Catholic Archbishop Speaks Out On Government's Relationship With Catholics

CNA reports on an interesting speech delivered by Catholic Archbishop of Denver Charles J. Chaput yesterday at North Carolina's Belmont Abbey College where he was given the Envoy of the Year Award. He praised Belmont Abbey for its stand against the EEOC which has charged the college with gender discrimination for dropping coverage for contraceptive drugs from its health plan for employees. (See prior posting.) Contrasting anti-Catholic bigotry in early America with today, Chaput said:

Caesar wears a different suit. He has great media handlers. He bullies religion while he claims to respect it. He talks piously about the law and equality and tolerance and fairness. But he still confuses himself with God –and he still violates the rights of Catholic believers and institutions by intruding himself where he has no right to be....

It's one of the great ironies of the moment that tiny Belmont Abbey would have the courage to challenge Caesar over its right to be faithfully Catholic in its policies, while so many other American Catholics seem eager to give Caesar honors.

Earlier this week, Chaput published an article in the Italian newspaper Il Foglio criticizing Notre Dame University's award of an honorary degree to President Obama last Spring.

Hate Crimes Bill Included In Defense Authorization Conference Report Passed By House

It appears that the long battle to expand federal hate crimes legislation is about to succeed. (See prior posting.) The Conference Report on HR 2647, the 2010 Department of Defense Authorization Bill, included in the bill the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. Yesterday the House of Representatives approved the Conference Report by a vote of 281-146. The Conference Report now goes to the Senate for its approval. President Obama has promised to sign the legislation.

According to a release from the Senate Armed Services Committee, the hate crime provisions will (1) prohibit hate crimes based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; (2) provide support for the criminal investigation and prosecution of hate crimes by State, local, and tribal law enforcement officials; and (3) prohibit attacks on United States service members based on their military service.

Yesterday's Los Angeles Times reports that 131 of the 146 "No" votes were from Republicans who object to the hate crimes legislation, despite language designed to protect religious speech and association. Conservative Christians have argued that the bill could be used to prosecute pastors for anti-gay sermons that are later connected to violence against gays. Here are the provisions in the Conference Report intended to deal with this issue (at pp. 1366-69):

SEC. 4710. RULE OF CONSTRUCTION.
For purposes of construing this division and the amendments made by this division the following shall apply:

(1) IN GENERAL.—Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

(2) VIOLENT ACTS.—This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.

(3) CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to—
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.

(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

SEC. 4711. GUIDELINES FOR HATE-CRIMES OFFENSES.
Section 249(a) of title 18, United States Code, as added by section 4707 of this Act, is amended by adding at the end the following:

"(4) GUIDELINES.—All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person."

ADL issued a press release welcoming the House action and said the next step is training for law enforcement personnel and prosecutors about the new law. The Family Research Council issued a statement criticizing the legislation, calling it a "thought-crimes bill" and charging that it gives special rights based solely on sexual behavior.

Human Rights Lawyer In Egypt Sues To Stop "Hesba" Proponent

Egyptian human rights lawyer Naguib Gobraiel filed a lawsuit in Cairo on Wednesday against fellow-lawyer Nabih el Wahsh charging him with "ghawi shohra" or "seeking fame." The charges stem from el Wahsh's long history of bringing "Hesba" cases against intellectuals, artists, religious leaders and government ministers charging them with immorality or blasphemy. The doctrine of Hesbah allows any Mulim to take legal action against anyone seen as harming Islam. In Egypt, the doctrine also extends to actions seen as immoral or injurious to the country. UAE's The National yesterday reported that el Wahsh has filed nearly 1000 Hesbah cases in the past ten years. For example he recently filed suit attempting to get seven TV series removed from Egyptian and Arab stations during Ramadan for violating Islamic law and presenting immoral scenes. Most of el Wahsh's cases are dismissed by the prosecutor general before they get to court. However earlier this year he won a case stripping Egyptian nationality from anyone married to an Israeli. If Gobraiel's lawsuit is successful, it could lead to a fine being imposed on el Wahsh.

Recent Prisoner Free Exercise Cases

In McAlister v. Livingston, (5th Cir., Oct. 6, 2009), the U.S. 5th Circuit Court of Appeals remanded for trial a Wiccan inmate's claims under the 1st Amendment and RLUIPA, alleging that prison officials wrongly denied his requests for devotional items for in-cell and group use, and that Wiccan inmates are not allowed to meet to celebrate the eight Wiccan holy days or for group worship without the supervision of an approved volunteer.

In Brown v. Lindsay, 2009 U.S. Dist. LEXIS 91126 (MD PA, Oct. 1, 2009), a Pennsylvania federal district court dismissed a challenge by a Muslim inmate to the temporary removal from the sheves of the prison chapel's library for security reasons of certain books. Plaintiff had since been transferred to a different facility and the Bureau of Prisons has rejected the Standardized Chapel Library Project policy responsible for the removal of the books. (See prior related posting.)

In Hamilton v. Smith, 2009 U.S. Dist. LEXIS 91039 (ND NY, Sept. 30, 2009), a New York federal district court rejected an inmate's complaint that his free exercise rights and his rights under RLUIPA were violated when the prison refused to provide him meals that met both his religious tenets and his medical needs for a low-sodium, low-cholesterol diet. The magistrate's recommendation is at 2009 U.S. Dist. LEXIS 91032 (Jan. 13, 2009).

In Fetzer v. McDonough, 2009 U.S. Dist. LEXIS 91063 (ND FL, Sept. 29, 2009), a Florida federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91074 (June 26, 2009)) and rejected an inmate's free exercise, equal protection and due process challenges to the Florida Department of Corrections discontinuance of its Jewish Dietary Accommodation Program.

In Bey v. Caruso, 2009 U.S. Dist. LEXIS 90314 (ED MI, Sept. 30, 2009), a Michigan federal district court rejected a magistrate's evidentiary ruling (2009 U.S. Dist. LEXIS 90323 (Feb. 27, 2009)) and held that material questions of fact remained for trial in a suit by an inmate, a member of the Moorish Science Temple of America, who wanted prison officials to use his religious name in prison documents.

In Smith v. Stoley, 2009 U.S. Dist. LEXIS 91142 (WD MI, Sept. 30, 2009), a Michigan federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91456 (July 21, 2009)) and dismissed claims by a Wiccan prisoner who wanted to possess a number of items for religious rituals, such as a knife, a crystal ball, candles, incense and a senser, and wanted to cover his cell window in order to perform certain Wiccan rituals naked.

In Crump v. McBurney, 2009 U.S. Dist. LEXIS 90693 (WD MI, Sept. 30, 2009) a Michigan federal district court adopted the recommendations of a magistrate judge (2009 U.S. Dist. LEXIS 91403 (June 11, 2009)) and rejected a RLUIPA claim by a prisoner who was wrongly removed from the prison's kosher food program for 39 days. Under prison rules, inmates could be suspended from the program if they purchased non-kosher food from the prison commissary. A guard had claimed that cough drops ordered by the inmate violated this restriction, but was later overruled when the warden ruled that these were personal care items, not food.

Philadelphia Couple Charged In Faith Healing Death of 2-Year Old Son

In Philadelphia (PA), Herbert and Catherine Schaible have been charged with involuntary manslaughter, conspiracy to commit involuntary manslaughter and endangering the welfare of a child in the death of their 2-year old son from bacterial pneumonia. According to the Philadelphia Inquirer and the Philadelphia Daily News, at a preliminary hearing yesterday a municipal court judge bound the parents over for trial. The parents, members of the First Century Gospel Church, do not believe in seeking medical care. Instead they prayed over their sick son for ten days, and when he did not improve they called their pastor to also pray with them. Herbert Schaible, who has only a 9th grade education, is a teacher at the Church's school. His wife also dropped out of school after the 9th grade. The couple's attorneys argued that the Schaibles merely thought that their son had a bad cold or the flu.

Wisconsin Parents Sentenced In Daughter's Faith-Healing Death

Yesterday's New York Times reports that Dale and Leilani Neumann, who were convicted this summer of second-degree reckless homicide in the 2008 death of their 11-year old daughter Kara, were sentenced by a Wisconsin judge on Tuesday. The parents were ordered to spend 30 days in jail each year for the next six years and were placed on 10 years' probation. Prosecutors had asked for a 3-year sentence. The Neumanns failed to obtain medical treatment for their daughter's diabetes. Instead they and other relatives and friends prayed for Kara as her health deteriorated. She finally went into a coma. (See prior postings 1, 2. )

Court Says Diocesan Assets Belong To ECUSA Loyalists

In Calvary Episcopal Church v. Duncan, (PA Com. Pl, Oct. 6, 2009), a Pennsylvania trial court ruled that under a 2005 settlement agreement, some $15 million in church endowments, bank accounts, and other resources are property of the Pittsburgh Episcopal diocese that remains affiliated with the Episcopal Church USA. The court said that the language of the settlement is "clear and unambiguous" that these assets do not belong to the congregations that broke away and affiliated with the Anglican Province of the Southern Cone. The ruling did not deal with questions of properties titled in the names of individual parishes. In a statement after the ruling was handed down, leaders of the diocese that remained with ECUSA said: "We must now focus on reconciliation and welcoming back anyone who wants to return to our Episcopal Diocese." In a pastoral letter , Archbishop Robert Duncan, leader of the break-away group, emphasized that the decision only affected diocesan assets, and not parish properties or funds. He said that the court's decision violates assurances that the issue of which group is the "true diocese" was not part of this case. Yesterday's Pittsburgh Post-Gazette reports on the decision.

Court Rejects RLUIPA and Other Challenges To Refusal To Rezone

In Elijah Group v. City of Leon Valley, 2009 U.S. Dist. LEXIS 92249 (WD TX, Oct. 2, 2009), a Texas federal magistrate judge recommended dismissing challenges under various provisions of RLUIPA, the 1st and 14th Amendments and the Texas Religious Freedom Restoration Act to a zoning ordinance of the City of Leon Valley, Texas. A church building that had been operating under a special use permit was foreclosed on by a bank and the building was leased by the bank to a different church which originally had wanted to buy the property. The sale was not finalized because the city had changed its zoning law to totally preclude church assemblies as a permitted use in areas zoned for "retail" use, and had refused the bank's request to rezone the area. The magistrate concluded that nothing requires the city to change its zoning Master Plan and rezone property just because the applicant is a church. He said: "Nothing in the RLUIPA or case law suggests a church is unreasonably limited just because it is excluded from a zoning district it prefers." Otherwise a zoning law would be required to permit churches everywhere.

Court Rejects Free Exercise Challenge To Financial Aid Form

In Runge v. Barton, 2009 U.S. Dist. LEXIS 92139 (D SC, Oct. 2, 2009), [Magistrate's Report at 2009 U.S. Dist. LEXIS 92138 (Aug. 28 2009)], a South Carolina federal district court rejected a somewhat rambling free exercise claim by plaintiff, father of three college students, who objected to the The College of Charleston's financial aid application process. In order to apply for financial aid, applicants must submit the federal FAFSA form to the U.S. Department of Education. Students under 24 are classified as dependents for purposes of this form, and to determine parents' financial ability they must submit copies of income tax returns. Plaintiff objected to being "forced to participate in a financial aid application" for his adult children "that supports a secular government education program that is religiously repugnant" to him.

Supreme Court Hears Arguments In War Memorial Cross Case [Revised]

The Washington Post and the Los Angeles Times report on today's oral arguments before the U.S. Supreme Court in Salazar v. Buono. At issue is the question of whether Congress' transfer to the VFW of the Sunrise Rock Cross, located in the Mojave Preserve war memorial in California, eliminated Establishment Clause problems that might otherwise exist with government display of a religious symbol. The arguments involved extensive questions from the Justices, and a number of the questions focused on the exact procedural posture of the case. There were also questions about the broader underlying Establishment Clause issue. In addition, the government had raised a standing issue, and there was some questioning about whether it was appropriate to still raise standing at this stage of the litigation. (See prior posting.) The Supreme Court has posted the full transcript of the oral arguments on its website. All the briefs filed in the case are also available online.

Court Rejects Murder Appeal Challenging Prosecutor's Wearing Of Cross

In People v. Morris, (CA 3d Dist. Ct. App., Oct. 5, 2009), a California state appellate court refused to overturn a murder conviction of James Morris (also known as "Ultimate Evil") for his part in killing a 3-year old. On appeal, he complained (among other claims) that during trial the prosecutor wore what the trial court described as "a very thin, metallic cross measuring about an inch by one-half inch on a delicate chain." The court of appeals concluded that this did not compromise Morris' right to a fair trial, nor did it constitute an Establishment Clause violation or inject religion into the trial. Distinguishing this from cases in which attorneys wore clerical collars, the appellate court relied on factual findings by the trial court that the cross was small and barely noticeable, and could be construed equally as a fashion statement or a religious symbol.

New 10 Commandments Case In Ohio Village

A new Ten Commandments lawsuit has been filed-- this time challenging a display outside Lockland, Ohio's town hall. Yesterday's Cincinnati Enquirer reports that the federal lawsuit was filed last month by Christopher Knecht who has also had various other run-ins with both his neighbors and local police. His lawsuit claims that the village is corrupt and ignores basic state laws for "theological principles." Knecht seeks an order requiring this and any future displays of "religious fables and myths" to be removed. He also asks for $500,000 in punitive damages.

Wisconsin Court Refuses To Expand Tax Exemption of Parsonages

Wisconsin's tax statute exempts church property "used for housing for pastors and their ordained assistants, members of religious orders and communities, and ordained teachers." In Wauwatosa Avenue United Methodist Church v. City of Wauwatosa, (WI Ct. App., Oct. 6, 2009), a Wisconsin state appellate court held that this statute does not create an exemption for the residence of a church custodian. The court rejected the church's argument that the statutory list of exemptions should be extended to cover the church-owned residence of anyone who is "integral to the functioning of the church." The State Bar of Wisconsin has posted a comprehensive summary of the case.

Senate Confirms Thomas Perez As Assistant AG For Civil Rights

The U.S. Senate yesterday, by a vote of 72-22, confirmed Thomas E. Perez as Assistant Attorney General for the Civil Rights Division of the Department of Justice. Attorney General Holder issued a statement welcoming Perez back to the Justice Department where he worked from 1988- 1999. (See prior related posting.)

Arizona Hotel Sued For Religious Discrimination In Employment

The Yuma (AZ) Sun reported yesterday that the EEOC has filed suit against the operator of the Oak Tree Inn in Yuma, Arizona charging religious discrimination. The lawsuit claims that employees were threatened with reprisals if they did not engage in a particular prayer ceremony reflecting the beliefs of their supervisor.

Supreme Court Denies Review In Several Religion-Related Cases

The U.S. Supreme Court yesterday denied certiorari in a number of cases involving church-state and religious liberty issues. (Order List.) Among the cases which the court decided not to review were:

Choose Life Illinois, Inc. v. White (Docket No. 08-1283). In the case, the U.S. 7th Circuit Court of Appeals upheld the refusal of the Illinois Secretary of State to issue a special "Choose Life" license plate after proponents obtained the requisite number of signatures requesting it. (See prior posting.)

Frazier v. Smith, (Docket No. 08-1351). In the case, the 11th Circuit upheld the constitutionality of a Florida statute requiring schools to excuse a student from reciting the Pledge of Allegiance only upon written request of the student's parent, regardless of the student's desires. (See prior posting.)

Rector of St. James Parish v. Episcopal Diocese of Los Angeles (Docket No. 08-1579). In the case, the California Supreme Court held that building and property of the St. James Parish in Newport Beach belongs to the Episcopal Church, not the parish, once the parish broke away and affiliated with the more conservative Anglican Church of Uganda. (See prior posting.)

Arkansas Annual Conference of the African Methodist Episcopal Church, Inc., v. New Direction Praise and Worship Center, Inc. (Docket No. 08-1352). The Arkansas Supreme Court's January 2009 opinion in the case applied neutral principles of law to find that church property belonged to a break-away congregation.

O'Bryan v. Holy See (Docket No. 08-1384). The 6th Circuit decision below dealt with when the Foreign Sovereign Immunities Act allowed civil suits against the Vatican in U.S. courts. (See prior posting.)

Sklar v. Commissioner of Internal Revenue (08-9180). In the case, U.S. 9th rejected a claim by parents that they should be able to deduct for income tax purposes a portion of the tuition and fees paid to their children's Orthodox Jewish day schools. (See prior posting.)

Katz v. Mabus (Docket No. 08-1434). The 3rd Circuit's opinion below rejected religious discrimination claims by plaintiff, a civilian employee, against the U.S. Navy.

St. John's United Church of Christ v. FAA (Docket No. 08-1447). In the opinion below, the D.C Circuit denied standing to various religious communities to bring a RFRA challenge to the relocation of a cemetery that was necessary to complete expansion of Chicago's O'Hare airport.

Also, in Roman Catholic Diocesan Corp. v. New York Times (Docket No. 09-246), the full court denied a stay of an order issued in May by the Connecticut Supreme Court requiring release of some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. (See prior posting.)

[Thanks to SCOTUS Blog and Josh Gerstein at Politico for some of the leads.]

TSA Says Sukkot Items OK On Planes

The Jewish holiday of Sukkot began last Friday night. The Transportation Security Administration notified its airport screeners last week that travellers are allowed to carry onto planes the traditional lulav and etrog that are used as part of the observance of the holiday. The TSA notice read in part:

Observant Jewish travelers may carry four plants – a palm branch, myrtle twigs, willow twigs, and a citron – in airports and through security checkpoints. These plants are religious articles and may be carried either separately or as a bundle. Jewish travelers may be observed in prayer, shaking the bundle of plants in six directions. The workforce should note that TSA’s screening procedures do not prohibit the carrying of such agricultural items through the airport or security checkpoints, or on airplanes.

Top Egyptian Cleric Will Ban Niqab At al-Azhar

Egypt's top cleric, Mohammed Sayyed Tantawi, plans to ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. AP reported yesterday that the decision is part of the government's security campaign to restrict increasingly open manifestations of ultraconservative Islam in Egypt. al-Azhar's scholars agree that the niqab is not a religious requirement. Some critics say, however, that it is unlikely that a ban would be enforced.

Tennessee ACLU Issues New Guide On Religion In Schools

ACLU of Tennessee last week sent 137 public school superintendents across the state its new guide: Know Your Rights: Religion in Public Schools – A Guide for Administrators and Teachers. The ACLU's press release also linked to the letter that was part of the mailing to school districts. Packed into the new 4-page guide is the ACLU's interpretition of the state of the law relating to school prayer (in class, at graduation, at sporting events, board meetings and elsewhere), to the pledge of alliegance, distribtuion of Gideon Bibles, equal access rules, holiday celebrations and "See You At the Pole" events.

Saudi King Removes Cleric Who Challenged New University's Liberalized Policies

Last month, Saudi Arabia's King Abdullah University for Science and Technology (KAUST) was dedicated. (See prior posting.) Long the dream of King Abdullah, KAUST is a co-educational graduate university, freed somewhat from the religious influences that dominate in other Saudi universities. Nipping a challenge to the University in the bud, Sunday King Abdullah issued a royal decree removing Sheikh Saad al Shethri from the Council of Senior Islamic Scholars, according to UAE's The National. Shethri, a young university professor who was just appointed to the Council this year, drew criticism from liberal media after his recent appearance on al Majad Islamic TV. In that appearance he questioned the appropriateness of co-education at KAUST and called for a Sharia committee to monitor the KAUST curriculum for its compatibility Islamic law.

UN Human Rights Council Passes Compromise Resolution On Freedom of Expression

CNS News reports that on Friday the United Nations Human Rights Council unanimously adopted a compromise resolution on freedom of opinion and expression that had been proposed by the United States and Egypt. (Full text of Oct. 12 version accessible from this page) [updated]. The resolution omits the controversial term "defamation of religion," which the Organization of the Islamic Conference had pushed through in resolutions adopted in previous years. (See prior posting.) Instead it included a paragraph that each side has chosen to interpret differently. In the relevant language in the resolution [updated], the Council:

Reaffirms ... the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including ... the intrinsically linked rights to freedom of thought, conscience and religion....

Also expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their obligations under international human rights law, to address and combat such incidents

CNS News reports on the varying interpretations of and reactions to the compromise language:

Speaking on behalf of the European Union, French representative Jean-Baptiste Mattei said the language about stereotyping referred to the stereotyping of individuals, not religions, ideologies or abstract values. Human rights laws do not and should not protect belief systems, he said, stressing that the E.U. continued to reject the concept of defamation of religion.

But Pakistan’s Zamir Akram, speaking for the OIC, used the terms "negative stereotyping" and "defamation of religions" interchangeably, and said the phenomenon affected not only individuals but also religions and belief systems.

Article 19, a free speech organization, called the vote on the resolution a breakthrough, given the tensions that have marked discussions on the issue at the U.N.’s human rights bodies. Executive director Agnes Callamard noted in particular the omission of the term "defamation of religion," although she said "religious stereotyping" was a vague concept that suggested that religions and religious ideas and symbols, rather than religious adherents, may be protected by international human rights law.

The Becket Fund for Religious Liberty, a leading opponent of the religious "defamation" push, said the resolution passed Friday was a step in the right direction but still contained problematic language. "This resolution will be seen as a victory if it is the death knell for the concept of 'defamation of religions,'" said advocacy officer L. Bennett Graham. "But if it continues to provide international cover for overbroad anti-blasphemy laws around the world, it will only exacerbate the problem."

Some however had a less sanguine view of the compromise language, such as this article from The Weekly Standard, and this somewhat less strident but still negative reaction from Eugene Volokh.

Christian Conservatives Opposing Feldblum's Nomination To EEOC

An article today by Bill Berkowitz at BuzzFlash says that Christian conservatives are mounting a campaign to oppose confirmation of Chai R. Feldblum who has been nominated to the EEOC by President Obama. (See prior posting.) Feldblum is the first openly gay or lesbian person to be nominated for the EEOC. An article on the Traditional Values Coalition website opposing Feldblum is titled: "If You Hate America You Have a Lawyer — Chai Feldblum." Feldblum, a professor at Georgetown Law School, founded the Moral Values Project, dedicated to making a moral case for sexual and gender equity.

Saudi Religious Police Will Add Human Rights Unit

ANI reports today that Saudi Arabia's religious police, the Commission for the Promotion of Virtue and the Prevention of Vice, is setting up a new human rights unit to deal with human rights "in accord with just Islamic principles and international rights treaties." This is part of a broader restructuring of the Commission. However human rights activists call the move a hypocritical attempt to deal with the Commission's tarnished image and increased scrutiny of it by human rights organizations.

Military Critic Sues Former Chaplain Alleging Threats

Today's Dallas Morning News reports on a lawsuit filed by Mikey Weinstein, founder of the Military Religious Freedom Foundation, against former Navy chaplain Gordon Klingenschmitt, Jim Ammerman and Ammerman's Chaplaincy of Full Gospel Churches. Weinstein says that they are conspiring to encourage violence against him. The complaint (full text) in Weinstein v. Ammerman, (Dallas Co. TX Dist. Ct., filed 9/23/2009), alleges that Klingenschmitt, on behalf of Ammerman and CFGC, is using "imprecatory prayers" -- Biblical code-- to urge his followers to commit acts of violence against Weinstein. It claims that CFGC "is a front for anti-government extremists" who fear the U.S. is planning to turn its sovereignty over to the United Nations. The lawsuit seeks damages and an injunction, alleging violation of Texas Penal Code Sec. 22.07 that bans terroristic threats, and also alleging intentional infliction of emotional distress.

American Evangelist Turned Away From Britain Over Visa Problem

Britain has changed its rules on the entry of religious workers into the country, and the change last week prevented American evangelist Benny Hinn from entering to conduct his annual three-day "Fire Conference and Miracle Service." Yesterday's Times Online reports that Border Agency officials turned Hinn's private jet away at two different airports because he did not have a "letter of sponsorship" from a church as required by the Tier 5- Temporary Workers- Religious Workers requirements that came into effect last November. Thousands had come to London for Hinn's mission at the ExCeL exhibition centre, and were surprised when he did not appear. According to a posting on the Benny Hinn Ministry website, Hinn did end up addressing the conference via satellite link. It blames the problem on British lawyers who did not properly interpret Britain's new visa requirements. Plans are under way for Hinn to obtain a visa and return to Britain. [Thanks to Scott Mange for the lead.]

Recent Articles, Book and Video of Interest

From SSRN:

• C. Scott Pryor, Principled Pluralism and Contract Remedies, (McGeorge Law Review, Vol. 40, No. 3, 2009).
• Lyman P. Q. Johnson, Counter-Narrative in Corporate Law: Saints and Sinners, Apostles and Epistles, (Michigan State Law Review, Forthcoming).
• Dana Brakman Reiser, Charity Law’s Essentials, (Brooklyn Law School, Legal Studies Paper No. 167, Sept. 28, 2009).

From SmartCILP and elsewhere:

• Nehaluddin Ahmad, The Modern Concept of Secularism and Islamic Jurisprudence: A Comparative Analysis, 15 Annual Survey Of International & Comparative Law 75-105 (2009).
• Paul Horwitz, Demographics and Distrust: the Eleventh Circuit on Graduation Prayer in Adler v. Duval County, 63 University of Miami Law Review 835-892 (2009).
• Symposium: Constitutionalism and Secularism in an Age of Religious Revival: The Challenge of Global and Local Fundamentalisms, 30 Cardozo Law Review 2331- 2896 (June 2009).
  

Recent Book:

• Steven H. Shiffrin, The Religious Left and Church-State Relations, (Princeton Univ. Press, 2009).

New Video:

• Citizens United Productions, Rediscovering God in America II: Our Heritage, (2009), reviewed in CNS News.

Native Hawaiian Cultural Practitioners Challenge Land Management Plan

In Hawaii, a group of Native Hawaiian cultural practitioners, conservationists and others have filed suit in state court seeking to force the state's Board of Land and Natural Resources to grant them a hearing to challenge the Mauna Kea Comprehensive Management Plan that was adopted in April. Big Island Video News reported Friday that the lawsuit claims Hawaiian law has recognized the role of Native Hawaiians in protecting natural and cultural resources. Plaintiffs argue that Mauna Kea, an inactive volcano, is a religious temple, human burial ground, and a site for the study of traditional Hawaiian techniques in navigation and astronomy.

Missouri Creates New Faith-Based Partnership For Disaster Relief

Missouri Governor Jay Nixon last month signed Executive Order 09-25 setting up the Governor’s Faith-Based and Community Service Partnership for Disaster Recovery. Today's St. Louis Post-Dispatch carries a long report on Missouri's efforts to create a model of cooperation between state agencies and religious organizations to create an effective disaster response and recovery system. The state's new Partnership is made up of 16 state agencies, two federal agencies and 16 religious and charitable organizations.

Bald Eagle Case Transferred To Tribal Court

There has been a new development in the long-running federal prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance. The case has already been up to the 10th Circuit once on an unsuccessful challenge to the Bald and Golden Eagle Protection Act. (See prior posting.) A Wyoming federal district court judge has now agreed to let the matter be handled by a tribal court. AP reports today that the Wyoming federal district court that had scheduled a trial to begin Monday in the case instead has issued an order vacating the trial and specifying that the matter will be transferred to a tribal court. The judge however left open the possibility that he could still order a trial next month if the tribal court does not act.

Brooklyn Judge Criticizes Orthodox Jewish Community's Views On Child Abusers

In Brooklyn, New York on Tuesday, state trial court judge Guston Reichbach delivered a harsh rebuke to the borough's Orthodox Jewish community while sentencing Yona Weinberg, a 31-year old social worker and bar mitzvah tutor, for sexually molesting two boys. According to today's New York Jewish Week, the judge was distressed that in the 90 letters in support of Weinberg received prior to sentencing, no one expressed concern or sympathy for the victims. Judge Reichbach complained about "a communal attitude that seems to impose greater opprobrium on the victims than the perpetrator," and said that Jewish religious courts are inappropriate and incapable of dealing with criminal matters. The comments come just as the Orthodox Jewish community is beginning to face the problem of child sexual abuse.

Recent Prisoner Free Exercise Cases

In Jova v. Smith, (2nd Cir., Sept. 28, 2009), the U.S. 2nd Circuit Court of Appeals held that, under RLUIPA, prison authorities had demonstrated a compelling interest in a policy that permits inmates who lack a prison-affiliated chaplain to seek an outside sponsor, but where one is not available to allow an inmate to serve as facilitator of congregational worship only if the religion is known outside the institution. One of the two plaintiffs was the founder of Tulukeesh. The court also upheld against a RLUIPA challenge refusals to allow plaintiff to spar and receive martial arts training. However the court remanded for further consideration whether there was a less restrictive way of accommodating plaintiff’s complex religious dietary needs, such an entirely vegetarian diet. New York Law Journal reported on the decision last week. [Thanks to Steven H. Sholk for this lead.] In a related summary order issued on the same day, the court rejected plaintiff’s free exercise challenge and various other related claims. (See prior related posting.)

In Watson v. Wakefield, 2009 U.S. Dist. LEXIS 88395 (SD TX, Sept. 25, 2009), a Texas federal district court allowed two Muslim inmates to move ahead with his claim under RLUIPA that his rights were violated when he was barred for six months from attending Muslim services because during a scheduled prayer service he called for the resignation of his unit’s inmate Islamic coordinator. The court concluded that defendants had not shown for purposes of summary judgment that exclusion was the least restrictive means of promoting prison safety and security after a single incident of disruption. The court did however dismiss plaintiff’s First Amendment free exercise claim.

Vega v. Lantz, 2009 U.S. Dist. LEXIS 88550 (D CT, Sept. 25, 2009), involved free exercise and equal protection complaints, as well as a claim under RLUIPA, alleging a lengthy series of restrictions on a Muslim inmate’s right to practice his religion. A Connecticut federal magistrate judge rejected plaintiff’s complaint that he was denied halal meat and 5-times per day congregate prayer, as well as complaints about several other alleged infringements. The court however permitted plaintiff to move ahead with claims that Friday Jumah services are frequently cancelled, that the Qu’ran was mishandled, that his request to be circumcised for religious reasons was refused, that he was not allowed to purchase a toothstick, and that prayer oils sold in the commissary did not comply with Islamic requirements. The court also held that damages are not available under RLUIPA in claims against officials in their individual capacities.

In Decker v. Hogan, 2009 U.S. Dist. LEXIS 89048 (ND NY, Sept. 28, 2009), a New York federal district court permitted an atheist civil detainee who was placed in a sexual offender treatment program to move ahead with his First Amendment claim that portions of the program are based on Zen Buddhism and Christianity. The court, however refused to issue a preliminary injunction because plaintiff had not shown a substantial likelihood of success on the merits.

In Lewis v. Foster, 2009 U.S. Dist. LEXIS 88652 (D DE, Sept. 25, 2009), a Delaware federal district court rejected a claim by a former inmate that while he was incarcerated he was denied access to a razor to shave his head. He claimed that his Hebrew Israelite religion required him to shave his head for an indeterminate time after he came in contact with a dead body, namely his stillborn child.

In Lee v. Gurney, 2009 U.S. Dist. LEXIS 88883 (ED VA, Sept. 25, 2009), a Virginia federal district court rejected a Sunni Muslim inmate’s First Amendment and Equal Protection contentions, but permitted him to move ahead with his claim under RLUIPA complaining about a ban on group prayer in the prison recreation yard. The court concluded that authorities had not shown for summary judgment purposes that they used the least restrictive means to further a compelling interest in imposing the ban.

In Ramsey v. Goord, 2009 U.S. Dist. LEXIS 88859 (WD NY, Aug. 19, 2009), a New York federal magistrate judge refused to grant defendants’ motion for summary judgment on a series of related claims by an inmate who declared himself to be Jewish who was temporarily removed from the prison’s kosher food program without any chance to challenge the claimed reasons for his removal. He was charged with giving some of his kosher food to another inmate when it appears that this was done by an inmate porter of the food trays rather than plaintiff. Plaintiff was also allowed to move ahead with his claim that his removal from the program was in retaliation for his providing a statement helping another Jewish inmate in his charges against a prison staff member.

In Ellis v. United States, 2009 U.S. Dist. LEXIS 89392 (WD PA, Sept. 28, 2009), a Pennsylvania federal district court dismissed a Muslim federal inmate’s negligence claim stemming from the omission of his name from the call-out sheet for the 2006 Eid celebration as well as his free exercise claim based on the denial of Halal meat for the 2006 Eid celebration. The court also adopted a number of recommendations made in the case by a federal magistrate judge (2009 U.S. Dist. LEXIS 90035 (June 2, 2009)) including permitting plaintiff to move ahead with a RFRA claim that his name was omitted for 3 months from the call-out list for Jumu’ah services, an equal protection claim regarding denial of Halal meat for the Eid service, and a retaliation claim. The court agreed to deny a RFRA claim relating to plaintiff’s ability to purchase prayer oil and omission of Halal meat from the Eid service.

In Katz v. McGrew, 2009 U.S. Dist. LEXIS 89599 (D HI, Sept. 23, 2009), a Hawaii federal district court dismissed without prejudice a claim by a Jewish prisoner seeking a transfer from Hawaii to a mainland federal prison where he could eat and pray in a Sukkah during the Jewish holiday of Sukkot. The court said that case should have been brought as a civil rights claim, and not as a habeas corpus claim.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 89831 (ED AK, Sept. 17, 2009), and Arkansas federal magistrate judge recommended dismissing as frivolous a claim by an inmate who said he is a Disciple of Christ that he requires a one-person cell so he can be separate from those who do not obey the doctrines of Jesus.

In Boles v. Neet, 2009 U.S. Dist. LEXIS 91474 (D CO, Sept. 29, 2009), a Colorado federal district court accepted a federal magistrate’s recommendations (2009 U.S. Dist. LEXIS 90019 (March 13, 2009) and dismissed a complaint by an Orthodox Jewish prisoner that he was not permitted to wear his yarmulke and talit katan while being transported off prison premises for cataract surgery. (The case was on remand from the 10th Circuit. See prior posting.)

Court Says "Ministeral Exception" Does Not Apply To Suits Under Trafficking Victims Protection Act

In an important decision of first impression, a New York federal magistrate judge has concluded that the "ministerial exception" does not apply to suits under the federal Trafficking Victims Protection Act of 2000. Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044 (ED NY, Aug. 21, 2009), involves a Hindu priest who came to the United States under a religious workers visa to work for the Vishva Seva Ashram of New York. Plaintiff claims that he was tricked into leaving India and once here was subjected him to exploitative work conditions through psychological and emotional abuse-- allegations denied by defendants. Concluding that the First Amendment constraints on civil court jurisdiction over religious disputes should not apply here, the court said:

the standards that govern what constitutes trafficking and forced labor do not depend on the interpretation of religious doctrine; rather they are secular standards that guarantee that employers cannot deprive employees of fundamental human rights. Thus, unlike analyzing suits brought under federal and state employment laws, exploring the ills that the TVPA is meant to combat -- namely, trafficking and forced labor -- does not require courts to unduly interfere with the internal affairs of religious organizations or get involved in the selection or retention of ministers. Furthermore, a suit under the TVPA is not analogous to a suit under federal and state employment laws, because it is not brought in response to an adverse employment action...

Alabama High Court Says Morality Can Still Justify Commercial Regulation

The New York Times this morning editorializes on a decision handed down three weeks ago by the Alabama Supreme Court, 1568 Montgomery Highway, Inc. v. City of Hoover, (AL Sup. Ct., Sept. 11, 2009). In a 7-2 decision, the court upheld against constitutional attack Alabama's ban on the commercial distribution of sex toys, defined as "any device designed or marketed as useful primarily for the stimulation of human genital organs." The court concluded that "public morality" can serve as a legitimate rational basis for regulating non-private commercial activity. Siding with a view taken by the 11th Circuit, the court concluded that the U.S. Supreme Court's decision in Lawrence v. Texas only precludes using public morality as a legitimate governmental interest when a law regulates conduct that is both private and non-commercial. Two dissenters sided with the 5th Circuit, arguing that the U.S. Supreme Court's decision in Lawrence precludes this ban because it prevents individuals from purchasing sex toys for private intimate use.

Court Rejects Protesters' Attempts To Use Chalk Art In Anti-Roe Demonstration

In Mahoney v.District of Columbia, (D DC, Sept. 30, 2009), the D.C. federal district court rejected claims by several Christian anti-abortion protesters that their rights were infringed when they were denied permission to use chalk art as part of an anti-Roe v. Wade demonstration on the pedestrian plaza in front of the White House. The court concluded that the D.C. Code provision prohibiting the defacement of public property is an appropriate content-neutral time, place and manner regulation of speech. As a neutral law of general applicability, it survives plaintiffs' free exercise challenge. It does not impose a substantial burden on their religious exercise under the Religious Freedom Restoration Act because, while plaintiffs have a religious belief that they need to challenge abortion, they "do not allege that it is their sincerely held religious belief that they should express those views to the president through the specific medium of chalk or in the specific location of the 1600 Block promenade." The court also rejected plaintiffs' equal protection claim and their claim that police violated D.C.'s First Amendment Rights and Police Standards Act. (See prior related posting.)

European Court Faults Russia For Refusing To Register 2 Scientolgy Churches

In Kimlya v. Russia, (ECHR, Oct. 1, 2009), the European Court of Human Rights held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it refused to register the Church of Scientology in two Russian cities as a religious organizations under the country's Religions Act. Without registration, churches are essentially unable to function. Authorities refused registration because the churches failed to meet the statutory requirement that either they have existed for at least 15 years in a given Russian territory or are affiliated with a centralized religious organization.

The court noted that member states differed as to whether Scientology should be categorized as a religion. Therefore the court said it would defer to authorities of the country in question as to that issue. Russian officials held that the two churches were religious organizations. It went on to conclude that Russia's "15-year rule" violated the ECHR because it impacts only newly-formed churches that are not part of a strictly hierarchical church structure, and there is no justification for this difference in treatment. A ECHR press release summarized the decision.

Israel Prison Authority Says Prisoners Can Sleep In Sukkah

The Jewish holiday of Sukkot begins tonight. One of its customs is the construction of a Sukkah, a small enclosed area, partially open to the sky, in which observant Jews during the holiday eat their meals and sometimes also sleep at night. Yesterday's Yeshiva World News reports that in Israel, the Israel Prison Authority has for the first time given permission for observant prisoners to sleep in a sukkah in prison. In previous years, they had only been allowed to eat their meals there. The ruling, handed down at the request of the human rights group B'tzedek, applies to the wing housing religiously observant prisoner at the Massiyahu Prison. Among the prisoners housed there is Shlomo Benizri, a former member of the Knesset from the religious Shas Party, who is serving a four year sentence for accepting bribes.

Washington's Red Mass Is Sunday As Supreme Court Opens Its Term

This Sunday, as the Supreme Court's term is about to open, Washington's 56th annual Red Mass will be held at the Cathedral of St. Matthew the Apostle. Several justices traditionally attend, along with congressional leaders, diplomats, cabinet secretaries, and sometimes the President. CNN reports that the Red Mass dates back centuries and brings together government leaders involved in the law. Critics, however, say this improperly gives the Catholic Church a special way to lecture the justices.

Barry Lynn, director of Americans United for Separation of Church and State, says that Washington's Red Mass was begun after several Supreme Court decisions were handed down that troubled the Church. The Mass is sponsored by the John Carroll Society, a lay Catholic group of legal professionals. Jane Roberts, wife of the chief justice, is an officer of the Society. Currently six of the Justices on the Court are Catholic. Justices of other faiths are invited to the Mass as well, and some, like Justice Breyer (who is Jewish), attend. However Justice Ginsburg, has stopped going because of the subject matter of the sermons. Church officials deny using the Mass to lobby the Court. Last year, 5 Justices attended. (See prior posting.)

New Hampshire Federal Court Rejects Challenge To Pledge of Allegiance

In Freedom from Religion Foundation v. Hanover School District, (D NH, Sept. 30, 2009), a New Hampshire federal district court dismissed a constitutional challenge to the recital of the Pledge of Allegiance in school classrooms. Atheist and agnostic parents and students raised Establishment Clause, free exercise, equal protection and due process claims. Perhaps the most interesting part of the court's opinion was its lengthy Establishment Clause analysis. In concluding that the New Hampshire statute mandating recitation of the pledge in classrooms, but making student participation voluntary, passed the Lemon test, the court said in part:

the Pledge of Allegiance is not a religious prayer, nor is it a "nonsectarian prayer" .... and its recitation in schools does not constitute a "religious exercise." The Pledge does not thank God. It does not ask God for a blessing, or for guidance. It does not address God in any way.... Rather, the Pledge, in content and function, is a civic patriotic statement.... Peer or social pressure to participate in a school exercise not of a religious character does not implicate the Establishment Clause, and as a civic or patriotic exercise, the statute is clear in making participation completely voluntary....

The words "under God" undeniably come from the vocabulary of religion, or, at the least, reflect a theistic orientation, but no more so than the benign deism reflected in the national trust in God declared on our currency, or in ceremonial intercessions to "save this Honorable Court" .... It may well be that some, perhaps many, people required to employ U.S. currency, or socially pressured to stand during civic ceremonies, feel offended by what seems to them an imposition of theistic doctrine. But the Constitution prohibits the government from establishing a religion, or coercing one to support or participate in religion, a religious exercise, or prayer. It does not mandate that government refrain from all civic, cultural, and historic references to a God.....

When Congress added the words "under God," to the Pledge in 1954, its actual intent probably had far more to do with politics than religion — more to do with currying favor with the electorate than with an Almighty. (God, if God exists, is probably not so easily fooled.) In the intervening half century since the words were added, rote repetition has, as Justice Brennan observed, removed any significant religious content embodied in the words, if there ever was significant religious (as opposed to political) content embodied in those words. Today, the words remain religious words, but plainly fall comfortably within the category of historic artifacts — reflecting a benign or ceremonial civic deism that presents no threat to the fundamental values protected by the Establishment Clause.

Lodi City Council Changes Policy, But Keeps Prayer

After months of contentious debate, late Wednesday night the Lodi, California City Council voted unanimously to change its policy on invocations, but not to do away with prayer. According to yesterday's Lodi News-Sentinel, under the new policy the invocation will be delivered before the Council meeting is formally called to order. Leaders of all faiths, including ones whose places of worship are outside of the city, will be invited to deliver an uncensored invocation. Persons who are not religious can give a "Call to Civic Responsibility" instead of a prayer. Some 500 people attended the special Council meeting on Wednesday and the mayor had received 1,451 e-mails on the topic. (See prior related posting.)

Parties Settle In Lesbian's Suit Against California Clinic

Last year in North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, (CA Sup. Ct., Aug. 18, 2008), the California Supreme Court held unanimously that a medical clinic's physicians are prohibited by the Unruh Civil Rights Act from discriminating against patients on the basis of sexual orientation. The holding came in a lawsuit by an unmarried lesbian patient. Two Christian doctors at the clinic refused on religious grounds to give her artificial insemination. As the case headed for trial on remand, North County (CA) Times yesterday reported that the parties have now settled the lawsuit for an undisclosed sum of money in a settlement described as mutually agreeable.

NY Jewish Schools Get No Child Left Behind Tutors For First Time

The Jewish Press reported yesterday that for the first time, some 14,000 young students from 50 yeshivas in New York City will be able to access tutoring services paid for by the No Child Left Behind Act's Title I program. The tutors offer students help with reading, writing and arithmetic. Eventually up to 50,000 yeshiva students could participate. Until two weeks ago, union contracts kept New York City teachers from accommodating the yeshivas' longer school day. However new arrangements will now permit yeshivas to use third party vendors for tutoring under the program. [Thanks to Vos Iz Neis for the lead.]

Many Pakistani Mosques and Madressahs Face Shut Off Of Electricity

In Pakistan, the Karachi Electric Supply Company (KESC) notified the Ministry of Religious Affairs earlier this month that over 1,600 mosques and madressahs have not paid their electric bills. They owe the equivalent of $1.49 million (US). According to Pakistan's The News today, KESC will be sending a final one-week notice to delinquent customers and then will be shutting off their power. Numerous notices have previously been sent out, but have been ignored. Most of the religious institutions have their own revenue generating sources, such as shops and markets, that should generate funds to cover the bills. The Ministry of Religious Affairs told KESC that the Ministry is not responsible for the religious institutions.

Texas State Fair Is Not State Actor In Barring Religious Literature Distribution

In Rundus v. City of Dallas, (ND TX, Sept. 16, 2009), a Texas federal district court rejected a claim brought by a Christian evangelist seeking damages for the refusal by the State Fair of Texas to allow him to pass out religious literature on sidewalks inside the fairgrounds. State Fair rules required plaintiff to pay a fee to rent a booth if he wished to hand out literature inside the fairgrounds. His lawsuit claimed the Fair's literature distribution policy violated his 1st Amendment right to express his religious beliefs. The State Fair of Texas is a private non-profit corporation that holds the fair each year at the city-owned Fairgrounds. The court held that the State Fair did not become a state actor by reason of its relationship with the city of Dallas. According to the court, there was "no evidence that the City was involved, much less 'pervasively entwined,' with any aspect of the Literature Distribution Restriction." Therefore plaintiff had failed to show the "state action" necessary for a recovery. And while the city was a state actor, its conduct did not give rise to any liability. (See prior related posting.) The Dallas Observer News Blog reported on the case yesterday.

Israeli Court Says Chinese Pressured University On Falun Gong Exhibit

In Israel, the Tel Aviv District Court ruled yesterday that Tel Aviv University improperly closed down an exhibit of artwork by Falun Gong members last year because of economic and political pressure from the Chinese Embassy. According to Haaretz, the court concluded that the Dean of Students gave into pressure in order to protect campus funding by the Chinese Embassy of scholarships for students who study in China, a campus Confucius Center where students can study Chinese, and conferences on Buddhism and Chinese philosophy. The two-week exhibit opened on March 3, 2008, but was shut down after only four days. The court ordered the university to host the exhibit for another full week during the upcoming semester, and to pay the two plaintiffs-- student organizers of the exhibit-- NIS 45,000 ($12,000 US) in litigation costs.

Court Rejects Tony Alamo's Free Exercise Defense In Suit By Former Followers

A federal district court yesterday rejected a free exercise defense raised by evangelist Tony Alamo in a lawsuit against him by two of his former followers who alleged Alamo withheld food from them for prolonged times, ordered their severe and sometimes public beatings, and verbally abused them during the beatings. In Ondrisek v. Hoffman, (WD AR, Sept. 30, 2009), the court said:

Alamo states that the beatings alleged in the Complaint were merely spankings, which are required by the Bible. Thus, he argues that his alleged conduct in ordering these beatings is protected by the First Amendment’s free exercise clause.... The principle of religious liberty does not give one the liberty to physically attack others.... While an individual’s beliefs that he can beat and falsely imprison Plaintiffs and intentionally inflict emotional distress upon them is protected by the First Amendment, acting on these beliefs is reasonably prohibited by Arkansas law.

The Pine Bluff (AR) Commercial reported on the decision yesterday.

Christian Group Sues Challenging Maine's Interpretation of Its Charitable Licensing Law

In June, the Charitable Solicitations section of Maine's Office of Licensing & Registration imposed a civil penalty of $3000 on the Christian Action Network, finding that it had violated 9 MRS Sec. 5013 by using Governor John Baldacci's name in a letter soliciting contributions without the Governor's consent. (CAN Release.) The solicitation letter complained that some of Maine's public schools were promoting Islam by providing instruction on the Five Pillars of Islam and the Koran and that some schools provide a prayer room for Muslims. It urged recipients of the letter to contact the Governor to complain.

10 MRS Sec. 8003(5) allows the agency to impose a civil penalty of up to $1500 for each violation of law. Apparently the state, as a condition to granting a renewal of CAN's license as a charitable organization, also required it to admit both that the Governor did not give his consent and that CAN's "correspondence contained an inflammatory anti-Muslim message." Yesterday, Liberty Counsel announced that CAN had filed a federal lawsuit against the state of Maine challenging an interpretation of the state statute that prohibits any mention of the Governor in a charitable solicitation without consent. The suit also claims that CAN's free speech was infringed by "censoring" of its anti-Muslim message.

UPDATE: Here is the full text of the complaint in Christian Action Network v. State of Maine, (D ME, filed 9/28/2009). The Bangor Daily News has more coverage and a link to the text of CAN's mailing.

2nd Circuit: Ministerial Exception Bars Rabbi's Suit Against Her Former Temple

In Friedlander v. Port Jewish Center, (2d Cir., Sept. 30, 2009), the 2nd Circuit agreed that a New York federal district court lacked jurisdiction over a breach of contract claim by a rabbi against her former congregation. (See prior posting.) The Court of Appeals found that the "ministerial exception" doctrine applies. That doctrine bars civil courts from interfering with the autonomy of religious institutions over ecclesiastical affairs. The Court said:

review of Freidlander’s claims ... would require scrutiny of whether she should have ... read more extensively from the Torah at certain services, prepared students for their Bar or Bat Mitzvah more adequately, performed certain pastoral services ... or followed the Temple’s funeral service policies. A reviewing court would also be required to assess whether any failures rose to the level of "gross misconduct or willful neglect of duty".... [S]uch review would involve impermissible judicial inquiry into religious matters.

[Thanks to Y.Y. Landa for the lead.]

Prosecutors Seek To Offer Unusual Religious Analysis In Competency Trial

A federal judge in Utah is being asked to permit rather unusual testimony about religious beliefs in the third competency hearing for Brian David Mitchell who has been charged with the 2002 kidnapping in Salt Lake City, Utah of then 14-year old Elizabeth Smart. (Background). According to KSL-TV yesterday, prosecutors want a professor who is an expert in the analysis of scripture, and an investigator of the Ervil LeBaron polygamy cult decades ago, to testify to show that Mitchell's religious writings do not show that he is delusional and mentally ill. Mitchell wrote a book of scripture, "The Book of Immanuel David Isaiah," in which he suggests he has powers greater than God's. Psychiatric experts used that to show he was incompetent to stand trial. Now the prosecution wants to call their witnesses to show that Mitchell's religious writings were coherent when viewed in the proper cultural context. They resemble views in Ervil LeBaron's "Book of the New Covenant" in which he justified over two dozen killings in biblical language.

Amicus Brief Raises Opposition To UN Convention

Two cases before the U.S. Supreme Court this term, Graham v. Florida and Sulivan v. Florida, appear to have become vehicles for those filing amicus briefs to duel over the U.N.'s Convention on the Rights of the Child which conservative Christian groups fear the U.S. Senate may ratify. They claim the Convention would infringe parental rights. (See prior posting.) An amicus brief filed by Amnesty International (joined by 14 other groups) in the two cases involving life sentences without parole imposed on juveniles urges the court to apply the prohibitions of the Convention as a matter of customary international law. Yesterday, according to a press release from Parentalrights.org, 16 members of the U.S. House filed an amicus brief arguing that the Convention is not binding on the United States. Previously some twenty religious groups representing various faith traditions filed an amicus brief arguing that imposing life imprisonment without parole on juvenile offenders contravenes fundamental religious values.

High School Cheerleaders Cannot Carry Religious Banners On Field

Yesterday's Chattanooga (TN) Times Free Press reports on a new variation of the dispute over mixing of religion and high school football. In Fort Oglethorpe, Georgia, since 2003 Fort Oglethorpe High School cheerleaders have displayed religious banners that the football players crash through at the beginning of games. The banners urge fans and players to "commit to the Lord" and "take courage and do it." After a complaint from a local resident, the superintendent [corrected] prohibited the banners, agreeing that the display of Biblical verses on the football field violates the 1st Amendment. This led to a community rally in support of the cheerleaders and strong statements supporting them from Fort Oglethorpe Mayor Ronnie Cobb who said: "If it's offensive to anyone, let them go watch another football game. Nobody's forced to come there and nobody’s forced to read the signs." Meanwhile, an area outside the stadium has been set aside so the signs can be displayed there. Several of the players, upset by the ruling, protested by holding a team prayer after they took the field last week.

An attorney for the Christian Law Association has been advising those upset with the school's ruling on at least two alternative routes, according to Chattanoogan.com. Barbara J. Weller says that while the students may not continue to put Bible verses on the banners they have been making officially for the games, they can make other banners with Bible verses on them, as long as they make the banners at home and bring them to the games on their own, without the school's approval, permission or participation. She also says that the school should not be able to prohibit banners that merely used the words, "Power, Love, Self Discipline" without reference to the Bible verse that includes them.

UPDATE: At an Oct. 13 meeting, the Catoosa County School Board upheld the superintendent's ruling. (ABP).

Supporters of Sectarian Prayer Threaten Billboards Exposing Council Votes

Around the country, the Freedom from Religion Foundation has been challenging city councils that open their meetings with sectarian prayers, and city councils have been forced to consider whether to change their policies. Few of the debates have been as contentious as that in Lodi, California (see prior posting) where a vote will be taken tonight. Yesterday's Lodi News-Sentinel reports that in advance of the vote, Council has received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based "Pray In Jesus Name Project," threatening that if council eliminates invocations or requires them to be non-sectarian, he will purchase billboards on Interstate 5 and Highway 99 for one year listing each council member as "Against Jesus" or "For Jesus." Councilman Bob Johnson described as Klingenschmitt's threat as "blackmail" and "petty thuggery."

Court Rejects Copyright Suit Claiming Infringement In Use of Judas Iscariot Trial

In Porto v. Guirgis, (SDNY, Sept. 28, 2009), a New York federal district court rejected a claim by author Michael Porto (also known as "Guy Michaels") that Guirgis' play "The Last Days of Judas Iscariot" violates the copyrights for Porto's novel "Judas on Appeal." Both works involved a fictional trial of Judas Iscariot in which the issue is whether Judas should be admitted to paradise. The novel has the trial before a fictional World Court of Religion held in the Federal Courthouse in New York's Foley Square, while the play has the trial before a fictional judge in Purgatory. The court said:

The trials depicted in the two works are dramatically different in substance, setting, plot, theme, language, and the overall thrust and feel of the works. Stripped of unprotectible elements—such as the biblical characters and biblical story—the works are not substantially similar.

Courthouse News Service reported on the decision yesterday.

German Court Says School Must Provide Prayer Space For Muslim Student

In the first ruling of its kind in Germany, the Berlin administrative court has ruled that Diesterweg High School in Berlin-Wedding must allow a Muslim student known in the litigation as Yunus M. to pray 10 minutes each day in a separate classroom. Deutsche Welle reported yesterday that freedom of religion guarantees required this accommodation which the court saw as not disturbing school operations. Berlin's Education Senate says it fears that the ruling will lead to the creation of "islands of belief" in the schools, and the chairman of Berlin-Wedding's parents' board said she fears that the ruling will further lessen Muslim students' willingness to integrate into the school.

New York Appellate Court Voids Church Election of New Pastor and Trustees

Trustees of Gallilee Pentecostal Church, Inc. v. Williams, (NY App. Div., Sept. 22, 2009), is a case in which plaintiffs sought a declaration as to who are the legal trustees and members of the Gallilee Pentecostal Church in Poughkeepsie, New York. In 1983 when the Church was formed, its articles named six trustees. Despite provisions in the articles and in the New York Religious Corporations Law calling for annual elections, no election of trustees was ever held. Now only two of the original six trustees are alive. In 2006, at the instigation of Frances J. Williams, some 30 people, allegedly members of the church, were notified of a meeting. 17 showed up and purported to elect Williams as pastor and as a trustee, and also purported to elect Barbara Williams-Mahmood as another trustee.

Plaintiffs, who objected to Williams as pastor, sued challenging the validity of the 2006 meeting. The appellate court agreed with their challenge, finding that defendants failed to prove who were church members entitled to vote at the meeting. The court declared that the two remaining original trustees were the only valid trustees. It went on to enjoin Williams and his supporters from exercising any authority or control over church property. [Thanks to Y.Y. Landa for the lead.]

Court Rejects Interlocutory Appeal In Minnesota Charter School Case

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 88425 (D MN. Sept. 24, 2009), a Minnesota federal district court denied a motion by the sponsor of a controversial charter school to certify an interlocutory appeal of a decision handed down by the court in July. In that decision (see prior posting) the court held that the ACLU had taxpayer standing to bring an Establishment Clause challenge to funding of the school by the state and that plaintiff had sufficiently pleaded the elements of a "state action" by the sponsor, Islamic Relief. The ACLU charges that the charter school promotes Islam. In denying the motion, the court concluded that there is no substantial ground for difference of opinion on the issue of taxpayer standing and that questions as to state action are primarily factual ones that do raise appropriate issues for appeal.

British Jewish Schools Implement New Admissions Criteria Ordered By Court

Today's London Guardian reports on changes in admission policy made by Britain's publicly-funded Jewish schools after a Court of Appeal decision in June held that using the traditional Orthodox Jewish definition of who is Jewish amounts to impermissible racial discrimination instead of a permissible religious criterion. (See prior posting.) The article focuses particularly on the Jewish Free School, which it describes as "vast, in size and in reputation", and which was the school involved in the lawsuit. Now Jewish schools have introduced a "point system" to measure religious practice. Attending synagogue twice a month in addition to festivals earns a child three points. Formal Jewish education is worth one point. Voluntary work in a charity is worth one point. JFS requires three points to be considered a priority applicant. Meanwhile synagogues have seen a spike in attendance as families rush to earn points before the admissions deadline passes. The shift to assessing religious practice is consistent with criteria used by publicly-funded Christian and Muslim schools in Britain. The case is on appeal to Britain's new Supreme Court. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Christian Group Creates "Adopt a Liberal" Initiative

Liberty Counsel (a Christian advocacy group) has begun a "prayer in action" initiative it calls "Adopt a Liberal." It is hoping to change the minds of political leaders it sees as "misguided". The initiative calls on participants to pick one of the eleven liberals on Liberty Counsel's list, or to choose some other liberal leader, and then:

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy....

Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Woman's Caning Sentence Upheld On Appeal In Malaysia

In Malaysia, apparently a controversial sentence of a Muslim woman for drinking alcohol is back on track. Last month Kartika Sari Dewi Shukarno became the first woman to be sentenced under the country's Islamic law to caning for drinking alcohol. When she defiantly asked that her punishment be carried out in public, the sentence was delayed because of Ramadan and to allow for a government appeal after objections from activists. (See prior posting.) Now, according to AP, the chief Shariah judge of Pahang state has ruled that the lower court acted in accordance with law. It is now up to the Pahang Islamic Religious Department to carry out the largely symbolic caning.

Victoria Government Agrees To Broad Religious Exemptions In Discrimination Law

In the Australian state of Victoria, the attorney general has pre-empted a parliamentary committee and has announced an agreement with religious groups (including churches, schools, hospitals and welfare services) that will modify current law but still grant them broad exemptions from anti-discrimination prohibitions. According to The Age yesterday, the compromise permits religious groups to discriminate in employment and the furnishing of services on the basis of sex, sexuality, marital and parental status and gender identity, so long as they demonstrate how the discrimination relates to their religious doctrines. Thus conservative religious schools can refuse to hire single mothers or gays even for non-teaching positions, and Islamic groups can refuse to employ Christians. However religious groups will be barred from discriminating on the basis of race, disability, age, physical features, political beliefs or activity, or breastfeeding.

2010 National Religious Moot Court Announced

George Washington University Law School has announced the 2010 National Religious Freedom Moot Court to be held February 5-6, 2010 in Washington, DC. This year's problem involves free exercise issues in decisions of a local police department to regulate the activities and the dress of a police officer. The competition is open to students from ABA-accredited law schools. Registration extends until November 6, 2009.

Recent Articles and Books of Interest

From SSRN:

• Jeffrey M. Lipshaw, Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief, (Suffolk University Law School Research Paper Series, Sept. 27, 2009).
• Mostapha Benhenda, Liberal Democracy and Political Islam: The Search for Common Ground, Politics, Philosophy & Economics, Forthcoming).
• Umar Aimhanosi Oseni, Towards the Effective Legal Regulation of Waqf in Nigeria: Problems and Prospects, (September 25, 2009).

From SmartCILP:

• Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law & Litigation 119-164 (2009).
• Chad G. Marzen, The Role of Custom in Canon, Jewish, and Islamic Law: Supplemented, Superseded, or Supplanted by Written Law?, 35 Ohio Northern University Law Review 813-827 (2009).
• Anne Orford, Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect, 30 Michigan Journal of International Law 981-1015 (2009).
• Nicholas C. Rigano, Fraudulent Conveyance Law: Destroying Free Exercise Rights at a Church Near You, 17 American Bankruptcy Institute Law Review 165-187 (2009).

Recent Books:

• Anne Marie Lofaso, Religion in the Public Schools: A Road Map for Avoiding Lawsuits and Respecting Parents' Legal Rights (Americans United for Separation of Church & State, 2009), reviewed on AU's website. [Link is to full text of book.]
• David Nash (ed.), Blasphemy in Britain and America 1800-1930, (4 vols.) (Pickering & Chatto Publishers, forthcoming April 2010).

China Issues New Report on Its Ethnic Policy-- Claims Religious Freedom

The Chinese government today issued a White Paper titled China's Ethnic Policy and Common Prosperity and Development of All Ethnic Groups. The Xinhua news agency carries a series of reports on the White Paper. Summarizing the report's findings on religious freedom, Xinhua says:

Freedom of religious belief in China means that every citizen has the freedom to believe or not to believe in any religion," said the white paper issued by the Information office of the State Council.... [A]ll normal religious activities, including those of ethnic minorities, are protected by law.... Venues for religious activities are found all over China, basically satisfying the needs of religious believers.... [T]he Chinese government also helps religious groups build seminaries to train clergymen of ethnic minorities, subsidizes the repairs of some religious venues in minority areas, and gives allowances to poor religious believers of ethnic minorities, according to the white paper.

The White Paper comes in the wake of a letter earlier this month (full text) from two members of the U.S. House of Representatives to Jon Huntsman, the new U.S. ambassador to China, raising concerns about reported plans by China to take new steps against "house churches" leading up to the Oct. 1 marking of the 60th anniversary of Communist Party rule in China. (Christian Post, Sept. 10.)

Illinois Supreme Court Says Limitiations Extension Cannot Be Applied Retroactively

In Doe v. Diocese of Dallas, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court refused to apply retroactively a 2003 amendment to Illinois law extending the statute of limitations in civil actions alleging child sexual abuse. The suit was filed by plaintiff who had been abused by a Catholic priest when he was 14 years old. However under prior law, the statute of limitations had run on his claim before the 2003 amendments took effect. The court concluded that even though the legislature had intended for the amended statute of limitations to apply retroactively: "once a claim is time barred, it cannot be revived through subsequent legislative action without offending the due process protections of our state's constitution." Friday's Belleville (IL) News-Democrat reported on the decision.