Malaysian Court Says Catholic Paper Can Use Term "Allah"

A High Court judge in Malaysia has vindicated the free exercise rights of a Catholic newspaper, The Herald, in an oral opinion handed down today. Bernama and the Wall Street Journal report on the decision that upholds the right of the paper to use the word "Allah" in its Malay-language edition to refer to God. The Home Ministry had banned the paper from using the term, and the paper filed suit to challenge the restriction. (See prior posting.) Judge Datuk Lau Bee Lan held that while Sec. 11(4) of the Malaysian Constitution permits a ban on the use of the term by non-Muslims who are attempting to proselytize Muslims, the Constitutional protections of free expression (Sec. 10) and free exercise of religion (Secs. 11 and 12) permit the paper to use the term in material directed at other Christians. The government had argued that The Herald's online edition can be accessed by Muslims, but the court said that it is enough of a safeguard that the paper is in fact read mainly by Christians. Its main audience is indigenous tribes who converted to Christianity decades ago. The Mandarin, English and Tamil editions do not use the term. The court's decision can be appealed. (See prior related posting.)

UPDATE: The Malay (1/2) reports that the Prime Minister's Department in cooperation with the Home Ministry will appeal the High Court's decision.

UPDATE2: On Jan. 6, the High Court granted the Home Ministry a stay of its order while an appeal is taken to the Court of Appeal. (Outlook India; AP.)

7th Circuit Decides Two RLUIPA Zoning Cases

In World Outreach Conference Center v. City of Chicago, (7th Cir., Dec. 30, 2009), the 7th Circuit issued an opinion in two consolidated appeals involving claims that zoning decisions violated RLUIPA. After concluding that RLUIPA is constitutional, the court initially focused on the City of Chicago's rezoning of a former YMCA building in a way that prevented World Outreach, a religious organization dedicated to providing living facilities to the homeless, from operating it as a community center. The court concluded that World Outreach had not shown religious discrimination, but instead did show that the city discriminated against it in favor of a developer who was a financial supporter of a city alderman. Allegations that the city harassed World Outreach through filing frivolous legal claims states a RLUIPA claim for imposing a substantial burden on the group's free exercise of religion.

In the second case, the court upheld the city of Peoria's classifying as a landmark an apartment building next door to Trinity Evangelical Lutheran Church. This designation prevented the church from tearing down the building in order to build a family life center. The court rejected the Church's RLUIPA claim, holding that the burden on its free exercise is only modest. It can sell the building and use the proceeds to construct a family life center elsewhere in the city. Today's Chicago Tribune reports on the Chicago portion of the opinion.

Remains of 500 Animals From Santeria Rituals Found In Philadelphia House

In Philadelphia on Wednesday, Society for the Prevention of Cruelty to Animals enforcement officers, executing a search warrant, found the remains of more than 500 animals in a home whose most recent occupant was last seen five days ago. CNN reports that officials believe the animals were sacrificed as part of Santeria rituals. Most of the remains were from chickens, but also included dozens of sheep and goats and the remains of two primates-- possibly small monkeys. Also an altar with candles was found in the house. SPCA law enforcement director, George Bengal, said it was not clear if any laws had been violated. It will likely depend on whether the animals were sacrificed inhumanely.

Federal Court Orders New York Kosher Poultry Plant To Shut Down

A New York federal district judge on Tuesday issued a temporary restraining order and preliminary injunction prohibiting further slaughtering at New Square Meats in the village of New Square-- home of the Skver Hasidic sect. The court agreed with the U.S. Attorney's Office that the plant failed to comply with the federal Poultry Products Inspection Act. Various sanitary violations were found at the plant. The poultry slaughterhouse slaughtered more than 355,000 birds in 2008. Almost all of its product is sold through a New Square grocery, Oneg Poultry. Both The Forward and the Lower Hudson Journal-News yesterday report on the court's order, as well as on several other recent controversies involving the Skver sect. (See prior posting.) The Forward quotes Queens College sociology professor Samuel Heilman:

The fundamental question, of course, is what is it about these people that makes it possible for them to, on the one hand, claim to be more religious and pious, and on the other hand, break rules that are non-halachic rules.

He answered that the Skvers, along with other fundamentalist groups, tend to divide the world into "us and them", and feel they can be less concerned in portions of their lives that involve outsiders.

Fired Muslim Workers Denied Unemployment Benefits

In Osman v. JFC, Inc., (MN App., Dec. 29, 2009), the Minnesota Court of Appeals affirmed the denial of unemployment benefits to 22 Somali Muslims who were fired from their jobs at a poultry processing plant after they refused to comply with the company's break policy. They claimed they needed to take breaks at a different time in order to fulfill their religious obligation to perform the Fajr prayer. The court rejected the former employees' argument that they had been promised a floating break. In addition, the court found that their free exercise rights were not infringed by the denial of unemployment compensation because they did not prove that they had a sincere belief that Fajr could only be performed during the first 45 minutes after dawn.

Contributions To Arizona Scholarship Organzations Raise Federal Tax Issues

The Arizona Republic this week explored the question of whether Arizonans are violating federal tax law by taking charitable deductions for certain contributions to private school tuition organizations. Arizona law gives up to a $1000 tax credit per couple ($500 per individual) for contributions to these groups that then grant scholarships to private and parochial school students. Parents cannot make contributions for their own children, but other relatives can. Also a number of parents engage in "swapping", or making contributions for each others children. Tax experts say that it is clearly a violation of federal law to take a federal deduction for a swap contribution, since the gift is being made to benefit oneself. A closer question arises as to contributions accompanied by "recommendations" for scholarship recipients. IRS Publication 526 spells out the rules for which charitable contributions are deductible. Separately, the entire tax credit program is being challenged in court on Establishment Clause grounds. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

H1N1 Precautions Suspended Religious Activities At Montana Jail

In October, in an attempt to prevent the H1N1 flu virus from infecting inmates, Montana's Missoula Detention Center suspended all face-to-face visits with inmates and suspended religious activities, Alcoholics Anonymous meetings and other functions that rely on outside visitors for the duration of the flu season. Last week in Office of the State Public Defender v. McMeekin, (MT Sup. Ct., Dec. 23, 2009), the Montana Supreme Court issued a writ of mandamus ordering the jail revise its policy so that attorneys can have face-to-face visits with pretrial detainee clients. The non-contact visits that had been provided allowed others to overhear attorney-client conversations. Apparently no one challenged the suspension of religious activities. The jail has changed its policy in response to the state Supreme Court order, but has asked visitors who have not been vaccinated for H1N1 to wear masks and use hand sanitizer.

FLDS Church Asks Utah Supreme Court To Stay Proceedings In Trust Case

The FLDS Church on Monday filed a petition with the Utah Supreme Court asking it to stay all proceedings and orders by the lower court in the long-running case seeking to reform the Untied Effort Plan Trust. The Trust holds communal property in Hildale, Utah and Colorado City, Arizona that belonged to FLDS members. Yesterday's Salt Lake Tribune reports that the move came after trial judge Denise Lindberg sealed all filings relating to the future of the Trust and rejected the Church's efforts to intervene in the case. The Church, known for its belief in polygamy, says that the secular management of the trust under court jurisdiction makes it impossible for members to organize their lives in a communal "Holy United Order" as required by their religious teachings. (See prior related posting.)

Holocaust Survivors' Suit Against Vatican Bank Dismissed By 9th Circuit

In Alperin v. Vatican Bank, (9th Cir., Dec. 29, 2009), the U.S. 9th Circuit Court of Appeals dismissed on sovereign immunity grounds a lawsuit by Holocaust survivors against the Vatican Bank. As explained in an earlier 9th Circuit decision in the case:

A group of twenty-four individuals and four organizations ... claim that the Vatican Bank, known by its official title Istituto per le Opere di Religione, the Order of Friars Minor, and the Croatian Liberation Movement ..., profited from the genocidal acts of the Croatian Ustasha political regime ... which was supported throughout World War II by Nazi forces. That profit allegedly passed through the Vatican Bank in the form of proceeds from looted assets and slave labor. The Holocaust Survivors brought suit in federal court claiming conversion, unjust enrichment, restitution, the right to an accounting, and human rights violations and violations of international law arising out of the defendants' alleged involvement with the Ustasha during and following World War II.

This decision, involving the property claims, concluded that neither the international takings exception nor the commercial activities exception removed this suit from protection under the Foreign Sovereign Immunities Act. AP yesterday reported on the decision.

Court OK's Ban of Creche on Roadway Median

In Satawa v. Board of County Road Commissioners of Macomb County, (ED MI, Dec. 28, 2009), a Michigan federal district court refused to issue a temporary injunction against the County Road Commission's decision to ban a private individual's placement of a nativity scene on the median of a busy Warren, Michigan road. A nativity scene had been displayed on the now-60 foot wide median of the 8-lane road during the Christmas season since 1945. Historical farm equipment is also on display on the median. In December 2008, the Freedom from Religion Foundation complained that the nativity scene's presence and its use of electricity provided by the municipality violates the Establishment Clause. After receiving the complaint, the Road Commission decided that the size of the display, and its proximity to the intersection, created a danger to public safety and ordered it removed because no permit had been issued for the display. In 2009, the Road Commission refused to issue a permit on the ground that this would amount to an unconstitutional endorsement of religion.

Plaintiff sued, claiming that the refusal violates his freedom of expression. (See prior posting.) Observing that this is an "extremely close case," the court analyzed a number of "public forum" cases and concluded that a median in the middle of a busy roadway is not a "traditional public forum." It further ruled that the county has a compelling interest in prohibiting placement of the creche in the median because it may impede sight lines at the intersection. Also if this structure is allowed, the county would have to permit all sorts of displays on road medians, creating safety hazards around the county. At the same time, the alternative of displaying the creche a few hundred yards away on Church property would not create any public safety concerns. Finally, the court concluded that banning of temporary structures on busy road medians would not convey a message of endorsement or disapproval of religion. Yesterday's Detroit News reported on the decision.

Egypt Questioning Reporter On Blasphemy Charges

In Egypt, Saudi journalist Nadine al-Bdair and the editor-in-chief of Cairo's Al Masry Al Youm newspaper, Magdy al-Galad, will be summoned by authorities for questioning today. Maktoob News and Gulf News report that General Public Prosecutor Abdul Majeed Mahmoud ordered the prosecutor of south Cairo to investigate blasphemy charges after the newspaper published an article by al-Bdair arguing that if Muslim men are allowed four wives, then an edict should be issued permitting women to have four husbands. A member of Egypt's Parliament has already filed suit over the article, and some clerics say it is provocative and anti-Islamic.

Virginia Warden Retires Amid Charges of Denying Prisoners Religious Services

AP reported yesterday that Barbara Wheeler, warden at Virginia's Fluvanna Correctional Center for Women, is retiring amid allegations that she segregated masculine-looking lesbians, and that she placed excessive restrictions on inmates' access to religious services. State Sen. Frank Ruff says he is concerned about allegations that lists of inmates who may attend religious services were not adequately updated, that inmates were turned away from church services to punish them for infractions such as their hair being too long, and that all lay chaplain visits to the prison were stopped. Fluvanna is Virginia's largest women's prison, housing some 1,200 inmates.

Concerns About Religious Profiling for Security Arise Again After Flight 253

The foiled Christmas Day bombing attempt aboard a Northwest Airlines flight approaching Detroit has raised the spectre of profiling of Muslim travellers for added airport screening. Today's London Express reports that Prof. Anthony Glees, director of Buckingham University's Centre for Security and Intelligence Studies, called that move an "obvious and rational" method to deter Islamic terrorists from striking British targets, while, at the same time, reducing lines at airport security gates for others. A spokesman for the Muslim Council of Britain said: "The actions of one misguided individual should not tarnish the reputation of the majority. We will let terrorists win if bigotry is allowed to flourish."

According to TPM, over the week end, Rep. Peter King (R-NY), Ranking Member of the House Homeland Security Committee, said on Fox News:

I think there are situations like this where we are afraid of being accused of profiling. The fact is while the overwhelming majority of Muslims are outstanding people, on the other hand 100% of the Islamic terrorists are Muslims, and that is our main enemy today. So while we should not be profiling people because of their religion, at the same time we should not be bending over backwards to somehow keep them off a list.

A press release yesterday from the Council on American-Islamic Relations urged authorities to avoid ethnic and religious profiling.

LAPD, Citing Discrimination, Ends Affiliation of Its Youth Program With Scouts

Since 1962, the Los Angeles (CA) Police Department has operated a program to give youth interested in law enforcement an opportunity to assist the LAPD with certain tasks. Now, according to yesterday's Edge, the LAPD is restructuring the program to end its affiliation with the Boy Scouts Learning for Life Explorer Program. Because the Boy Scouts exclude gays, atheists and agnostics, the Police Commission has decided that affiliation with them conflicts with the city's non-discrimination policy. Police Commissioner Robert Salzman says the new program that begins Jan. 1 will be as good or better than the old one.

Interview With Appellee In Famous Flag Salute Case Is Published

First Amendment Center today publised an account of its recent interview with Marie Snodgrass-- the former Marie Barnett. Marie and her sister were the appellees in the famous 1943 U.S. Supreme Court case of West Virginia State Board of Education v. Barnette that invalidated a West Virginia statute requiring students to stand and recite the Pledge of Allegiance. As a Jehovah's Witness, the girls' father believed that saluting the flag was tantamount to worshipping graven images. When the Barnett sisters-- then 8 and 9 years old-- refused to salute the flag, their grade school teacher was understanding, but the principal was not. He sent them home, and eventually the girls were expelled from school. In a 6-3 decision, the Supreme court decided in the girls favor. In a famous passage, Justice Robert Jackson wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The article is part of a series of Interviews with Principals in Supreme Court First Amendment Cases.

Top 10 Church-State, Religious Liberty Developments In 2009

Here are my nominations for the 2009 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. The choices are based on the long-range implications of the developments on legal doctrines and on future of relations between government and religion. Some of this year's top picks continue trends selected last year. (2008 Top 10.) Others reflect new concerns. I am sure that some readers will disagree with the picks, so I invite your comments. Most of these developments were reflected in a number of Religion Clause postings over the year. Links are to representative posts on the issue.

1. U.S. Catholic bishops are at increasing odds with President Obama over abortion. Very public disputes, sometimes splitting the Catholic community, erupted over Notre Dame's award of an honorary degree to Obama and over the USCCB's insistence on strict language in health care reform bills to limit abortion coverage.

2. Conservative Christian groups mount extensive but unsuccessful attempt to prevent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

3. The Freedom From Religion Foundation becomes a major player in pressing for church-state separation by challenging a wide variety of practices, from sectarian prayers at city council meetings, to the tax code's parsonage allowance, to engravings at the U.S. Capitol Visitor Center.

4. The Rifqa Bary case requires Florida and Ohio courts to become involved in run-away teenager's claim that her Muslim father threatens her life because of her conversion to Christianity.

5. U.S. Supreme Court rules that a Utah city can refuse to allow the religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there.

6. Britain's new Supreme Court holds that a Jewish school's admissions policy using the traditional Orthodox definition of who is a Jew amounts to ethnic, and therefore racial, discrimination.

7. Courts around the country decide disputes over ownership of property after numerous conservative Episcopal parishes move to Anglican affiliations.

8. South Carolina's attempt to issue state-sponsored "I Believe" license plates is ruled a violation of the Establishment Clause.

9. France convicts Scientology and its leaders of fraud while German court limits tactics of German government against Scientology.

10. A Utah trial court rejects a settlement proposed by Utah's Attorney General in the complicated attempt to reform the FLDS United Effort Plan Trust, while the estate of a deceased leader of the polygamous FLDS Church seeks control of the $120 million trust.

There are at least two other Top 10 lists published this month on religion related stories. You may find it interesting to compare their picks, many of which differ a good deal from mine, though they were using somewhat different criteria. They are Don Byrds' Top 10 Religious Liberty Stories of 2009; and Religion Newswriters Top 10 Religion Stories.

UPDATE: Politics Daily has also published an interesting list of Top 10 Religion/ Politics Stories of '09.

Pending Lawsuit Challenges Favoritism To Catholic School In Use of City Athletic Fields

AP yesterday reported on a lawsuit filed in October in federal district court in Rhode Island claiming that the Pawtucket Office of Parks and Recreation is showing favoritism toward religious schools. The complaint (full text) in Rogers v. Mulholland, (D RI, filed 10/14/2009), alleges that giving exclusive after-school use of two particular public athletic fields for practice by Catholic Saint Raphael's Academy, instead of allowing public schools to also use them, violates the Establishment Clause as well as the due process and equal protection clauses of both the U.S. and Rhode Island constitutions. St. Raphael's Academy is the alma mater of a number of influential city and state officials. An ACLU news release issued when the suit was filed indicates that the city has no written policies on issuing permits to use city athletic fields, leaving the decision in the total discretion of the city's superintendent of parks. [Thanks to Scott Mange for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Todd E. Pettys, Sodom's Shadow: The Uncertain Line between Public and Private Morality, (December 26, 2009).


• Neil James Foster, Freedom of Religion and Discrimination - Two Important UK Cases, (December 23, 2009).


• Legal Studies Research Paper Series, University of Wisconsin, No Altars: An Introduction to Islamic Family Law in US Courts, (December 16, 2009).

From SmartCILP:

• Symposium: The Natural Law in Protestant Political and Legal Thought. Articles by J. Daryl Charles, Michael DeBoer, Daniel R. Heimbach, Michael V. Hernandez, H. Wayne House, Mark Liederbach, Donald R. McConnell, Gilbert C. Meilaender, John Warwick Montgomery, Peter Judson Richards, Joe M. Sprinkle, Max L. Stackhouse, David VanDrunen and Ronald J. Wright. 2 Liberty University Law Review 607-995 (2008).


• Fr. Evaldo Xavier Gomez, Church-State Relations from a Catholic Perspective: General Considerations on Nicolas Sarkozy's New Concept of Laicite Positive, 48 Journal of Catholic Legal Studies 201-217 (2009).


• Piero A. Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 Journal of Catholic Legal Studies 269-301 (2009).

Recent and Forthcoming Books:

• David A. J. Richards, Fundamentalism in American Religion and Law : Obama's Challenge to Patriarchy's Threat to Democracy, (Cambridge University Press, Feb. 2010).


• Donald L. Drakeman, Church, State, and Original Intent, (Cambridge University Press, Nov. 2009).

U.S. Missionary Crosses Into North Korea, Complicating Diplomacy

Robert Park, a Korean-American missionary from Arizona has likely complicated U.S. negotiations with North Korea by illegally crossing into North Korea carrying a letter addressed to the country's ruler Kim Jong-il. Park is seeking release of the 160,000 political prisoners held are in concentration camps. Yesterday's New York Times reported that Park crossed into North Korea from China on Christmas Day by way of a frozen river near the North Korean city of Hoeryong. He repeatedly shouted in Korean: "I am an American citizen. I am coming here to deliver God's love. God loves you." Park says he will not leave until North Korea shuts down its camps. He wants to become a martyr. In a videotape he left, he said he does not want President Obama to buy his freedom.

UPDATE: North Korea announced on Dec. 29 that it has custody of an American who crossed into the country illegally on Christmas Eve. Apparently this is Robert Park, whose uncle says this is good news because it means Park was not executed. (CP).

Catholic Church Says Historic Designation of Building Infringes Its Rights

The Roman Catholic Diocese of Springfield, Massachusetts says that its First Amendment rights are threatened by the city's move to declare Our Lady of Hope Church an historic district. The Springfield Republican reports today that a final vote on the proposal, already approved by the Historical Commission and by a preliminary vote in City Council, is scheduled for Tuesday. The Italian Renaissance style church will close Dec. 31, as the parish is being merged. However some members petitioned for the historic designation to save the distinctive building erected by Irish immigrants in 1925. The diocese says the designation will make it more difficult to sell or redevelop the building, and questions whether one building alone can be declared an historic district. If the designation is approved, no changes to the exterior of the building could be made without Historical Commission approval.

Recent Prisoner Free Exercise Cases

In In re Taylor, (Cal. 1st App., Dec. 21, 2009), a California state appellate court held that RLUIPA claims may be brought in state court, and that a habeas proceeding may be used to raise the claim. On the merits, however, the court rejected an inmate's claim that prison rules limiting him to purchasing no more than 4 ounces of religious oils each three months imposed a substantial burden on his free exercise of religion. Any burden is also justified by the state's compelling interest in safe management of its maximum security prisons.

In Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 118555 (ED CA, Dec. 2, 2009), a California federal magistrate judge allowed an inmate to move ahead with his free exercise claim that the prison's
Native American Spiritual Leader failed to provide him with the prayer oil he ordered.

No "Necessity" Defense In Trial of Accused Killer of Abortion Doctor

On Tuesday, a state trial court judge in Wichita, Kansas, held that Scott Roeder, the accused murderer of abortion doctor George Tiller, will not be permitted to assert the defense of "necessity" at his trial that will begin next month. Yesterday's Christian Post reported that the judge said while he might permit Roeder to argue that he believed he was saving the lives of fetuses, he will not permit Roeder to assert the defense that he broke the law to prevent a greater harm.

Court Rejects Free Exercise Defense To Bald Eagle Act Prosecution

In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119228 (D NE, Dec. 22, 2009), a Nebraska federal district court accepted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 119230, Nov. 25, 2009) and denied a motion to dismiss charges under the Bald and Golden Eagle Protection Act that had been brought against defendant. Defendant, a member of the Omaha Tribe and the Native American Church, claimed that the charges violated his free exercise rights under the Religious Freedom Restoration Act. Without a permit, he killed two bald eagles to use in a feathering ceremony for his children that he wished to conduct while his grandfather was still alive. Eagle parts are available to members of recognized tribes from the National Eagle Repository. The court held:

[T]he repository and permit processes, while arguably inconvenient, do not impose a substantial burden on the defendant's right to practice his religion. The evidence established that a tribal member would have to wait ninety days to six months for delivery of feathers from the repository. This moderate delay does not deny the defendant a reasonable opportunity to practice his religion. Alternatively, the court finds that even if the Eagle Protection Act imposed a substantial burden, the government has met its burden to show that the repository and permit process are the least restrictive means to further the government's compelling interest in protecting and preserving the bald eagle population.

Catholic Hospitals Group Differs With Bishops On Senate Health Insurance Language

The New York Times reported yesterday that a Dec. 17 statement (full text) by the Catholic Health Association, which represents hundreds of Catholic hospitals across the country, apparently signals a split with the U.S. Conference of Catholic Bishops on the abortion language in the U.S. Senate's version of the health reform bill. (See prior posting.) The statement, issued before the final language of the bill was released, said that the hospital group was "increasingly confident that Senator Casey's language can achieve the objective of no federal funding for abortion." Scholars say the difference reflects differing views on whether "remote cooperation" was permissible in order to achieve a moral imperative of health insurance for millions of more Americans.

UPDATE: Catholic Health Association has told CNS 12/28 that the New York Times is wrong. There is not a split between CHS and the Bishops.

Federal Court Enjoins Illinois Hike In Fees For Lobbyists, Partly on Establishment Clause Grounds

In American Civil Liberties Union of Illinois v. White, 2009 U.S. Dist. LEXIS 119476 (ND IL, Dec. 23, 2009), an Illinois federal district court issued a temporary restraining order and preliminary injunction against enforcement of Illinois amended Lobbyist Registration Act. At issue were large increases in registration fees that were scheduled to go into effect January 1. ACLU alleged that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. It also claimed that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination as well as a violation of the Establishment Clause. (See prior posting.) Finding that the federal Tax Injunction Act does not divest the court of jurisdiction over the suit, the court held that the ACLU had demonstrated a reasonable likelihood of success on the merits:

[T]he ACLU has proffered figures derived from public records showing that the LRF has run an approximately $ 100,000 surplus for the last two fiscal years, during which the Secretary collected lobbyist registration fees one-third as large as the fees authorized in the Amended Act. .... These surpluses suggest that the Secretary may be unable to show that the three-fold increase in the lobbyist registration fee adequately relates to the costs of administering the Amended Act....

Moreover, on its face the statute appears to privilege religious over non-religious speech. The ACLU is therefore also likely to prevail on its claim that the Amended Act's exemptions for religious organizations and the newsmedia impermissibly discriminate against the ACLU based on the content of its speech. Indeed, by only exempting religious speakers who are "full-time employees of a religious organization" and who speak to the legislature about "protecting the right of the members [of that organization] to practice the religious doctrines of that church or religious organization" the statute also requires another content-based determination focused on religious speech.....

The ACLU's likelihood of success on its establishment clause challenge is equally plain..... On its face the content based determinations discussed above require the state to set the boundaries of a religious organization's exempt advocacy by inquiring into what the doctrines of a church or religious organization are and how the lobbying activities promote them. Requiring such an examination is likely to violate the establishment clause by fostering excessive government entanglement in religion....

Queen Elizabeth Delivers Christmas Speech

Britain Queen Elizabeth II's 2009 Christmas Speech was broadcast today (full text). In it, she focused on the entire Commonwealth. She said in part:

Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction, others are best forgotten. 2009 was a difficult year for many, in particular those facing the continuing effects of the economic downturn....

It is 60 years since the Commonwealth was created and today, with more than a billion of its members under the age of 25, the organisation remains a strong and practical force for good....

We know that Christmas is a time for celebration and family reunions; but it is also a time to reflect on what confronts those less fortunate than ourselves, at home and throughout the world. Christians are taught to love their neighbours, having compassion and concern, and being ready to undertake charity and voluntary work to ease the burden of deprivation and disadvantage. We may ourselves be confronted by a bewildering array of difficulties and challenges, but we must never cease to work for a better future for ourselves and for others.

The London Telegraph's coverage of the speech links to a video of it.

President Obama and First Lady Send Christmas Greetings

In a joint remarks released yesterday (full text), President Obama was joined by First Lady Michelle Obama to offer Christmas wishes to families across the country. Much of the address (billed as the President's Weekly Address) was directed to the American military and their families, offering thanks and support to them. The President reminded all Americans that:

even in these tough times, there's still so much to celebrate this Christmas. A message of peace and brotherhood that continues to inspire more than 2,000 after Jesus' birth. The love of family and friends. The bonds of community and country. And the character and courage of our men and women in uniform who are far from home for the holidays, away from their families, risking their lives to protect ours.

Final Defendants Sentenced In Tax Fraud Scheme By Hasidic Rabbi

According to a press release issued Monday by the U.S. Attorney's Office in Los Angeles, a California federal district judge has sentenced Grand Rabbi Naftali Tzi Weisz, the Brooklyn, New York, Grand Rabbi of Spinka, to two years in prison for orchestrating a money-laundering tax evasion scheme. Weisz plead guilty last summer to a criminal conspiracy charge (see prior posting), admitting to a scheme in which several of his charitable organizations solicited donations with secret promises to refund large percentages of the donations back to donors who deducted the entire amounts on their tax returns. A pre-sentence report concluded that this practice among certain Hasidic sects has resulted in hundreds of millions of dollars of unreported income. The final defendant in the case, Yaacov Zeivald, was sentenced to 4 months in prison for his part in the fraud. Five others have already been convicted and sentenced in the scheme.

Appeals Court Affirms Conviction of Street Preacher For Disorderly Conduct

In Commonwealth v. Marcavage, (MA App., Dec. 23, 2009), a Massachusetts Appeals Court upheld the conviction of a street evangelist who was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct under M.G.L., Ch. 272, S.53. Michael Marcavage, director of a proselytizing group, visits Salem every Halloween to preach to the crowds that gather there to celebrate. Many in the crowd complained about Marcavage waving a Bible too close to them. Eventually a police officer ordered Marcavage to stop using a megaphone. He resisted confiscation of the megaphone, argued, and then went limp. He fell into a fountain, bringing police officers to the ground with him. He was then arrested. The court affirmed his conviction, finding that his conduct amounted to "tumultuous behavior". It said: "we find nothing in the record to support the inference that the decision to curtail the defendant's use of the megaphone was in any way connected with the content of his speech."

Orthodox Jewish Medics Say Volunteer Fire Company Refused Accommodation

According to yesterday's Baltimore Sun, three medics who are Orthodox Jew, have filed complaints with the Maryland Commission on Human Relations and the U.S. EEOC, complaining that the Pikesville Volunteer Fire Co. has been unwilling to permit them to ride on emergency calls. The fire company says that the men's religiously mandated (but short-trimmed) beards might interfere with breathing masks that the Pikesville department was considering buying for its medic corps. However, according to one of the medics, Matthias Goldstein, medics have never been required to wear the masks. The three men say that the real reason for the refusal is Pikesville Volunteer Fire Company's resentment over their involvement with Hatzalah-- a competing volunteer rescue organization organized by Orthodox Jews in neighboring Northwest Baltimore. There have been conflicts between the two groups when Hatazalah responds to a call near or over the county line. A Pikesville spokesman denies the charge, and says this is purely a safety issue.

11th Circuit Hears Oral Arguments In Challenge To Park Rules Limiting Feeding the Poor

Last Thursday, the U.S. 11th Circuit Court of Appeals heard oral argument in First Vagabonds Church of God v. City of Orlando. In the case, a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. (See prior posting.) According to the Fulton County Daily Report, at last Thursday's oral argument, two of the judges on the panel expressed some skepticism over the district court's holding. However Judge Rosemary Barkett sharply questioned the city's lawyers, asking whether the food distribution actually put a burden on the parks.

2nd Circuit: World Trade Center Recovery Did Not Violate Free Exercise Rights

In World Trade Center Families for Proper Burial, Inc. v. City of New York, (2d Cir., Dec. 23, 2009), the U.S. 2nd Circuit Court of Appeals rejected an attempt by families of 9/11 victims to force New York City to reclaim the finely-sifted residue of the World Trade Center debris now at the City's Fresh Kills landfill in Staten Island and move it to a more suitable location, and to create a cemetery for the 1,100 who perished without identifiable remains. They argue that the sifted residue itself has become hallowed.

One of the claims put forward by plaintiffs was that the City's recovery efforts violated their right to the free exercise of religion. The court rejected the claim, concluding that the City's efforts did not target religious beliefs and that the City had a compelling interest in clearing the World Trade Center debris efficiently and economically. The court also rejected plaintiffs' due process claims, holding that they have no property interest in unidentifiable human remains, and that their dissatisfaction with the way the city handled recovery efforts did not rise to the level of a constitutional violation. The court concluded:

On a human level, plaintiffs' claims are among the most compelling we have ever been called on to consider. They have endured unimaginable anguish, and they seek nothing more than the knowledge that their loved ones lie in rest at a place of their choosing. We regret that we cannot bring them solace...

The decision was handed down only a week after the court heard oral arguments in the case. The New York Times reported on the arguments.

Police Protect Atheist Sign In Illinois Capitol

Next to the Christmas tree and near a nativity scene in the Illinois State Capitol Building, the Freedom From Religion Foundation has placed a sign reading:

At the time of the winter solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is just myth and superstition that hardens hearts and enslaves minds.

CBS News reports that William J. Kelly, a conservative activist and candidate for state comptroller, yesterday attempted to take down the sign, but was briefly detained and told to leave the building by Capitol police (who wrote up an incident report) when he turned the sign around so that it was face down. Kelly says the sign constitutes "hate speech" and mocks religion. He says that anyone going to look at the Christmas tree would be confronted by the sign because of its placement. Capitol police say it is their duty to protect any property in the Capitol building. [Thanks to Scott Mange for the lead.]

Rifqa Bary Case Moves Ahead As Her Lawyers Wait For Her To Turn 18

There have been new developments in the case of Rifqa Bary, the Ohio teenager who fled from her parents' home to a pastor in Florida, saying she feared her father would kill her because she had converted from Islam to Christianity. The 17-year old girl is now in foster care in Ohio. The Christian Science Monitor reports that an Ohio judge has approved a recommendation by an Ohio Children's Services Board caseworker (see prior posting) that calls for Rifqa and her family to discuss their views of religion with each other as a first step toward reunification. However the judge did not order the girl and her parents to meet face-to-face. Rifqa's lawyers want her to remain in foster care until she turns 18 and is legally entitled to make her own decisions. On Tuesday, the parents' lawyer also withdrew a motion they had filed seeking to have Christmas cards that were being sent to Rifqa screened by social workers. (See prior posting.)

Airline Settles With EEOC Over Failure To Grant Religious Accommodation

Yesterday's Twin Cities Pioneer Press reports that Mesaba Airlines (a subsidiary of Delta) has settled a religious discrimination lawsuit brought by the EEOC. A federal district court judge in Milwaukee on Tuesday approved a $130,000 settlement in the suit brought on behalf of five individuals who were refused accommodations of their religious beliefs. The consent decree will also require monitoring and training. The suit was initially filed on behalf of former customer-service agent Laura Vallejos was fired when she refused to work on the Jewish Sabbath. Subsequently the EEOC identified four Christians who were refused customer service jobs because they wanted time off to attend Sunday church services. Mesaba has since dropped its "no shift swap" policy and also no longer employs customer service agents.

County Reverses Order On Removing Stars and Angels From Christmas Trees

Bowing to a storm of criticism from around the world, Acting Sonoma County (California) Administrator Chris Thomas yesterday rescinded his request that stars and angels be removed from Christmas trees in county buildings. (See prior posting.) The original ban was put in place after a complaint by an activist who has a long history of opposing government use of religious symbols. According to yesterday's Santa Rosa (CA) Press Democrat, Administrator Thomas now says that county employees should just use their best judgment as to appropriate decorations in public spaces. Thomas said his original decision was based on concerns that the county would be seen as endorsing a particular religion, but he changed his mind after a conversation with County Supervisor Shirlee Zane convinced him that there were varying opinions on whether that was the case. Meanwhile, Barry Collins, a trial attorney in the Public Defenders Office, had put up a Christmas tree with a star in the lobby of his building to protest Thomas' ban. Collins is Jewish, but says he does not believe the star is a religious symbol. He contends it is symbolic of American tradition, like stars on the American flag. He points out there is a star on the White House Christmas tree. The entire issue will be discussed a a future county supervisors' meeting.

"War on Christmas" Subsides

An interesting article in Canada's National Post yesterday documents the reduced intensity of the this year's "War on Christmas" in the United States:

Because the furor was media-driven in the first place, media mentions seem as good a metric as any. After 2005, Google Trends shows a continuous decline in searches for and mentions of the "war on Christmas." Media mentions of a "war on Christmas" have fallen steadily as well, according to Nexis: There were 431 articles mentioning it as of Dec. 17, 2006; 187 by that time in 2007; 155 in 2008; and 97 in 2009. Even Fox News, the network that pushed the story in the winter of 2005, has essentially stopped talking about it: At this time in 2005, Fox had aired 80 episodes explicitly referring to the "war on Christmas"; in 2006, there were 24; in 2007, 11; in 2008, five; and three so far this year. The departure in 2008 of Fox News host John Gibson, who penned The War on Christmas: How the Liberal Plot To Ban the Sacred Christian Holiday Is Worse Than You Thought, may have had something to do with it.

As a result, some groups dedicated to secularism and the separation of church and state — the anti-Christmas warriors — have gotten fewer invitations to debate the issue on radio and TV.

Baghdad Conference Focuses On Future of Iraqi Christians

AINA this week reported on a conference held in Baghdad on Dec. 11-12 to discuss the future of Iraq's Christian community. Attended by over 120 leaders of Christian groups and former and current government officials, the conference made dozens of recommendations, mostly to the government of Iraq, but some to Kurdistan, the UN, the international community and Iraqi Christians themselves. The recommendations (set out in the AINA report) ranged from urging Iraq's federal government to provide greater security for Christians and other minorities to urging Christian satellite channels to refrain from programming that encourages Christians to leave for Western countries.

Defendant Gets Light Sentence From Tribal Court For Bald Eagle Act Violation

As previously reported, the long-running 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, was transferred to a tribal court. In the case, the 10th Circuit rejected Friday's challenge to the Bald and Golden Eagle Protection Act, and the Supreme Court denied cert. AP reports that yesterday Winslow Friday pleaded guilty in a Shoshone and Arapaho Tribal Court on the Wind River Indian Reservation in Wyoming. He was fined $2500 and his hunting privileges on the reservation were suspended for a year. In federal court, Friday faced a possible sentence of a year in jail and a $100,000 fine. Those charges will now be dismissed.

Obama Gives Christmas Message To Children At D.C. Boys and Girls Club

On Monday, President Obama visited a Boys and Girls Club in Washington, D.C. and gave the children present a largely religious-themed message about Christmas. The White House has posted his remarks and the response by the children listening. Here is part of it:

THE PRESIDENT: I think one thing that's important to remember is that, even though there's a lot of fun at Christmas, you know, you got -- especially when it's snowy like this, so it's pretty outside, you got the Christmas tree, you got the Christmas cookies, you've got presents. You know, I think that the most important thing is just to remember why we celebrate Christmas.

CHILD: I know!

THE PRESIDENT: Do you know?

CHILD: The birth of baby Jesus.

THE PRESIDENT: The birth of baby Jesus, and what he symbolizes for people all around the world is the possibility of peace and people treating each other with respect. And so I just hope that spirit of giving that's so important at Christmas, I hope all of you guys remember that as well. You know, it's not just about getting gifts but it's also doing something for other people....

CHILD: I know why we give gifts to other people.

THE PRESIDENT: Why is that?

CHILD: Because the three wise men gave gifts to baby Jesus.

THE PRESIDENT: That's exactly right.... You know, the three wise men, if you think about it, here are these guys, they have all this money, they've got all this wealth and power, and yet they took a long trip to a manger just to see a little baby. And it just shows you that just because you're powerful or you're wealthy, that's not what's important. What's important is what's -- the kind of spirit you have.

So I hope everybody has a spirit of kindness and thoughtfulness, and everybody is really thinking about how can they do for other people -- treating them well, because that's really the spirit of Christmas....

THE PRESIDENT: ...[T]he thing that I want everybody to remember, the most important message I can leave is, is that you guys have so much potential -- one of you could end up being President some day. But it's only going to happen if you stay focused and you work hard in school.... That's the most important thing you can do.

Ethnic Limits For Political Positions In Bosnian Constitution Struck Down By European Court

Yesterday the European Court of Human Rights in Sejdic and Finci v. Bosnia and Herzegovina ruled that the provisions in the Bosnian Constitution that limit seats in the lower house of Parliament, and the country's Presidency to Bosniacs, Croats and Serbs violate the European Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. A press release by the Court reporting on the decision says the arrangement, growing out of the 1995 Dayton Peace Accords, violates the anti-discrimination provisions of Art. 14 of the Declaration taken together with Art. 3 of Protocol No. 1 (right to free elections),as well as Art. 1 of Protocol 12 of the Convention. The case was brought by two public figures, one a Roma and the other who is Jewish, challenging the ethnic restrictions. JTA reported on the decision.

Attorney Claims Religious Rights of Ft. Hood Shooting Suspect Are Being Infringed

According to Monday's San Antonio Express News, the attorney for accused Ft. Hood shooter Maj. Nidal Malik Hasan says that his client's free exercise rights are being infringed. The Muslim psychiatrist who is charged with killing 13 is subject to pre-trial conditions that require him to speak only in English with his visitors at Brooke Army Medical Center or in phone calls, unless an Army-approved translator is present. Invoking this, police guarding Hasan cut short a Friday telephone conversation he was having with his brother. Lawyer John P. Galligan says that Hasan was praying from the Qur'an in Arabic in the phone call that was cut short.

Cuban Cardinal Will Give Christmas Message On State TV

AP reported yesterday on a new sign of the improving relationship between the government of Cuba and the Catholic Church. For the second year in a row, Cuban Cardinal Jaime Ortega will read a Christmas message on state television. His message will include thanks for the U.S.'s recently loosened restrictions on Cuban-Americans who want to send money or travel to Cuba. Slow improvement in relations between the government and the Church began in the early 1990's.

Vatican Will Require Permission For Use of Pope's Name, Photo, Coat of Arms

Zenit reports that the Vatican issued an announcement Saturday indicating that the Holy See will be taking steps to protect its intellectual property rights in the name, picture and coat of arms of Pope Benedict XVI. The Vatican Press Office said that "the use of anything referring directly to the person or office of the Supreme Pontiff -- his name, his picture or his coat of arms -- and/or the use of the title 'Pontifical,' must receive previous and express authorization from the Holy See." The Vatican is particularly concerned with "use the Pope's name in the title of universities, schools or cultural institutions, as well as associations, foundations and other groups." [Thanks to Scott Mange for the lead.]

Bishops Continue To Oppose Senate Health Care Bill-- Looking At Why

While the U.S. Senate appears poised to finally pass a health care reform bill before Christmas, the U.S. Conference of Catholic Bishops remains opposed to the Senate version on the ground that its limits on abortion funding do not go far enough. According to statements issued last Friday and Saturday by the Bishops, the Manager's Amendment (full text) to H.R. 3590 "does not seem to allow purchasers who exercise freedom of choice or of conscience to 'opt out' of abortion coverage in federally subsidized health plans that include such coverage. Instead it will require purchasers of such plans to pay a distinct fee or surcharge which is extracted solely to help pay for other people's abortions." The Bishops stressed that their criteria for acceptable health care reform includes three moral criteria: "respect for life and conscience; affordability for the poor; and access to much-needed basic health care for immigrants." According to The Boston Pilot yesterday, the Bishops applauded amendments that expanded adoption tax credits and assistance for pregnant women, but the abortion language apparently remains the block to obtaining their support.

At issue is nine pages of language (pp. 38-46 of Manager's Amendment) on how abortion coverage will be handled. It provides (1) any state may elect to bar abortion coverage in policies offered through the Exchange in that state; (2) elsewhere each insurance company may decide whether or not its plans will cover abortion services; (3) if a plan does cover abortions, no federal subsidy may be used to pay for that coverage; (4) instead the insurer must collect a separate payment from the insured for that coverage and segregate those funds for use for abortion services.

The Bishops' concern seems to be that under this arrangement, abortion coverage will still be in some policies that receive government subsidies, so long as a separate check is written for the part of the premium applicable to that coverage. Instead, according to a Dec. 14 letter from the Bishops, they want language in the House bill that was proposed as an amendment by Sen. Ben Nelson, but was defeated by the Senate. That language provides that no federal funds could be used "to cover any part of the costs of any health plan that includes abortion coverage." After that loss, Sen. Nelson negotiated the language in the Manager's Amendment and according to AP argued that the differences were "about a staple." By that he means that the disagreement is over whether abortion coverage-- which would be paid for separately in either case-- would be a part of the subsidized policy (not acceptable to the Bishops) or in a separate rider stapled to it (acceptable to the Bishops).

As an aside, the U.S. is not the only country struggling with the abortion issue. Interfax reported yesterday that Russian President Dmitry Medvedev has signed amendments to the country's Federal Advertising Law banning the advertising of abortions in a wide variety of media and locations. Many of the restrictions seem to be aimed at preventing advertising of abortions to minors.

NY Court Upholds Bifurcated Arbitration Procedure By Rabbinical Tribunal

In Shimon v. Silberman, (NY Sup. Ct., Dec. 21, 2009), a New York trial court, in a decision it described as involving an issue of first impression, confirmed an award made in a bifurcated arbitration proceeding conducted by the Shevet Halevi Rabbinical Court. The award involved a $465,000 unpaid balance on a promissory note from a loan used by the Sanz-Klausenber Chassidic Community to complete construction of the new building for the Sanz girls school. In an initial ruling, the Rabbinical Court found liability, but postponed determining the amount until an additional hearing was held. At that point respondents informed the Rabbinical Court that they would not attend any future hearing. A subsequent decision established the amount of liability and ordered it paid within a month. The state trial court rejected respondents' arguments that the bifurcated process amounted to a change in an initial arbitration award without following the statutory procedures for modification. Respondents also argued that the award was not served on them as required by statute. However the court held that no prejudice had been shown by respondents that would justify the award being vacated.

Mexico City Approves Gay Marriage, Adoptions

Mexico City yesterday became the first Latin American city to legislatively approve same-sex marriage. (A court decision in Buenos Aires, Argentina in November had approved same-sex marriages, but the issue is tied up in further litigation.) CNN and AP report that the city's legislative assembly approved the change by a vote of 39-20, with 5 abstentions. In a second vote of 31-24, with 9 abstentions, the assembly approved legalizing adoptions by same-sex couples. Mayor Marcelo Ebrard is expected to sign the law. The Roman Catholic Church which is the dominant religion in Mexico opposes the change. 91% of Mexico's population is Catholic. (Background.) The city had approved same-sex civil unions in 2007.

5th Circuit: Town Not Liable For Police Officer's Infringement of Preachers' Rights

In World Wide Street Preachers Fellowship v. Town of Columbia, (5th Cir., Dec. 21, 2009), the U.S. 5th Circuit Court of Appeals held that the Town of Columbia, Louisiana is not liable under 42 USC Sec. 1983 for the violation of First Amendment rights of a group of preachers by a town police officer who in February 2005 threatened the group with arrest if they did not disperse. The preachers' group demonstrates along roadways carrying anti-abortion signs, including ones with pictures of aborted fetuses. They had demonstrated in Columbia a number of times without police interference.

There is no respondeat superior liability under Section 1983, so another basis must be found if the town is to be held liable. The court rejected three different bases for liability that were urged by plaintiffs. It concluded that Columbia did not have a custom or practice of applying inapplicable statutes to limit the preachers’ rights to demonstrate because of the graphic nature of their signs; 2) the town did not ratify the police officer's decision to violate the preachers’ rights; and 3) Columbia did not have a policy of failing to adequately train its police officers on the rights of protesters. AP yesterday reported on the decision. (See prior related posting.)

Indian Court Orders Participation For Dalit Village In Hindu Festival

In India, the Madras High Court has issued a decision in favor of low caste Dalits who want to be part of the annual festival observed during the Tamil summer month of Aadi in which the diety from the Arulmighu Poottai Mariamman Temple near Sankarapuram is transported on a temple car. The court's decision is the subject of reports today in the Times of India and The Hindu. Controversy began in 2007 when Dalits demanded that the temple car go through their village and temple authorities objected. The temple is under the control of the state's Hindu Religious and Charitable Endowments Department. High Court Justice Chandru said in his opinion: "Our Constitution also envisages equality, which includes special help and care for the weaker and oppressed sections of society, who have been downtrodden for thousands of years." The court ruled that the only constraint on taking the temple car through the Dalit village would be the width of the road. If that is a problem, authorities are to explore the feasibility of using a small car (sakadai) to take the deity through the Dalit colony and then back to the main street.

County Removes Stars and Angels From Its Christmas Trees

In Sonoma County, California, Acting County Administrator Chris Thomas has ordered stars, angels and other religious symbols removed from all Christmas trees in county buildings after a complaint was filed by an activist who has a long history of opposing government use of religious symbols. Yesterday's Santa Rosa (CA) Press Democrat reports that the complaint was lodged by Irv Sutley, a disabled veteran who is an atheist and is chairman of the Sonoma County Peace and Freedom Party. County Administrator Thomas said he was not aware that a star on top of a Christmas tree might be seen as a religious symbol until consulting with county attorneys.

Anglican Priest Sues His Attorney For Malpractice After He Loses Fraud Suit

In 2002, Episcopal Bishop Charles Bennison summarily removed Rev. David Moyer as rector of Good Shepherd Episcopal parish in Rosemont, Pennsylvania on the ground that he had abandoned the communion of the Episcopal Church when he was ordained by the more conservative Traditional Anglican Union. In response, Moyer sued Bishop Bennison for fraud. However Moyer lost his suit when the jury found no fraud had been perpetrated. (See prior postings 1, 2, 3.) Now, according to Virtue Online yesterday, Fr. Moyer is suing the attorney who handled his case against Bishop Bennison for malpractice. Meanwhile Moyer remains rector of Good Shepherd which still pays his salary, as the suit by the Diocese to recover Good Shepherd property and assets goes on.

In his malpractice suit, Moyer claims that his former lawyer, John H. Lewis, Jr., and his law firm, Montgomery, McCracken, Walker & Rhoads, mishandled his deposition and failed to present certain key evidence to the jury. The law firm has counterclaimed alleging that the malpractice suit was brought in bad faith. Attorney Lewis, who had been close friends with Moyer, handled the trial and pre-trial for him pro bono. Now though the law firm's counterclaim includes a claim for $66,000 in unpaid legal fees, apparently for legal work since the trial responding to the lawsuit by the Diocese that is attempting to regain control of Good Shepherd.

6th Circuit Upholds Deportation To Jordan of Christian Couple, Rejecting Persecution Claims

In Helal v. Holder, (6th Cir., Dec. 17, 2009), the U.S. 6th Circuit Court of Appeals agreed with the Board of Immigration Appeals that a Palestinian Christian couple who are citizens of Jordan are not entitled to withholding of removal from the United States for fear of religious persecution in Jordan. The court held that the harassment and discrimination the couple experienced in Jordan because of their Christian faith did not rise to the level of persecution that the statute requires for withholding of removal. Nor did they demonstrate a likelihood that they would suffer future persecution if returned to Jordan. While there is arguably a pattern of persecuting Christians who have converted from Islam, there is no evidence of similar persecution in Jordan of those who were born as Christians. The couple also failed to show that they were eligible for protection under the Convention Against Torture.

Israel's High Court Finds Alternative To Contempt In Kosher Certification Challenge

In June, Israel's High Court of Justice ordered the country's Chief Rabbinate to issue a kashrut certificate (certifying the business is kosher) to a bakery operated by a Messianic Jew after the Chief Rabbi of Ashdod Yosef Sheinin, withdrew it claiming that the owner could not be trusted to maintain the proper standards of kashrut without enhanced supervision. (See prior posting.) Rabbi Sheinin has still not complied, and Israel's Chief Rabbi Shlomo Amar has asked the Knesset to enact legislation to remove High Court jurisdiction over matters of kashrut. (YNet News 12/13.) This morning the High Court, instead of holding Rabbi Sheinin in contempt, issued an order requiring the Chief Rabbinate to designate another rabbi who will grant the kashrut certificate. (YNet News, 12/21.) The court ordered the certification to be issued within a month. (Arutz Sheva.) [Thanks to Joel Katz, Relig. & State In Israel, for the lead.]

Child Support Fight Over Home Schooling and Catholic Beliefs Back In Appeals Court

In McFarlane v. McFarlane, (OH Ct. App., Dec. 17, 2009), an Ohio appellate court was faced with two questions involving the relationship of parents' religious views to the award of child support. The parties' original divorce action also found its way to the state court of appeals three years ago. (MacFarlane I -prior posting).) (Also see prior related posting.) In that decision, the court affirmed award of child custody to the husband. A central issue in the disagreement between the parents was the wife's claim that her Catholic religious beliefs required that she home school her children. The trial court in awarding custody to the father, also ordered the children be enrolled in a traditional school, rather than home schooled. In the current phase of the case, the court below ordered the mother, whose income is only one-quarter that of the father's because she chose not to work full time, to pay child support to the father, in part because of the added expenses involved in sending children to a Catholic parochial school rather than public school. The Court of Appeals however, reversed on this issue, holding that "it seems unjust and inappropriate to require wife to pay for private schooling when enrolling the children in a traditional school, be it private or public, was clearly not her preference."

A second issue involved the wife's contention that she should be able to show that there was an ongoing agreement between her and her husband that she not work outside the home so she could properly raise her children during her visitation times. The court held that the law of the case required exclusion of this evidence since the court of appeals in the original divorce case held that any claimed agreement flowing from the Catholic marriage ceremony is unenforceable under the statute of frauds since it is an agreement made on the consideration of marriage that is not in writing.

FLDS Polygamist Gets 33 Years For Sexual Assault On Child

Last Thursday, a jury in Eldorado, Texas last Thursday sentenced FLDS member Allan Eugene Keate to 33 years in prison for sexually assaulting a child. The Salt Lake Tribune last week reported on the conviction of Keate for his "spiritual " or "celestial" polygamous marriage to a 15-year-old girl who gave birth at age 16. The San Angelo Standard Times reports that Keate had given away three of his own daughters in marriage to older men. Keate was one of ten men indicted in November 2008 on charges of sexual assault growing out of illegal marriages to underage girls. AP reports that Keate had six wives ages 17 to 49 in 2007.

Malaysian Coalition Calls For Royal Commission On Religious Issues

In Malaysia, the Pakatan Rakyat (a coalition of three political parties) has formally proposed the creation of a Royal Commission to deal with religious issues, particularly where civil and syariah law overlap. Saturday's Malaysian Insider reported on the coalition's new Common Policy Framework document which defends the dominant position of Islam in Malaysia, but calls for more dialogue between various cultures and religions to promote understanding in the face of increasing religious extremism. It also promises to assure suitable burial places for all religions. The new statement avoids calling for creation of an Islamic state-- a position that has been the contentious policy of one coalition partner, the PAS.

Recent Articles and Books of Interest

From SSRN:

• Konstantinos G. Margaritis, The Freedom of Religion and its Limits in Greece and the Netherlands: A Comparative Approach, (December 15, 2009).
• Justin R. La Mort, The Soundtrack to Genocide: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again, (Interdisciplinary Journal for Human Rights Law, Vol. 4, Forthcoming).
• Michael James O'Connor, Legitimate Defense of Civil Rights or Raw Congressional Power Grab? The Constitutionality of the Freedom of Choice Act, (October 28, 2009).
• Stephen Matthew Feldman, Divided We Fall: Religion, Politics, and the Lemon Entanglements Prong, (First Amendment Law Review, Vol. 7, 2009).

From SmartCILP:

• Nicole C. O'Neal, The Development of Islamic Finance in America: The Future of Islamic Real Estate Investment Trusts, 44 Real Property, Trust & Estate Law Journal 279-297 (2009).

New Books

• Dawinder S. Sidhu & Neha Singh Gohil, Civil Rights in Wartime: The Post 9/11 Sikh Experience, (Ashgate Publishing Group, Dec. 2009).
• Lake Lambert III, Spirituality, Inc.: Religion in the American Workplace, (NYU Press, Dec. 2009).
• Stig Jarle Hansen, Atle Mesoy, and Tuncay Kardas (eds.), The Borders of Islam: Exploring Samuel Huntington’s Faultlines from Al-Andalus to the Virtual Ummah, (Columbia University Press, Nov. 2009).

Recent Prisoner Free Exercise Cases

In Manning v. Ryan, (9th Cir., Dec. 14, 2009), the U.S. 9th Circuit Court of Appeals upheld dismissal of a prisoner's free exercise claim because plaintiff failed to comply with the trial court's order to serve the remaining defendant with the amended complaint.

In Williams v. Sampson, 2009 U.S. Dist. LEXIS 116438 (ED CA, Dec. 15, 2009), a California federal magistrate judge concluded that an inmate's vague allegations of infringement of religious rights were insufficient for him to move ahead with an equal protection or free exercise claim.

In Black v. Ellsworth, 2009 U.S. Dist. LEXIS 116305 (SD IN, Dec. 11, 2009), an Indiana federal district court found that a Rastafarian inmate's religious needs were not disregarded. The jail chaplain ordered a special diet for him, provided him with a King James version of the Bible and informed him he would be allowed to keep a copy of the Holey Piley if he could secure a copy from someone outside of the jail.

In Dean v. Giles, 2009 U.S. Dist. LEXIS 116355 (MD AL, Nov. 19, 2009), an Alabama federal magistrate judge recommended rejecting First amendment and RLUIPA claims by a Native American inmate who complained that prison barbers cut his hair short in violation of his religious beliefs that required he keep his hair uncut. Plaintiff never told prison officials of his religious beliefs, nor did he object to the haircuts prior to filing this lawsuit. The court said that unintentional interference with religious exercise does not amount to actionable conduct by prison officials. the court also noted that prison grooming policies have repeatedly been upheld by various courts.

In Curry v. Bobby, 2009 U.S. Dist. LEXIS 116887 (ND OH, Dec. 16, 2009), an Ohio federal district court rejected claims by a Rastafarian prisoner in a maximum security facility that his free exercise rights and his rights under RLUIPA were violated when he was denied permission to wear his hair in dreadlocks.

In Johnson v. Boyd, 2009 U.S. Dist. LEXIS 117090 (ED AR, Dec. 15, 2009), an Arkansas federal district court accepted a magistrate's recommendation (2009 U.S. Dist. LEXIS 117071) and permitted an inmate to proceed with his free exercise claim against prison officials only in their individual capacities. Plaintiff claims that, while he was in protective custody, defendants seized his Bible.

In Stearns-Miller v. State of Florida, 2009 U.S. Dist. LEXIS 117663 (ND FL, Nov. 16, 2009), a Florida federal magistrate judge recommended dismissal without prejudice of claims by an inmate that his rights under the 1st Amendment and RLUIPA were violated when prison officials refused to allow him to listen to an audio cassette of the Bible and refused to process of 200 pieces of his mail, some of it to clergymen. Since plaintiff had previously been found at least three times to have filed frivolous litigation, the court, under 28 USC 1915(g) refused to permit he to proceed in forma pauperis.

India's Parliament Gets Report Urging Delinking Scheduled Caste Status From Religion

In India on Friday, the Report of the National Commission for Religious and Linguistic Minorities was finally submitted to Parliament. The report of the Commission that is headed by former India Supreme Court Justice Ranganath Misra was originally circulated two years ago, but then disappeared from public view. According to Indian Express, the report's recommendations include delinking Scheduled Caste status from religion and setting aside a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. Currently Scheduled Caste status is available only to Hindus, Buddhists and Sikhs. The report also calls for continuing Scheduled Caste status for Dalits who convert from Hinudism to other religions. The Times of India has details. The government today said it will examine the report "with all sincerity", but refused to commit to accepting its recommendations. (Times of India.)

2nd Circuit: No Right To Be Free of Selective Immigration Law Enforcement

In Turkmen v. Ashcroft, (2d Cir., Dec. 18, 2009), the U.S. 2nd Circuit Court of Appeals rejected claims by seven Arab and Muslim detainees who were in the United States illegally. The now-deported detainees argued that their period of detention before they were removed from the country was illegally prolonged so the government could investigate whether they were tied to terrorism. As reported by New York Law Journal, plaintiffs' counsel contended that the government used religion and ethnicity as a proxy for suspicion of terrorist activity in deciding to prolong plaintiffs' detention. The Second Circuit, however, dismissed plaintiffs' equal protection claims on qualified immunity grounds. It held that "plaintiffs point to no authority clearly establishing an equal protection right to be free of selective enforcement of the immigration laws based on national origin, race, or religion...."

Two Religious Displays On Their Way To Government Property

While a number of governmental units this year are removing religious displays (see prior posting), there is some movement in the opposite direction. Reports from the Oklahoman and AP indicate that last Thursday the Oklahoma Capitol Preservation Committee voted to implement a law passed by the legislature earlier this year (see prior posting) to place a privately funded Ten Commandments monument on the grounds of the State Capitol. It will be placed on an existing raised walkway on the north side of the building. The Commission chairman said he hoped this would start a long-planned development of that area for additional monuments and sculptures. While the 10th Circuit earlier this year struck down a Ten Commandments display on the grounds of an Oklahoma county courthouse (see prior posting), drafters of the state law hope to avoid a similar fate by calling for a monument identical to the one upheld by the U.S. Supreme Court in 2005 in Van Orden v. Perry.

Meanwhile the Luzerne County, Pennsylvania, Commissioners are working to restore a nativity scene and menorah removed last week from the courthouse lawn after a complaint by the ACLU and Americans United. (See prior posting.) A local Wilkes-Barre law firm is contributing $1000 and offering its legal services free of charge to develop a display that meets constitutional standards by also including non-religious elements. According to yesterday's Wilkes-Barre Citizens Voice, an ACLU staff attorney said: "We applaud the county for wanting to comply with the law and we'll see how they do."

Court Refuses To Dismiss Challenge To Graded Released Time Religious Course

In Moss v. Spartanburg County School District No. 7, 2009 U.S. Dist. LEXIS 117744 (D SC, Dec. 17, 2009),a South Carolina federal district court refused to dismiss an Establishment Clause challenge to the released time program for religious instruction that was set up by the Spartanburg County (SC) School District. After finding that parents of school children and the Freedom From Religion Foundation have standing, the court held that plaintiffs had stated a "facially plausible" Establishment Clause claim. Plaintiffs alleged that students attending off-site released time courses get an advantage in competition for state college scholarships and other educational opportunities. Students are given an academic grade for the released time course based on the student's religious status and progress as evaluated by the religious group offering the course. The grades are awarded by a nearby religious high school and then transferred for credit to the student's public high school transcript. This distinguishes the program from the U.S. Supreme Court's decision in Zoraach v. Clauson which upheld a New York released time program. The federal district court however dismissed a second claim by plaintiffs asserting an equal protection violation.

Court OKs Eminent Domain In Cemetery Acquisition for O'Hare Airport Expansion

The Chicago Tribune reports that on Friday, an Illinois state trial court ruled that Chicago can proceed with acquiring by eminent domain the 6.3 acre St. Johannes Cemetery in order to build a new runway at O'Hare Airport. Some 900 known graves will be moved. St. John's United Church of Christ that owns the cemetery says that the beliefs of those buried there call for them to "remain undisturbed until the day of resurrection of Jesus Christ." This is one of the last impediments to beginning construction after a settlement with the village of Bensenville last month. In 2006, the D.C. Circuit rejected a RFRA challenge to the relocation plans. (See prior posting.)

UN General Assembly Passes Defamation of Religion Resolution With Less Support Than Last Year

Today for the fifth year in a row, the United Nations General Assembly passed a non-binding resolution calling for "adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of religions, and incitement to religious hatred in general."It also condemns ethnic and religious profiling of Muslims. Reuters reports that the vote was 80 in favor, 61 against and 42 abstentions. The resolution, sponsored by the Organization of the Islamic Conference, has been widely criticized in Western countries as laying a groundwork for overly broad blasphemy laws. Support for the resolution has been declining each year. This year six fewer nations than last year voted in favor of it. Angela Wu of the Washington-based Becket Fund for Religious Liberty said: "The concept of 'defamation of religions' undermines the foundations of human rights law by protecting ideas instead of people, and empowering states instead of their citizens." (See prior related posting.)

U.S. Muslim Groups Express Increasing Suspicion of FBI Activities

A front-page article in today's New York Times reports on the increasing tensions in the U.S. between the FBI and Muslim organizations. A relationship that had been built beginning in 2001 has unraveled after FBI informers have infiltrated mosques to locate those who may be planning terrorist activity. Many Muslims are increasingly concerned that FBI informers may be everywhere, and are more hesitant to volunteer for Muslim charitable groups. Law enforcement officials are concerned that these suspicions may result in loss of an early-warning system against domestic terrorism that has been created.

Irish Court Upholds Regulation of Sale of Mass Cards

RTE News and IOL News report that a High Court judge in Ireland yesterday upheld the constitutionality of Section 99 of the 2007 Charities Act that bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. (See prior posting.) The challenge was brought by Thomas McNally whose business sold 120,000 Mass cards each year under an agreement with a Polish priest in the West Indies until bishops intervened to withdraw approval. McNally paid the priest 3600 Euros per year to say three masses per month for those for whom the Mass cards were purchased. McNally argued that the Charities Act provision is an unconstitutional infringement of his free exercise of religion protected by Article 44 of Ireland's Constitution, and that it infringed the rights of those buying the cards to profess and practice their religion freely. The court concluded that McNally had not shown that in selling pre-signed Mass cards he was engaged in the profession or practice of his religion. The court also concluded that any favoritism to the Church over McNally's business did not constitute prejudicial discrimination.

Court Upholds Executed Prisoner's Religious Objection To Autopsy

In Nashville on Wednesday, a Davidson County, Tennessee, judge ruled that the state must honor the request of executed prisoner Cecil Johnson that no autopsy be performed on his body. According to yesterday's Tennessean, Chancellor Russell T. Perkins ruled that the state had not presented a compelling reason to reject the strong religious objections to an autopsy that Johnson expressed in a letter to the court before his execution by lethal injection. Johnson's wife promised to waive any right to sue the state over the method of execution if the state would forgo the autopsy.

Latino Elected Officials Using Jesus Poster To Encourage Census Participation

USA Today reported yesterday that the National Association of Latino Elected Officials is leading the drive to encourage Latinos to take part in next year's census through the use of a poster depicting Jesus. This will counter efforts by at least one other Latino group that is encouraging Hispanics to boycott the census to protest Congress' failure to liberalize immigration laws. Thousands of the new posters, most of them in Spanish, are targeted at Latino evangelicals. Rev. Miguel Rivera, chairman of the National Coalition of Latino Clergy and Christian Leaders, however, objects to the posters as "blasphemous" and a violation of separation of church and state. The Commerce Department says the government had no role in creating the posters and did not pay for them. The Leadership Conference on Civil Rights that has its own campaign to encourage everyone to be counted in the 2010 Census likes the posters and will produce versions of them in English, Korean, Creole and Vietnamese.