that it has issued a new report titled Volunteering in America 2009 (Research Highlights). A portion of the research focuses on Volunteering in America's Faith-Based Organizations. It found that faith-based organizations attract the most volunteers. In 2006-2008, 35.9% of all volunteers worked with religious organizations. The percentages are even higher among older volunteers and African-American volunteers. Also, faith-based organizations had the highest retention rate of volunteers (70%) from year to year.

New York's Syrian Jewish Community Reacts To Rabbis' Arrests

New York's Jewish Week and the Forward in two articles yesterday both reported on reactions within Brooklyn NY/ Deal NJ's close-knit Syrian Jewish community to last week's indictment of six rabbis-- 3 of them prominent in the Syrian community. Charges by federal authorities in New Jersey focused on money laundering by the rabbis. A number of others among the 44 individuals arrested were charged with political corruption. (See prior posting.) Some of the accused rabbis are under pressure from lay leaders to immediately resign from their pulpits. Morris Bailey, chairman of the Sephardic Community Alliance, wrote in an internal community memo: "If over time ... these charges prove to be true, we must be clear that we find this conduct reprehensible and that the alleged actions go against the very values and teachings that our community holds dear." The most prominent of those arrested was 87-year old Rabbi Saul Kassin. He is out on $200,000 bail. Others are out on bail as well.

Some in the community are criticizing FBI informant, Solomon Dwek, son of a Syrian Jewish rabbi in Deal, New Jersey. Dwek was a key in obtaining evidence against those arrested. On Saturday, Dwek's father denounced the concept of Jews informing on each other during a study session at his synagogue. Then, to emphasize the point, Rabbi Dwek co-taught a class with Rabbi Edmund Nahum, one of those arrested and released on bail. On a Jewish radio program Saturday night, Sam Hirsch, a former Borough Park assemblyman, called for Solomon Dwek to be ostracized by the community. He also analogized Dwek to the halachic concept of a moser, the Jewish informer who was to be executed. Hirsch backed off his remark later.

The Forward article also has a lengthy discussion of the possible impact of the indictments on the rivalry between factions in Deal's Orthodox Jewish community.

"WWJD" Debt Collection Suit Voluntarily Dismissed After Counterclaims Filed

Both AP and a Liberty Counsel press release yesterday report that a lawsuit under the Fair Debt Practices Collection Act against Bullseye Collection Agency of Monticello, MN has been voluntarily dismissed. The suit was brought by Mark and Sarah Neill who received a collection letter from Bullseye with "WWJD" (What Would Jesus Do?) at the top. The lawsuit claimed that this was an unfair collections practice because it had the effect of invoking shame or guilt. (See prior posting.) It turns out, however that plaintiff Mark Neill is the president of a rival collection agency, Bureau of Collection Recovery. So defendants filed a counterclaim alleging abuse of legal process and conspiracy to harm Bullseye competitively and to infringe its constitutional rights. Both sides have agreed to a dismissal with prejudice.

Indiana Atheist Bus Campaign Lawsuit Settled

AP reported Monday that the Indiana Atheist Bus Campaign has settled its federal lawsuit against the Bloomington Public Transportation Corporation. IABC had been refused ad space to run its ad reading: " You Can Be Good Without God." (See prior posting.) Under the settlement agreement, IABC will be permitted to buy as much ad space as it wants on Bloomington busses at standard ad rates. The transit company will also pay a substantial portion of the legal fees incurred in the suit brought by ACLU-Indiana. IABC has posted a video of the transit system board's approval of the settlement. [Thanks to Scott Mange for the lead.]

Tuesday, July 28, 2009

Dearborn (MI) Wrestling Coach Sues Principal Claiming Religious Bias

In Dearborn, Michigan (a city with a large Muslim population), a long-serving and "legendary" high school wrestling coach who was fired has filed a federal religious discrimination lawsuit against the principal of Fordson High School and the Dearborn school system. Plaintiff Gerald Marszalek and two of his three assistant coaches were practicing Christians. One of the assistants, volunteer coach Trey Hancock, is a Christian minister and the father of a state champion wrestler. Tensions between principal Imad Fadlallah (a Muslim) and Coach Marszalek came to a head as the result of a Muslim student's decision to convert to Christianity after attending a summer wrestling camp run separately by Trey Hancock. The principal ordered Marszalek to bar Hancock from entering Fordson High School, and ordered him not to mention Hancock or his independent wrestling club. In 2008, Fadallah terminated Marszalek as wrestling coach.

The complaint (full text) in Marszalek v. Fadlallah, (ED MI, filed 7/27/2009), alleges more broadly:

57. Defendant Fadlallah, since assuming duties as Fordson’s principal in 2005, has systematically weeded out Christian teachers, coaches, and employees, and has terminated, demoted, or reassigned them because of their Christian beliefs, expressions, and associations. Defendant Fadlallah acts in this manner because Christian beliefs are inconsistent with his personal Muslim beliefs.

58. Defendant Fadlallah has publicly stated "he sees Dearborn Fordson High School as a Muslim school, both in students and faculty, and is working to that end," or words to that effect.

The lawsuit, challenging Marszalek's firing, alleges discrimination, due process violations, and infringement of free exercise, speech and association rights under various provisions of the U.S. and Michigan constitutions. It also alleges violations of Michigan's Elliot-Larsen Civil Rights Act and a claim for tortious interference with advantageous business relationships. Yesterday's Detroit Free Press reported on the lawsuit.

A press release by the Thomas More Law Center that filed the suit on behalf of Marszalek quotes TMLC president Richard Thompson, who made a broader assertion. He said: "We are getting a glimpse of what happens when Muslims who refuse to accept American values and principles gain political power in an American community. Failure to renew coach Marszalek’s contract had nothing to do with wrestling and everything to do with religion."

Japan's Catholic Bishops Says Clergy Should Not Serve As Citizen Judges

Asahi Shimbun and Bloomberg News today report on the message (full text) issued last month by the Catholic Bishop's Conference of Japan on Catholic participation in Japan's new "citizen judge" system. The system, introduced in May, has citizens sitting alongside professional judges in serious criminal cases. The Bishops say that lay Catholics are free to participate: "Enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role." However the Bishops say that clergy should refuse to serve. They should indicate their opposition to serving and if nevertheless they are elected, they should refuse to participate in the trial and pay the prescribed fine of up to 100,000 yen. The Code of Canon Law, Canon 285, §3 provides: "Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power."

Author Criticizes Religious Views of Nominee For Head of NIH

Author Sam Harris published an op-ed in yesterday's New York Times criticizing President Obama's nomination of Francis Collins to head the National Institutes of Health. Collins has been presented as a strong advocate of the compatibility of science and religion. (See prior posting.) Harris argues, however, that Collins' views would "seriously undercut fields like neuroscience and our growing understanding of the human mind." Harris says: "Most scientists who study the human mind are convinced that minds are the products of brains, and brains are the products of evolution. Dr. Collins takes a different approach: he insists that at some moment in the development of our species God inserted crucial components — including an immortal soul, free will, the moral law, spiritual hunger, genuine altruism, etc."

At Washington Meeting With Chinese, Obama Raises Religious Freedom Issue

Yesterday, the first U.S.-China Strategic and Economic Dialogue opened in Washington with some 200 Chinese officials in attendance. President Obama spoke at the conference which is co-chaired by Secretary of State Hillary Rodham Clinton and Treasury Secretary Timothy F. Geithner. (Washington Post). Yesterday's Fresno Bee reports that the 2-day conference is part of a series of rotating meetings between top US and Chinese economic and foreign policy officials that began in the Bush administration. In his remarks opening the Conference yesterday (full text), President Obama made reference to human rights and religious freedom concerns:

[T]he United States respects the progress that China has made by lifting hundreds of millions of people out of poverty. Just as we respect China's ancient and remarkable culture, its remarkable achievements, we also strongly believe that the religion and culture of all peoples must be respected and protected, and that all people should be free to speak their minds. And that includes ethnic and religious minorities in China, as surely as it includes minorities within the United States.
Support for human rights and human dignity is ingrained in America. Our nation is made up of immigrants from every part of the world. We have protected our unity and struggled to perfect our union by extending basic rights to all our people. And those rights include the freedom to speak your mind, to worship your God, and to choose your leaders. These are not things that we seek to impose -- this is who we are. It guides our openness to one another and to the world.

The White House has posted a press release and video of the President's remarks.

Nigerian Rebels Demanding Sharia Expand Attacks On Security Forces

Toronto's National Post reports that in Nigeria, the Muslim rebel group Boko Haram on Monday expanded its attacks against Nigerian security forces to in Yobe, Kano and Borno states. At least 80 people were killed after attacks the day before killing 50 in neighbouring Bauchi state. These four states are among 12 that-- to the consternation of Christian minorities-- began a stricter enforcement of shariah law in 2000. The rebels oppose Western education and demand adoption of sharia law in all of Nigeria. (See prior related posting.)

Monday, July 27, 2009

India's Defense Minister OK's Beards In Military For Muslim Men

In India, Defence Minister A. K. Antony has instructed all branches of the armed forces that they should permit Muslim recruits and officers to wear beards. Indian Muslim reported yesterday that the government's policy change came as a lawsuit against the Indian Air Force challenging its grooming policy was pending before India's Supreme Court.

Texas County May Contract With Chaplain Service For Employees

The Plano, Texas Star last Friday reported that Collin County commissioners voted last week to "try out" the services of Marketplace Chaplains, a Christian organization that offers brief, regular visits by Chaplains during which time they can build a relationship with employees. The service also provides a 24-hour service to employees dealing with an emergency or family crisis. If the county decides to contract with the chaplain service, it will cost it $160,000. Marketplace Chaplains apparently usually contracts with private businesses to provide counseling and support for their employees and their families who wish to use the service. It says the service decreases absenteeism and improves attitudes and morale. Marketplace Chaplains website says: "As a 501 (c) 3 non–profit Christian organization, Marketplace Chaplains USA maintains relationships with clergy of other faith groups. In the rare instance a request is made by an employee or family member, or recommended by a chaplain, someone from the employee's or family member's faith is called upon to meet the person’s specific need."

Sunday, July 26, 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.

Saturday, July 25, 2009

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.

Friday, July 24, 2009

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.

Thursday, July 23, 2009

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.

Wednesday, July 22, 2009

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.