Man Arrested After Suit Claims Religious Entitlement To Use Force At Abortion Clinic

In Plano, Texas, the FBI has arrested Erlyndon Joseph ''Joey'' Lo on charges of using interstate commerce to communicate a threat and threatening force to intimidate clients and employees of a reproductive health service. New York Times reported yesterday that the charges grew out of a class action lawsuit filed by the 27-year old Lo in Plano, Texas in which he threatened to use deadly force to stop an abortion at a named clinic in Dallas if the U.S. Supreme Court did not act immediately to stop abortion. He alleged:

My religious beliefs include the beliefs that an individual is alive at the moment of conception, abortion is murder and is the worst murder of all murders possible because these babies are completely defenseless, and I am entitled under my religious beliefs to use deadly force if necessary to save the innocent life of another.

The lawsuit was brought against the Supreme Court an asked for $999 trillion in damages. [Thanks to Scott Mange for the lead.]

Court Enjoins Military Base Rule That Bars Anti-Islamic Decals On Vehicles

In Nieto v. Flatau, (ED NC, March 31, 2010), a North Carolina federal district court enjoined officials at Camp Lejeune (NC) from enforcing a Base regulation prohibiting the display of extremist, indecent or racist messages on vehicles. Plaintiff was ordered to remove several anti-Islamic decals from his vehicle. The court concluded that the military base is a non-public forum. However it found that that the regulation was not applied in a viewpoint-neutral manner since pro-Islamic decals would be allowed. AP reported on the decision last week. (See prior related posting.) [Thanks to First Amendment Center via Charlotte E. Hunter for the lead.]

President Obama Hosts Easter Prayer Breakfast

The White House this morning hosted Christian leaders from across the country at an Easter Prayer Breakfast. In remarks delivered in the East Room (full text), the President said in part:

One of my hopes upon taking this office was to make the White House a place where all people would feel welcome. To that end, we held a Seder here to mark the first Passover. We held an Iftar here with Muslim Americans to break the daily fast during Ramadan. And today, I’m particularly blessed to welcome you, my brothers and sisters in Christ, for this Easter breakfast....

I can’t tell any of you anything about Easter that you don’t already know. (Laughter.) .... But what I can do is tell you what draws me to this holy day and what lesson I take from Christ’s sacrifice and what inspires me about the story of the resurrection.

For even after the passage of 2,000 years, we can still picture the moment in our mind's eye. The young man from Nazareth marched through Jerusalem; object of scorn and derision and abuse and torture by an empire. The agony of crucifixion amid the cries of thieves. The discovery, just three days later, that would forever alter our world -- that the Son of Man was not to be found in His tomb and that Jesus Christ had risen. We are awed by the grace He showed even to those who would have killed Him. We are thankful for the sacrifice He gave for the sins of humanity. And we glory in the promise of redemption in the resurrection.

And such a promise is one of life’s great blessings, because, as I am continually learning, we are, each of us, imperfect. Each of us errs -- by accident or by design. Each of us falls short of how we ought to live. And selfishness and pride are vices that afflict us all.

Supreme Court Refuses Review In Alleged Anti-Muslim Bias of Juror

Yesterday the U.S. Supreme Court denied certiorari in Al-Turki v. Colorado (Docket No. 09-700) (Order List.) In the case, Colorado state courts refused to exclude or allow closer questioning in voir dire of a potential juror who said he might be prejudiced against Muslims. The man was seated on the jury in a trial that included anti-Muslim themes and comments. Yesterday's Christian Science Monitor and Scotus Blog both discuss the case in which the government of Saudi Arabia filed an amicus brief urging the court to grant review.

Recent Articles of Interest

From SSRN:

• Geoffrey P. Miller, The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-18, March 24, 2010).
• Geoffrey P. Miller, Of Floods and Towers: The Bible’s Affirmative Case for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-19, March 24, 2010).
• Geoffrey P. Miller, Patriarchy: The Political Theory of Family Authority in the Book of Genesis, (New York University School of Law, Public Law Research Paper No. 10-23, April 2, 2010).
• Adham A. Hashish, Islamic Ijtihad: The Key to Islamic Democracy Bridging and Balancing Political Islam and Intellectual Islam, (Richmond Journal of Global Law & Business, Vol. 9, No. 61, Winter 2010).
• Hans-Martien Ten Napel Th.D., Protestantism, Globalization and the Democratic Constitutional State, (Reshaping Protestantism in a Global Context, Volker Küster, ed., LIT, 2009).
• Mark Rahdert, Forks Taken and Roads Not Taken: Standing to Challenge Faith-Based Spending, (March 19, 2010).
• Jennifer Gerarda Brown, Peacemaking in the Culture War between Gay Rights and Religious Liberty, (Iowa Law Review, Vol. 95, p. 747, 2010).
• Paul M. Secunda, District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO (March 22, 2010).
• Cyra Akila Choudhury, Globalizing the Margins: Legal Exiles in the War on Terror and Liberal Feminism’s War for Muslim Women, (International Review of Constitutionalism, Vol. 9, No. 2, 2010).
• Mostapha Benhenda, For Muslim Minorities, it is Possible to Endorse Political Liberalism, But This is not Enough, (Journal of Islamic Law and Culture, Vol. 11, No. 2, May 2009).
• Andrew F. March, The Post-Legal Ethics of Tariq Ramadan: Persuasion and Performance in 'Radical Reform: Islamic Ethics and Liberation' (A Review Essay), (Middle East Law and Governance, Forthcoming).
• Ilan H. Fuchs, 'Sephardic' Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case , (Bar Ilan Univ. Pub Law Working Paper No. 02-10, Dec. 31, 2009).
• Francesco Alicino, Constitutionalism as a Peaceful "Site" of Religious Struggles, Global Jurist, Vol. 10 : Iss. 1 (Advances) (2010).
• Lourens Du Plessis, Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law , (Potchefstroom Electronic Law Journal, Vol. 12, No. 4, 2009).

From SmartCILP:

• E. Gregory Wallace, Justifying Religious Freedom: The Western Tradition, 114 Penn State Law Review 485-570 (2009).
• Shannon Gilreath, Not a Moral Issue: Same-Sex Marriage and Religious Liberty (Reviewing Same-Sex Marriage and Religious Liberty, edited by Douglas Laycock, Anthony R. Picarello, Jr. and Robin Fretwell Wilson), 2010 University of Illinois Law Review 205-223.
• Timothy D. Lytton, Framing Clergy Sexual Abuse as an Institutional Failure: How Tort Litigation Influences Media Coverage, 36 Wm. Mitchell Law Review 169-185 (2009).
• Jared Rubin, Social Insurance, Commitment, and the Origin of Law: Interest Bans in Early Christianity, [Abstract], 52 Journal of Law & Economics 761-777 (2009).
• Ofrit Liviatan, Judicial Activism and Religion-Based Tensions in India and Israel, 26 Arizona Journal of International & Comparative Law 583-621 (2009).
• Teri Dobbins Baxter, Private Oppression: How Laws that Protect Privacy Can Lead to Oppression, 58 University of Kansas Law Review 415-471 (2010).

Recent Prisoner Free Exercise Cases

In Howard v. Skolnik, (9th Cir., March 30, 2010), the 9th Circuit rejected a prisoner's free exercise claim based on two alleged incidents of interference with his fasting. However the court vacated summary judgment and remanded for further proceedings plaintiff's objection to the calcelling of Nation of Islam prayer services.

In Jones v. Bullard, 2010 U.S. Dist. LEXIS 27377 (ED MO, March 23, 2010), a Missouri federal magistrate judge concluded that a detainee's free exercise rights were not substantially burdened when he was at various times inadvertently offered a food tray containing pork, but was given an alternative when he objected.

In Guarneri v. Hazzard, 2010 U.S. Dist. LEXIS 26966 (ND NY, March 22, 2010), a New York federal district court held that an inmate's free exercise rights were not substantially burdened by refusal to provide him with a Catholic priest.

In Black v. Fischer, 2010 U.S. Dist LEXIS 27439 (ND NY, March 23, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 27356, Feb. 4, 2010) and held that defendants were entitled to qualified immunity in a damage action in which a former prisoner complained that his attempt to change religious designation while in prison was denied under a Department of Corrections policy that allowed inmates to change their religion only once every 12 months.

In Malik v. Ozmint, 2010 U.S. Dist. LEXIS 26397 (D SC, March 19, 2010), a South Carolina federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 26385, Feb. 16, 2010) and dismissed a claim by a Sunni Muslim prisoner that his rights under RLUIPA were violated by prison grooming polices that required him to wear short hear and be clean shaven.

In Ingram v. Hyland, 2010 U.S. Dist. LEXIS 25964 (ED WI, Feb. 26, 2010), a Wisconsin federal district court held that an inmate arguably states a free exercise and RLUIPA claim in objecting to an order that he and his wife (a criminal co-defendant) have no contact. Plaintiff argued that denial of contact for the reconciliation of marriage violates his religious beliefs.

In Greenup v. Gusman, 2010 U.S. Dist. LEXIS 29180 (ED LA, March 26, 2010), a Louisiana federal magistrate judge held that various of plaintiff's claims that his Islamic faith was not being accommodated were moot. His claim for mental anguish was barred by a federal statutory provision barring a prisoner from recovering damages for emotional injury unaccompanied by physical injury.

In Green v. Harry, 2010 U.S. Dist. LEXIS 30127 (WD MI, March 29, 2010), a Michigan federal district judge adopted the recommendation of a federal magistrate (2010 U.S. Dist. LEXIS 29767, Jan. 26, 2010) and rejected a Muslim plaintiff's complaints about non-pork items being placed next to pork items.

Unusual Free Exercise Assertion In FOIA Case Rejected

In Banks v. Department of Justice, (D DC, March 26, 2010), the D.C. federal district court found unpersuasive an unusual argument in a Freedom of Information Act case. Plaintiff, seeking various records about himself and others argued that "his religion, Thelema, mandates that he access the records to purge all the negative energy from his life in a religious ritual." Plaintiff, a Lakota Sioux Native American, sought the information from the U.S. Postal Inspection Service and the Federal Bureau of Prisons.

Muslim Tourists Scuffle With Police After Attempt To Pray In Former Mosque, Now A Cathedral

In Cordoba, Spain last Wednesday, security guards and police scuffled with a group of Muslim tourists from Austria who were visiting the Roman Catholic Mezquita Catedral-- a UNESCO World Heritage site. According to AP, the Great Mosque of Cordoba was built after the Moorish invasion of Spain in the 8th century, and the building was turned into a Catholic cathedral in 1236 when King Ferdinand captured Cordoba. Six or seven of the 120 Muslim tourists who entered the church began to pray. Security guards told them to stop, an argument ensued, and the National Police were called. Two of those praying got into a shoving match with officers and were arrested for disobeying and threatening law enforcement officers.

Church As Murder Location Amounts to Aggravating Circumstance In Sentencing

On Thursday, a Kansas judge sentenced Scott Roeder, convicted killer of abortion doctor George Tiller, to life in prison with no possibility of parole for 50 years. Yesterday's Topeka Capital-Journal points out that in imposing sentence, the judge concluded that the fact the murder was committed in a church was an aggravating circumstance. Kansas law lists as an aggravating circumstance the fact that "defendant committed the crime in an especially heinous, atrocious or cruel manner." Judge Warren Wilbert said that a church is supposed to be a place of peace and tranquility. During sentencing, defendant Roeder responded that he didn't consider the building a church because its congregants did not hold Tiller accountable for performing abortions. He called it a "synagogue of Satan." (See prior related posting.)

Court Finds That Church Trustee Breached Duty In Conveying Property

In Garmon v. Reynolds, (IN App., March 31, 2010), an Indiana appellate court resolved a dispute over whether the son of the founding pastor of the Zion Temple Apostolic Church validly conveyed certain parcels of church property to a privately held trust. The appellate court agreed with the trial court that while Kenneth Garmon is the sole surviving trustee of Church, he breached his fiduciary duty when he voluntarily left Church to attend a different church for nearly a year after his father's death, and attempted to convey the disputed property to a privately-held trust corporation over which the congregation would have no control. The court also rejected the claim that the First Amendment precluded it from asserting jurisdiction. In its view, the case did not concern extensive ecclesiastical matters or require interpretation of church doctrines.

Catholic High School Fails To Show Substantial Free Exercise Burden From Zoning Denial

Academy of Our Lady of Peace v. City of San Diego, 2010 U.S. Dist. LEXIS 31873 (SD CA, April 1, 2010), is a RLUIPA and a 1st and 14th Amendment challenge by a Catholic college-preparatory high school to San Diego's refusal to issue zoning permits so the school can add a classroom building and parking structure to its campus. A California federal district court refused to grant summary judgment to the school, holding that it had failed to come forward with evidence that a substantial burden had been placed on its religious exercise.

President Obama Marks Easter and Passover

President Obama's Weekly Address today (full text and video recording) focused on Passover and Easter. He said in part:

This is a week of faithful celebration. On Monday and Tuesday nights, Jewish families and friends in the United States and around the world gathered for a Seder to commemorate the Exodus from Egypt and the triumph of hope and perseverance over injustice and oppression. On Sunday, my family will join other Christians all over the world in marking the resurrection of Jesus Christ.

And while we worship in different ways, we also remember the shared spirit of humanity that inhabits us all – Jews and Christians, Muslims and Hindus, believers and nonbelievers alike.

Amid the storm of public debate, with our 24/7 media cycle, in a town like Washington that’s consumed with the day-to-day, it can sometimes be easy to lose sight of the eternal. So, on this Easter weekend, let us hold fast to those aspirations we hold in common as brothers and sisters, as members of the same family – the family of man.

On Thursday night, Obama hosted a Seder dinner in the Old Family Dining Room of the White House for some friends, White House employees, and their families. In an article last month, the New York Times traced the background of this event which began with an improvised Seder in April 2008 during the Presidential campaign.

The Obama family will join a D.C. congregation for Easter services tomorrow, according to the Washington Post. However the White House has not disclosed the identity of the church in an attempt to not attract onlookers who would disturb the services.

UPDATE: The D.C. congregation at which the Obama's worshiped for Easter was Allen Chapel AME Church in Southeast Washington. (Afro, 4/5).

Annual White House Easter Egg Roll Will Add Healthful Events

This year's annual White House Easter Egg Roll will be held Monday, April 5. BWW reports today that the event will build on the First Lady's campaign against childhood obesity. In addition to the traditional Easter egg hunt and roll, the event will feature sports zones, activities built around the White House kitchen garden, and an instructional dance center. Music acts and story time readers will have their performances broadcast live on the Internet.

Malaysian Court's Caning Sentence Commuted By Sultan, Over Objections of Muslim Lawyers' Group

In a widely publicized decision last year, a Shariah court in Malaysia imposed a sentence of caning on Kartika Sari Dewi Shukarno who was found drinking beer at a hotel bar. (See prior posting 1, 2.) Today's Malaysian Insider reports that the sentence has now been commuted by the Sultan of Pahang, who is also head of Islam in the Malaysian state. He ordered her to instead perform 3 weeks community service at a children's home. However the Malaysian Muslim Lawyer's Association is disputing the commutation, saying that it may not be in accordance with Islamic law.

8th Circuit Holds Temp Agency Could Enforce No-Headwear Rule of Employer

In EEOC v. Kelly Services, Inc., (8th Cir., March 25, 2010), the 8th Circuit rejected charges that Kelly, a temp agency, discriminated against Asthma Suliman, a Muslim woman, when it refused to refer her to a job at a printing plant because she insisted on wearing a khimar. The employer, Nathan Printing, prohibited wearing of loose clothing or headwear because of the danger that it could become tangled in printing machinery. According to the court, the EEOC failed to prove that there was an available position at the printing plant to which Kelly could have referred Suliman. Even if there was, Kelly showed a legitimate, non-discriminatory reason for failing to refer Suliman. Title VII does not require that an employment agency being sued for religious discrimination also prove that the employer to which it would be referring a worker would suffer an undue hardship if it were to accommodate the worker's religious needs. [Thanks to Steven H. Sholk for the lead.]

California Supreme Court Rejects Krsihna Challenge To Airport Anti-Solicitation Ordinance

In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (CA Sup. Ct., March 25, 2010), the California Supreme Court concluded that a city ordinance prohibiting individuals from soliciting funds at Los Angeles International Airport is a reasonable time, place and manner restriction that does not violate the California constitution. In so holding, the majority also refused to answer a question referred to it by the 9th Circuit-- whether the airport is a public forum. (See prior posting.) The long-running case involves activity by Krishna adherents to practice sankirtan-- approaching people in public to proselytize, solicit donations, sell and distribute literature and disseminate information. Two concurring opinions reached the public forum issue, but came out on opposite sides of it.

EEOC Sues Lowes For Failing To Accommodate Sunday Sabbath Observer

The EEOC announced earlier this week that it has filed suit against Lowe's Home Centers alleging that Lowe's failed to accommodate the needs of a Baptist employee who had religious objections to working on Sundays. The suit seeks to have the employee (now on part-time status) reinstated as a full time employee with accommodations for his religious beliefs. It also asks for back pay and damages, and an injunction requiring Lowe's to provide reasonable accommodation for sincerely held religious beliefs.

Claim By Hasidic Jews That Challenge To Zoning Was Pretext For Discrimination Is Dismissed

Mosdos Chofets Chaim, Inc. v. Village of Wesley Hills, (SD NY, March 31, 2010), is the latest in a series of legal maneuvers involving tension between several New York villages and the Orthodox and Hasidic Jewish families moving in increasing numbers to Ramapo (NY) and areas around it in Rockland County. In prior cases, plaintiffs claimed that discriminatory zoning by villages were an attempt to exclude Orthodox and Hasidic Jews. This suit grows out of an alleged attempt by several nearby villages to block a proposed revision in Ramapo's zoning law that was designed to accommodate the need of the Orthodox and Hasidic community.

In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes. In the current lawsuit, Orthodox and Hasidic plaintiffs claim that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. The court concluded that the Noerr-Pennington doctrine and the First Amendment right to petition bar plaintiffs from maintaining a civil rights action against defendants when defendants merely petitioned the courts. However the lawsuit was dismissed without prejudice giving plaintiffs an opportunity to refile to seek to defeat defendants' qualified immunity.

Gospel Tracts In Form of $1M Bills Do Not Violate Counterfeiting Laws

Darrel Rundus' Great News Network is a Christian evangelizing organization. Its most successful Gospel tract is one made to look like U.S. currency in the form of a $1 million dollar bill (a denomination of currency not issued by the United States). On the reverse of the bill is an inscription that includes: "The million dollar question. Will you go to heaven!" In Rundus v. United States, (ND TX, March 30, 2010), a Texas federal district court held that the Gospel tract does not violate U.S. counterfeiting laws (18 USC 474 and 475) because it neither poses a risk of fraud nor does it pose a risk of facilitating would-be counterfeiters. The court went on to hold that Secret Service agents violated the 4th Amendment in 2006 by seizing the million dollar bills from GNN's offices without a warrant or valid consent. It ordered return of the seized property. Liberty Counsel yesterday issued a press release announcing the decision. (See prior related posting.)

Christian Counseling Student's Discrimination Claim Survives Motions To Dismiss

In Ward v. Members of the Board of Control of Eastern Michigan University, 2010 U.S. Dist. LEXIS 27861 (ED MI, March 24, 2010), a Michigan federal district court denied defendants' motions to dismiss a lawsuit brought by a graduate student in Eastern Michigan University's counseling program who was dismissed from the program after, in a Practicum, she refused to counsel a client on a homosexual relationship. The lawsuit alleges that plaintiff's expression and free exercise rights, as well as her due process and equal protection rights, were infringed because of disagreement with her Christian beliefs regarding homosexuality.

Israel's Supreme Court Says Muslim Prisoners Not Entitled To Bread During Passover

According to YNet News, last week a 3-judge panel of Israel's Supreme Court ruled that the government is not obligated to serve Muslim prison inmates fresh bread during Passover. In a 2-1 decision, the court ruled that for both practical and religious reasons, serving of leavened products in prison facilities where both Jewish and Arab prisoners live together is not required during Passover. In facilities housing only Arab prisoners, inmates are furnished leavened products ahead of Passover which they can use all week. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Cert. Filed In School's Ban of Religious Music In Holiday Concerts

On Monday, a petition for certiorari (full text) was filed in Stratechuck v. Board of Education, South Orange- Maplewood School District. In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) A press release on the filing was issued by the Thomas More Law Center.

Lawsuit Challenges Health Care Bill on Free Exercise Grounds

Last week, moments after President Obama signed the health care reform bill, the Thomas More Law Center filed suit on behalf of itself and four individuals challenging the constitutionality of the new law on a number of grounds including a claim that it violates plaintiffs' free exercise rights. (Press release.) The complaint (full text) in Thomas More Law Center v. Obama, (ED MI, filed 3/23/2010) alleges in part that plaintiffs are:

being forced to contribute to the funding of abortion, which, according to their deeply held religious beliefs and convictions, is a grave moral disorder since it is the deliberate killing of an innocent human being....

According to the teaching of the Catholic Church, abortion is a crime which no
human law can legitimize. Consequently, there is no obligation in conscience to obey such a law; instead, there is a grave and clear obligation to oppose such laws by conscientious objection.

Catholic Church Challenges Baltimore Ordinance Regulating Pregnancy Counseling Centers

According to the Baltimore (MD) Sun, the Archdiocese of Baltimore has filed a federal lawsuit challenging the constitutionality of a Baltimore ordinance that requires pregnancy counseling centers to post signs (in English and Spanish) informing clients that they do not refer women for abortion or birth control. Proponents of the law say it assures that women have accurate health information. The lawsuit claims that the law violates First Amendment expression and religion rights of church members.

NY High Court: Hate Crime Law Can Apply To Property Offenses

In People v. Assi, (NY Ct. App., March 30, 2010), New York's high court held that New York's Hate Crimes Act of 2000 can cover religiously-motivated property crimes, as well as crimes against persons. Defendant in the case admitted to attempting to fire bomb a synagogue to protest the shooting of a Palestinian child by the Israeli Army. Today's Riverdale Press reports on the decision.

Subsidized Housing Project Attacked on Establishment Clause Grounds

The Washington Post last week reported that opposition to a government subsidized affordable housing project in Arlington County, Virginia has turned into a church-state argument. To find space for housing near the suburban D.C Metro station, the county will pay subsidies to a developer who will build apartments over the First Baptist Church of Clarendon. A non-profit group bought air rights over the church last year. A new sanctuary will also be constructed, and the church and housing project will share an entrance, lobby and elevator. Opponents argue that the subsidies are really a way to bail out a church that is in financial difficulty. A federal district court will hear arguments tomorrow on a motion to dismiss the complaint that alleges Establishment Clause violations. [Thanks to Robert Tuttle for the lead.]

Taxpayers Have Standing To Challenge TVPA Grant To Catholic Bishops

In ACLU of Massachusetts v. Sebelius, (D MA, March 22, 2010), a Massachusetts federal district court held that taxpayers have standing to challenge a grant to the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. USCCP made grants to subcontractors, and specified in all of them that no referrals could be made for abortion services of contraceptive materials. In finding standing, the court said:

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB....

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

10th Circuit: No State RFRA Claim For Objectionable Autopsy

In Ross v. Board of Regents of the University of New Mexico, (10th Cir., March 23, 2010), the 10th Circuit Court of Appeals refused to permit family members to sue under New Mexico’s Religious Freedom Restoration Act challenging an autopsy performed on a San Carlos Apache man that allegedly violate his religious beliefs. The court concluded that decedent did not engage in an "act or refusal to act" that was substantially motivated by religious belief. Thus New Mexico RFRA's protection of free exercise of religion was not implicated. The court also rejected various other challenges to the autopsy

Supreme Court Denies Cert. In Religious Music Case Over Alito Dissent

Last week, the U.S. Supreme Court denied certiorari in Nurre v. Whitehead, (Docket No. 09-671, March 22, 2010). In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 ruling, held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. (See prior posting.) Justice Alito filed a rare dissent to the denial of review. He argued:

A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present because of the importance of theevent for the participating students. A decision with such potentially broad and troubling implications merits our review.

National Law Journal reported on the cert. denial.

Obama Announces Recess Appointments To EEOC

Last Saturday, the White House announced it intent to make 15 recess appointments to high level government positions. The nominations are currently stalled in the Senate. Four of the 15 are for the Equal Employment Opportunity Commission: Jacqueline A. Berrien for EEOC Chair; Chai R. Feldblum for EEOC Commissioner; Victoria A. Lipnic for EEOC Commissioner; and P. David Lopez for General Counsel of the EEOC. As recess appointees, these individuals will hold office until the end of the Senate's session in 2011. (CRS background.) However their names will remain before the Senate for confirmation for the full terms of their offices. The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

Recent Prisoner Free Exercise Cases

In Clark v. Small, 2010 U.S. Dist. LEXIS 23731 (SD CA, March 15, 2010), a California federal district court permitted an inmate to proceed with his claim that he was not permitted to celebrate Ramadan, but dismissed his equal protection and due process challenges.

In Hartmann v. California Department of Corrections and Rehabilitation, 2010 U.S. Dist. LEXIS 23848 (ED CA, March 15, 2010), a California federal magistrate judge concluded that inmates failed to state a claim against the California State Personnel Board in connection with their complaint that no Wiccan prison chaplains were hired for their facility.

In Jackson v. Boucaud, 2010 U.S. Dist. LEXIS 23760 (SD GA, March 15, 2010), a Georgia federal district court accepted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125893, Dec. 31, 2009) and dismissed an inmate's claims that his rights were infringed when he was not permitted to borrow in inter-library loan a copy of The Bible Code. He failed to allege how denial of the book infringed his sincerely held religious beliefs.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 23898 (WD VA, March 16, 2010), a Virginia federal magistrate judge permitted an inmate to proceed with challenges under RLUIPA and the due process clause to confiscation of religious materials of the Nation of Gods and Earths (also known as the Five Percent Nation of Islam).

In Boles v. Newth, 2009 U.S. Dist. LEXIS 126028 (D CO, Nov. 13, 2009), a Colorado federal magistrate judge concluded that damage to an inmate's religious objects and religious books did not create a meaningful burden on his practice of religion.

In Borzych v. Frank, 2010 U.S. Dist. LEXIS 25194 (WD WI, March 17, 2010), a Wisconsin federal district judge rejected an inmate's claim that his First and Fourteenth Amendment rights, and his rights under RLUIPA, were violated by a prison policy that prohibits practitioners of Odinism from having runes.

In McChesney v. Hogan, 2010 U.S. Dist. LEXIS 25717 (ND NY, March 18, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25705, Feb. 26, 2010), and permitted a civilly committed offender who is an atheist,to proceed on a claim for injunctive relief, but not for damages, on his complaint that material used in the sexual offender treatment program were premised on religious principles.

In Damron v. Sims, 2010 U.S. Dist. LEXIS 25166 (SD OH, March 17, 2010), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25158, Jan. 27, 2010) and dismissed claims by prisoners who were Christian Separatists that they have been denied in various ways the free exercise of their religion. The court held that plaintiffs pointed only to general policies and failed to allege particular instances in which their rights were infringed.

In Brown v. Michigan Department of Corrections, 2010 U.S. Dist. LEXIS 25396 (ED MI, March 18, 2010), a Michigan federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 126067, Oct. 28, 2009) and rejected both on statute of limitations grounds and on the merits an inmate's argument that his free exercise rights were violated when he was not permitted to talk about his religious beliefs during the Assaultive Offender Program.

In Anderson v. Craven, 2010 U.S. Dist. LEXIS 25140 (D ID, March 16, 2010), an Idaho federal district court refused to dismiss an inmate's claim that his rights were violated when, as a condition of parole, he was forced to attend the Therapeutic Community program which, allegedly, is religion based.

In Funzie v. Little, 2010 U.S. Dist. LEXIS 25771 (MD TN, March 18, 2010, a Tennessee federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 25768, Jan. 12, 2010) and dismissed plaintiff's objections to the seizure and screening of his religious materials by the security threat group.

Church Claims It Was Misled Into Not Applying For Tax Exemption

Knox News yesterday reported that a church in Knoxville, Tennessee is making an unusual argument in an attempt to avoid $53,000 in back taxes that it did not realize it owed. Tennessee law gives a church three years to apply for a property tax exemption when it replaces its previously exempt property with new property. New Covenant Baptist Church bought new property and began to occupy it as a church in 2005. It thought its previous property was exempt since it never received a tax bill. However in fact the county wrongly omitted its previous property from the tax rolls because the church had never properly applied for an exemption. In In re New Covenant Baptist Church, Inc., (TN Bd. Equal., Feb. 26, 2010), the Tennessee Board of Equalization concluded that the church was not entitled to the grace period for its new property because its previous property was not in fact exempt. In a letter to the Knox County Commission and a draft legal complaint, the church argues that the fault lies with the Knox County Tax Assessor who misled the Church into assuming that its prior property was exempt. The church obtained an exemption beginning Nov. 2006, but its taxes for the two prior years remain at issue.

Church Synod Sued After Ordering Changes In College's Board

According to last Thursday's Christian Post, one lawsuit has been dropped, but a second is still pending after the General Synod of the Associate Reformed Presbyterian Church removed the board of trustees and installed an interim board at Erskine College in Due West, South Carolina. Christianity Today last week reported on the March 3 meeting of the General Synod which acted on a March 2 Report of Moderator's Commission that recommended reducing the size of the college's Board from 34 (plus 23 advisory members) to 16. A Preliminary Report issued in February found numerous problems as the college searches for a new president. Among the findings were: "A significant majority of the professors interviewed had no understanding of how the Christian faith could be meaningfully integrated into their discipline."

All of this led to a lawsuit being filed against the General Synod by Scott Mitchell who is the chairman of both the old board that was removed and of the new interim board that was appointed. It alleged that the General Synod violated Erskine's charter and bylaws in the action it took. The court issued a temporary restraining order barring a change in the bylaws to reduce the size of the board. (Columbia (SC) The State.) However now at the direction of Erskine's executive committee, Mitchell has withdrawn his lawsuit. However a second lawsuit filed by the Alumni Association and three trustees is still pending.

UPDATE: On April 9, a state court judge issued a preliminary injunction in the Alumni Association's suit, freezing the status quo while the litigation is pending. (Erskine College Press Release.)

China Imposes New Financial Audit Rules On Religious Institutions

According to AsiaNews.it last week, China's State Religious Affairs Administration has issued new rules requiring all religious institutions to file audited annual financial reports. The agency said the rules are designed to help the government supervise finances and prevent embezzlement and misappropriation of funds from the country's 130,000 religious institutions. Religious organizations are seen as public institutions under Chinese law.

Court Upholds Rights of Evangelists To Leaflet At Catholic Parish Festival

Teesdale v. City of Chicago, (ND IL, March 17, 2010), is a suit by Garfield Ridge Baptist Church and five of its members who were prevented by police acting as security guards from handing out religious tracts, and from using a megaphone, at a Festival being held (with a city permit) by a Catholic parish on parish grounds and surrounding streets. The court held that it was a violation of plaintiff's clearly established rights to prevent them from leafleting, and that a question of fact remained as to whether preventing them from using a megaphone was reasonable. The court also refused to dismiss the false arrest claim by one of the plaintiffs who was arrested for trespassing. The court however did dismiss plaintiffs equal protection claims and their claims under the Illinois Religious Freedom Restoration Act. Preventing them from distributing literature on one afternoon at one place did not constitute a substantial burden on their religious exercise. Finally the court held that plaintiffs can proceed against the city itself only for equitable relief. Plaintiffs' attorneys issued a press release on the decision.

House Committee Holds Hearing On Outreach To Muslim Communities To Foil Terrorism

On March 17, the U.S. House of Representatives Committee on Homeland Security held hearings on Working with Communities to Disrupt Terror Plots. The full text of statements of the Chair and of six witnesses, as well as a video recording of the hearing, is available on the Committee's website. Witnesses focused largely on how to create relationships with American Muslim communities.

Appeal Filed By Intervenors Challenging Consent Decree On Religion In Schools

The Pensacola (FL) News-Journal reports that an appeal has been filed with the U.S. 11th Circuit Court of Appeals in Minor Doe I v. School Board for Santa Rosa County, Florida. In the case, a federal district court in February rejected an attempt by the Christian Educators Association International, representing teachers, to intervene to seek a modification of a consent decree under which the Santa Rosa County school board was enjoined from various activities that promoted religion in school classrooms and at school events. (See prior posting.)

New Head of al-Azhar Appointed In Egypt

Trade Arabia reports that on Friday, Egyptian President Hosni Mubarak appointed Sheikh
Ahmed El-Tayeb as the head of al-Azhar to succeed Sheikh Mohamed Sayed Tantawi who died on March 10. (See prior posting.) Al-Azhar is Egypt's most prestigious institution of Islamic learning, and one of the preeminent centers of Sunni learning in the world. Sheikh El-Tayeb has been head of al-Azhar University since 2003. In a 2004 interview he stressed the importance of teaching about the diversity of the Islamic heritage and of opening channels of communication with European countries. El-Tayeb's new position places him as the leader of the entire al-Azhar, which includes educational institutions throughout Egypt.

Pope Sends Pastoral Letter To Irish Catholics Addressing Clergy Sexual Abuse

Vatican Radio reports that Pope Benedict XVI today sent a Pastor Letter to all Catholics in Ireland apologizing for the sexual abuse of young people by Catholic clergy, and for the way in which the matter was handled by local clergy and religious superiors. Last May, a special government commission released a lengthy report on abuse at Catholic institutions in Ireland from 1936 to the present. (See prior posting.) The Pope's letter (full text) charged Irish bishops with "grave errors of judgment" and "failures of leadership." According to BBC News, groups representing victims of abuse have a mixed reaction to the Pope's letter, with some believing that Irish Cardinal Sean Brady should resign because of his reported role in the cover up of abuse charges. Others, however, pointing to the passage in the letter instructing bishops and religious superiors to "cooperate with civil authorities in their area of competence," say this means the Pope believes that those guilty of sexual abuse should face criminal prosecution.

Court Rejects Street Preachers' Challenge To Permit Ordinance

In Bethel v. City of Montgomery, 2010 U.S. Dist. LEXIS 24949 (MD AL, March 2, 2010), two street preachers challenged the requirement imposed by Montgomery, Alabama that they obtain a permit before preaching on public streets. A federal magistrate judge rejected their facial challenge to the ordinance, concluding it is a neutral time, place and manner restriction that is permissible under the First Amendment. The magistrate judge also rejected plaintiffs' equal protection and Fourth Amendment claims, recommending that the complaint be dismissed.

Suit Over School Rules That Banned Pro-Life T-Shirt Is Settled

Alliance Defense Fund on Wednesday announced the settlement of a lawsuit challenging the policies of a Pennsylvania school district under which a middle school student was told to remove a pro-life T-shirt which carried the message: "Abortion is not Healthcare." (See prior posting.) The Notice of Voluntary Dismissal in E.B. v. West Shore School District, (MD PA, filed 3/17/2010), says that the school district has revised it policy on school expression to eliminate a provision that allowed officials to ban expression that seeks to establish the supremacy of a particular religious denomination or viewpoint. The school district also revised its dress and grooming policy to eliminate a a ban on clothing that creates a hostile educational environment or displays discriminatory bias or animus.

Council Considering Policy on Proclamations for Religious Holidays

In North Miami Beach, Florida, city council's multicultural committee submitted recommendations Tuesday for a council policy on issuing proclamations recognizing religious holidays. Yesterday's Miami Herald reports that under the proposal, council would issue an official proclamation for only one holiday for each religion. The report generated some controversy however because it provides that proclamations should be issued fairly, for holidays of "all legal recognized religions." Committee chairman, Thomas Pinder, says this means no proclamations should be issued for religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship. The report calls for a subcommittee to identify the various religions practiced by North Miami Beach residents, and for it to specify the one main holiday that should be recognized by the council for each of the religions.

Belgian Court Suspends Ban On Islamic Headscarves

Yesterday, Belgium's Council of State suspended a ban on Islamic headscarves that had been imposed on Muslim school girls in the Dutch-speaking region of Flanders. Earth Times reports that the Flanders regional educational council imposed the ban last year after teachers complained that some parents were forcing their daughters to wear the headscarves against their will. In ruling on a challenge to the order, the Council of State said it is not clear whether the educational council had the authority to issue the ban. The Council of State referred to the Constitutional Court the question of whether action by the Flemish Parliament was required before the ban could be imposed.

EEOC Gets Consent Decree In Suit Charging Anti-Semitic Harassment

On Wednesday, the Equal Employment Opportunity Commission announced the filing of a consent decree in a lawsuit against Administaff, a company that provides human resource services for small and medium size businesses. The company will pay $115,000 in damages to settle allegations that two brothers employed by the company were subjected to harsh anti-Semitic harassment by managers and co-workers. For example, one of the brothers was forced into a trash bin for the amusement of managers in an activity they called "throw the Jew in the dumpster." (See prior posting.) The consent decree also enjoins Administaff from engaging in religious harassment or retaliation. The company will revise its policies, post non-discrimination notices, and train its managers on anti-discrimination laws. [Thanks to Michael Lieberman for the lead.]

Episcopal Church Wins Title To Property of Break-Away Connectiuct Parish

A Connecticut trial court ruled this week that the real and personal property of Bishop Seabury Episcopal Church in Groton, Connecticut, belongs to the Diocese of Connecticut and the Episcopal Church. Episcopal Life reports on the March 15 decision. In 2007, the congregation's former rector and some parish members broke away from the Episcopal Church and affiliated with the more conservative Convocation of Anglicans in North America.

Quebec Presses Government-Funded Day Cares To Be Secular

Wednesday's Canadian Jewish News reports on the confusion in the province of Quebec over a new ban on teaching of religion at publicly funded day cares for young children. Pressed by Parti Québécois, Quebec Families Minister Tony Tomassi's issued a statement on March 10 requiring day cares to be secular. He said that 20 day cares in Quebec were known to be including improper religious content. This was followed up by a unanimous National Assembly motion confirming Tomassi's announcement. However, two days later, in a meeting with Jewish community representatives, Tomassi said that so far as he could tell, Jewish day cares are in compliance with the requirement. Tomassi has not made clear whether day cares are merely prohibited from instilling religious beliefs, or whether they are also banned from holding holiday celebrations or having religious symbols in the classroom. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Catholic Bishops, Nuns Split Over Health Care Bill

Groups within the Catholic Church in the United States have taken sharply opposing views on pending health care legislation. Yesterday's Boston Globe called the split between U.S. Conference of Catholic Bishops and leaders of the major Catholic women's religious orders "a rare public disagreement that will reverberate among the nation's 70 million Catholics." In a statement issued Monday, the Bishops said:

The status quo in federal abortion policy, as reflected in the Hyde Amendment, excludes abortion from all health insurance plans receiving federal subsidies. In the Senate bill, there is the provision that only one of the proposed multi-state plans will not cover elective abortions – all other plans (including other multi-state plans) can do so, and receive federal tax credits. This means that individuals or families in complex medical circumstances will likely be forced to choose and contribute to an insurance plan that funds abortions in order to meet their particular health needs.

Further, the Senate bill authorizes and appropriates billions of dollars in new funding outside the scope of the appropriations bills covered by the Hyde amendment and similar provisions.... Additionally, no provision in the Senate bill incorporates the longstanding and widely supported protection for conscience regarding abortion as found in the Hyde/Weldon amendment. Moreover, neither the House nor Senate bill contains meaningful conscience protection outside the abortion context. Any final bill, to be fair to all, must retain the accommodation of the full range of religious and moral objections in the provision of health insurance and services that are contained in current law, for both individuals and institutions.

This analysis of the flaws in the legislation is not completely shared by the leaders of the Catholic Health Association. They believe, moreover, that the defects that they do recognize can be corrected after the passage of the final bill. The bishops, however, judge that the flaws are so fundamental that they vitiate the good that the bill intends to promote. Assurances that the moral objections to the legislation can be met only after the bill is passed seem a little like asking us, in Midwestern parlance, to buy a pig in a poke.

A letter supporting the bill from the heads of women's religious orders representing 59,000 nuns was sent yesterday to all members of Congress. It says in part:

The health care bill that has been passed by the Senate and that will be voted on by the House will expand coverage to over 30 million uninsured Americans. While it is an imperfect measure, it is a crucial next step in realizing health care for all. It will invest in preventative care. It will bar insurers from denying coverage based on pre-existing conditions. It will make crucial investments in community health centers that largely serve poor women and children. And despite false claims to the contrary, the Senate bill will not provide taxpayer funding for elective abortions. It will uphold longstanding conscience protections and it will make historic new investments – $250 million – in support of pregnant women. This is the REAL pro-life stance, and we as Catholics are all for it.

As the bishops's statement indicates, the Catholic Health Association, representing Catholic hospitals and health care systems, has also urged passage of the current bill in a letter sent to members of the House of Representatives last week.

UPDATE: Taking issue with the letter from the heads of numerous women's religious orders, the Council of Major Superiors of Women Religious issued a statement on Thursday backing the Bishops' opposition to the pending health care bill. [Thanks to Aaron Cole for the lead.]

Britiain Moves To Strengthen Voice of Faith-Based Groups In Government

In Britain, Communities Secretary John Denham yesterday announced a series of steps to help faith groups have their voices heard by government. The Department of Communities and Local Government has set up a £1 million Faith Leadership in Government Fund. National faith-based organizations are invited to bid for grants to strengthen their capacity to engage and challenge government. A £50,000 Innovation in Faith-Based Social Action Prize has been created to call attention to innovative faith-based projects. Finally the Department has released a 3-page paper countering some of the common myths about faith-based funding. The British Humanist Association released a statement criticizing these developments, arguing that "faith groups already enjoy a privileged voice in the ear of government." [Thanks to Scott Mange for the lead.]

Senate Defeats Attempt To Reauthorize D.C. School Voucher Program

Yesterday, by a vote of 42-55, the U.S. Senate defeated an amendment to the Federal Aviation Administration bill that would have reauthorized the District of Columbia's Opportunity Scholarship program. The amendment was proposed by Sen. Joseph Lieberman. (Congressional Record debate.) Last March, in the budget bill, Congress provided that the Opportunity Scholarship school voucher program would end after the 2009-10 school year, unless reauthorized. (See prior posting.) More than half the students receiving scholarships use their vouchers at religious-- mostly Roman Catholic-- schools. In a press release applauding the Senate vote, American United executive director, Rev. Barry Lynn, said: "Not only has the program failed to boost achievement among its targeted population, it also has forced taxpayers to support religious schools against their will."

Priest's Salary Claim Dismissed As Requiring Interpretation of Canon Law

In Tarasi v. Jugis, (NC Ct. App., March 16, 2010), a North Carolina appellate court dismissed a claim by a Catholic priest that his Bishop violated the state's Wage and Hour Act by refusing to assign him to a congregation or pay him a salary, despite a direction from the Vatican to do so. The instructions from the Vatican called for the Bishop to provide the priest "with an adequate means of livelihood and the appropriate necessities as envisioned in canons 281 § 1 and 384 of the Code of Canon Law, and that which is established by Diocesan Particular law regarding the sustenance of clergy." The court held that the First Amendment precludes it from taking jurisdiction. Determining the amount of compensation to which plaintiff is entitled would require the court to interpret canon law.

Jewish Groups Want Title VI Interpreted To Cover Anti-Semitic Harassment of Students

Thirteen national Jewish organizations yesterday wrote to U.S. Secretary of Education Arne Duncan urging the Department's Office of Civil Rights (OCR) to interpret Title VI of the 1964 Civil Rights Act to protect Jewish students from anti-Semitic harassment. (Full text of letter.) Title VI prohibits discrimination on the basis of race, color or national origin by educational institutions that receive federal funds. However, Title VI does not mention religious discrimination.

In 2004, OCR said Title VI covers discrimination against Jewish students even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law. Subsequently OCR backed away from that interpretation, contending that it could investigate harassment motivated by a student's perceived Jewish ethnic origin, but not harassment because of a student's Jewish religious beliefs or practices. (See prior posting.) By July 2009, OCR had gone even further and apparently now takes the position that Title VI does not cover any kind of anti-Semitic harassment. In yesterday's letter, the Jewish groups wrote:

We urge you to review OCR's change in policy for enforcing Title VI. To Jewish students, the narrowed policy means that that they must endure a hostile educational environment because the law, while protecting other ethnic and racial groups, offers them no protection—even when intimidation or harassment is directed at them based on ethnic, as opposed to religious, identity. The government's message to campus perpetrators of anti-Semitic harassment, intimidation and discrimination is that they may continue to do what they are doing, because colleges and universities have no legal obligation to respond to their hateful conduct....

The letter also focused on the issue of when anti-Semitic harassment disguised as anti-Israel expression loses First Amendment protection:

[C]onduct that threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and benefit from their college experience is impaired should not be deemed unactionable simply because that conduct is couched as "anti-Israel" or "anti-Zionist." ... [H]arassment or intimidation that holds Jewish students responsible for the acts of other Jews, or of Israel, is better understood as ethnic or "national origin" discrimination than as religious discrimination.

An ADL press release announced the letter. [Thanks to Michael Lieberman for the lead.]

British Court Orders Commission To Consider Exemption For Catholic Adoption Agency

In Britain, Catholic Care, a Catholic adoption agency operating in South Yorkshire has won an appeal of a Charity Commission's refusal to grant it an exemption from the Equality Act (Sexual Orientation) Regulations 2007. Yesterday's Yorkshire Post reports that a High Court judge sitting in London has ordered the Charity Commission to review its determination. Catholic Care offers specialized adoption services, and is the last of the Catholic adoption agencies in Britain to continue the fight against regulations that would require them to allow adoptions by same-sex couples. Catholic agencies elsewhere in Britain have either stopped offering adoption services or have cut their ties with the Catholic Church in order to continue in business. [Thanks to Scott Mange for the lead.]

Free Exercise Claims of Muslim Parents Against Police Officials Dismissed

In Syed v. Hamady, 2010 U.S. Dist. LEXIS 23353 (ND IN, March 12, 2010), and Indiana federal district court dismissed claims by a Muslim couple against a police officer and a sheriff who they claimed violated their rights to free exercise of religion, free expression and freedom of assembly. The court also rejected defamation and infliction of emotional distress claims. The free exercise claim grew out of a statement made at a school board meeting by the police officer and others objecting to the fact that plaintiffs' children were given time to pray at school, while non-Muslim children were not. Other claims revolved around publicity of the fact that a van which picked up plaintiffs' children from school on one occasion had license plates that were on the FBI's terrorist watch list.

9th Circuit Defines Ministerial Exception For Employment Cases

In Alcazar v. Corporation of the Catholic Archbishop of Seattle, (9th Cir., March 16, 2010), the U.S. 9th Circuit Court of Appeals dismissed under the "ministerial exception" doctrine claims by two Catholic seminarians who alleged violations of Washington state's Minimum Wage Law. The two claimed that they were not paid required overtime wages while they served in a placement program as part of their preparation for the priesthood. The Court held that the religion clauses of the 1st Amendment compel a ministerial exception from neutral statutes that interfere with the church-clergy employment relationship. It also announced a test for determining whether an individual is a minister for purpose of the doctrine:

if a person (1) is employed by a religious institution, (2) was chosen for the position based "largely on religious criteria," and (3) performs some religious duties and responsibilities, that person is a "minister" for purposes of the ministerial exception.

[Thanks to Mark Scarberry via Religionlaw for the lead.]

Amicus and Party Briefs In Christian Legal Society Case All Now Available Online

All of the amicus briefs, as well as the briefs of the parties, have now been filed with the U.S. Supreme Court in Christian Legal Society Chapter v. Martinez. The full text of all the briefs are available online from the ABA's website: 22 amicus briefs support Petitioner; 12 support Respondent; and one is in support of neither party. In the case, which is scheduled for oral argument in the Supreme Court on April 19, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition.

Court Rejects Appeal, Decrying Trial Tactics, In Dispute Over Sikh Temple Board

Brar v. Sedey, (TX App., March 15, 2010), is a lawsuit in which Jasdeep Singh, a member of the board of directors of a non-profit corporation that operates a Sikh Temple, was removed from the board by a vote of fellow board members. Singh sued claiming his removal violated the Temple's bylaws. The trial court granted a temporary injunction finding it likely that Singh would prevail on the merits because less than two-thirds of the board members voted for his removal. Defendants then filed a motion for rehearing and argued the court lacked jurisdiction because deciding the case would unconstitutionally entangle the court in matters of church doctrine. Instead of waiting for a ruling on this jurisdictional defense, defendants appealed the temporary injunction. The court dismissed the appeal, criticizing defendants' litigation tactics. They could have gone to trial in the case 3 months before the appeal was argued, but they instead sought a continuance in order to obtain an interlocutory appellate ruling.

Suit Charges Wrongful Prosecution For Use of Annointing Oil In Courtroom

In Mt. Pleasant, Michigan, John C. Ridgeway has filed a lawsuit in state court against local police and prosecutors charging wrongful imprisonment, malicious prosecution, abuse of process and violation of First Amendment speech, free exercise and assembly rights. According to yesterday's Bay City Times, his lawsuit was filed after a jury acquitted him on charges of assaulting police and public officials. Those charges grew out of a misdemeanor traffic case in which Ridgeway represented himself. As the jury was about to deliver its verdict, Ridgeway took out a vial of oil, rubbed it on his fingertips and then on the defense table. He also insisted on shaking hands with an assistant prosecutor, the bailiff and the officer who had given him the traffic ticket. Soon after, all three suffered nausea, headaches, numbness and tingling. Ridgeway says he was using anointing oil-- virgin olive oil blessed by Pastor Pete Peters of the La Porte Church of Christ in La Porte, Colorado. The pastor urged his followers to use the oil to cast evil out of government buildings, including courthouses.

Morocco Deports Foreigners Living At Orphanage For Christian Proselytizing

Yesterday's Los Angeles Times reports that 16 foreign nationals who were part of the Village of Hope orphanage in the town of Ain Leuh were deported from Morocco last week for proselytizing. Apparently the charges were filed in part because the children at Village of Hope were reading Bible stories from a children's Bible. The 33 children at the orphanage were living in family units with different adult couples there. The government claims the foreigners exploited poverty-stricken families in order to convert their children to Christianity. Morocco's minister of communication, Khalid Naciri, said the country would "continue to take stern action against anyone who toys with the religious values" of the nation, whose official religion is Islam. Herman and Jellie Boonstra, a Dutch couple who lived at the orphanage had eight children in their care. Herman says that while the children were familiar with Christianity because they grew up with the Christian family, he did not intend to convert them.

Ireland To Hold Referendum On Blasphemy Provision In Constitution

Ireland's Justice Minister announced Sunday that the country will hold a referendum this fall on removing a blasphemy ban from the Constitution. Yesterday's London Guardian reports that the advocacy group Atheist Ireland particularly welcomed the announcement. When Ireland's new more lenient blasphemy law took effect in January, the group responded by publishing on its website 25 blasphemous statements from famous figures in history. (See prior posting.) Currently Ireland's Constitution (Sec. 40) requires that the country have a blasphemy law.

Town Will Change Law To Permit Small Churches To Meet In Residences

Responding to an appeal (full text) filed by the Alliance Defense Fund with the Board of Adjustment, the Gilbert, Arizona Town Council announced yesterday that it will move quickly to change the town's zoning code to permit small church groups to meet in individual homes. The Arizona Republic yesterday describes Council's statement as "extremely apologetic." The issue arose when Gilbert's zoning administrator upheld a cease-and-desist order issued to the Oasis of Truth Church. The administrator said that the church's religious services for 10 to 15 people on a rotating basis at the pastor's home constitute a "religious assembly" under the town zoning ordinance, and that Bible study, church leadership meetings and fellowship activities were "church-sponsored activities," all of which are prohibited in single-family residences. To show their concern over the order issued to Oasis of Truth, the town's mayor and acting town manager attended Sunday services there this past week end.

New Briefing Urges End To Bishops In House of Lords

The British Humanist Association yesterday released a new briefing paper titled Religious Representatives in the House of Lords. It argues:

The presence of Church of England in the House of Lords entrenches a privileged position for one particular branch of one particular religion that cannot be justified in today’s society, which is not only multi-faith but increasingly nonreligious.It is at odds with the aspiration of a more legitimate and representative second chamber and with recognition of a plural society.

According to BHA, a recent poll in Britain found that 74% of people think it is "wrong" for Bishops to be given an automatic seat in the Lords, and 48% say it is not important for Church of England Bishops to have seats at all. Community Newswire reports on the poll.

Swiss Muslims To Sue To Obtain Separate Cemeteries

World Radio Switzerland reported yesterday that the Conference of Islamic Organizations of Switzerland is planning to sue to require all Swiss cantons to create separate Muslim cemeteries. The move comes after a suburb of Bern refused to create a separate burial ground as require by Islamic law. The Muslim group says this violates their protected freedom of religion.

Israel Passes Civil Union Bill For Those With No Recognized Religion

Under Israeli law, marriage is handled by religious authorities of each recognized religious community-- Jewish, Christian, Muslim and Druze. Israel has had no civil marriage, though civil marriages performed in other countries are recognized. (Background.) Israel's Knesset yesterday by a vote of 56-4 passed a civil union bill that allows a man and woman both of whom have no religious affiliation to, for the first time, enter a civil union though a new marriage registrar bureau. The bill was introduced by the Israel Beiteinu party. The bill passed with the two major Jewish religious parties that are part of the governing coalition-- Shas and United Torah Judaism-- not voting because no agreement had been reached on a controversial companion bill on conversion. Today's Jerusalem Post and YNet News report on the complex situation. Opponents of the civil union bill are concerned that it would increase the power of the Chief Rabbinate by allowing it a say in whether a person in fact was not a member of a religious community. The bill will apply primarily to individuals who consider themselves to be Jewish, but who do not meet the Orthodox halachic criteria for being considered Jewish. Opponents are also concerned over how these civil unions will be recognized in other countries.

Two Religious Land Use Disputes In Northern New Jersey

In northern New Jersey, one land use dispute was settled while a lawsuit was filed in another. In Englewood (NJ), two lawsuits between the town and a neighborhood group over expansion of East Hill Synagogue and the synagogue's use of tents for events on its property have been settled. NorthJersey.com last week reported that neighbors objected to Planning Board decisions that allowed the synagogue to expand its seating for 123 to 225, and to put up tents in the parking lot 12 times per year. The neighborhood group argued, among other things, that some members of the Planning Board had conflicts of interest because they were members of a synagogue that was affiliated with East Hill. Under the settlement, tents can be put up six times per year, with various restrictions on timing and a ban on outdoor music.

Meanwhile, in Ridgefield Park (NJ), the owner of a 2-story building that houses a donut and an ice cream store have filed suit because the village Planning Board refuses to permit rental of a back office in the building to a church group, the Go Ahead Mission. According to NorthJersey.com yesterday, the building owner claims that the refusal to grant a variance is related to the fact that he is Korean.

Boiler Plate AG Endorsement of Church Property Sale Found Insufficient

A New York trial court has rejected the apparently routine method by which the state Attorney General's office gives its statutorily required consent to the sale of real property by non-profit religious corporations. The New York Religious Corporations Law, Sec. 12(a)(1), requires religious corporations to obtain court approval for sale, mortgage or lease of real property. The procedures for court approval, in Sec. 511 of the Not-For-Profit Corporation Law, call for the court to require at least 15 days notice to the attorney general. In Matter of The House of The Lord and Church On The Mount, Inc., (Sup. Ct. Kings Co., March 10, 2010), a church's ex parte petition to sell a property it owns for $595,000 was accompanied by a proposed order that included a rubber stamped and signed endorsement from the attorney general's office stating:

The Attorney General hereby appears herein, has no objection to the granting of judicial approval hereon, acknowledges receipt of statutory notice, and demands service of all papers submitted herein ... conditioned on submission of the matter to the court within 30 days hereafter....

An apparently puzzled court refused to grant the order, instead directing service on the Attorney General. The court explained that it "does not deem the pre-printed text and hand written entries to satisfy the notice requirements of N-PCL § 511(b). At the very least, the Court would require an affirmation or affidavit from someone with personal knowledge explaining the circumstance and the import of the text and signatures as it pertains to the notice requirements to the Attorney General."

Samoa To Look Into Freedom of Religion

Radio New Zealand reported yesterday that the government of Samoa has approved creating a Commission of Inquiry to review freedom of religion. The Cabinet set up the Commission because of concern that new religions advocating beliefs contrary to Christianity may arrive in the country.

Some Non-Muslims Use Britain's Muslim Arbitration Tribunal

Yesterday's London Times reports that 20 non-Muslims used Britain's Muslim Arbitration Tribunal (MAT) to resolve their legal disputes last year. This is a 15% increase over the prior year. The MAT operates under Britain's Arbitration Act. Meanwhile, the One Law for All Campaign has 22,000 signatures on a petition in opposition to religious tribunals of any sort operating in Britain.

Recent Articles of Interest

From SSRN:

• Alice Ristroph & Melissa E. Murray, Disestablishing the Family, (Yale Law Journal, Forthcoming).
• Noa Ben-Asher, Legal Holes, (Ubound, Vol. 5, No. 1, 2009).
• Olatunde C. Johnson, The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence, (February 12, 2010).

From SmartCILP and elsewhere:

• Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon, 51 William & Mary Law Review 1053-1111 (2009).
• Ronan McCrea, Religion as a Basis of Law in the Public Order of the European Union, 16 Columbia Journal of European Law 81-119 (2009/2010).
• Alan C. Lazerow, Give and "Get"? Applying the Restatement of Contracts to Determine the Enforceability of "Get Settlement" Contracts, 39 Baltimore Law Review 103 (2009).

Religious Group Lacks Standing To Sue For-Profit Board For Breach of Duty

The Eugene, Oregon Register-Guard reported yesterday on a state trial court decision denying standing to the religious non-profit organization Sikh Dharma International in its lawsuit against the head of the for-profit natural foods company, Golden Temple, and three members of the Unto Infinity board. Unto Infinity was charged with overseeing the businesses operated by the Sikh spiritual community created by Yogi Bhajan. Golden Temple has 330 employees in Oregon, 100 in Europe, and annual revenues of $125 million. The lawsuit charges that defendants are breaching their fiduciary duties through enriching themselves at the expense of the community's assets. Still pending before the court is the question of whether individual Sikh ministers who are members of Sikh Dharma International have standing to pursue the claims separate from the organization. The court is expected to issue its preliminary views on that issue before a scheduled May hearing.

Recent Prisoner Free Exercise Cases

In Redd v. Wright, (2d Cir., March 9, 2010), the 2nd Circuit Court of Appeals upheld the granting of qualified immunity to prison officials who placed a "TB hold" (cell lock down) on an inmate after he refused on religious grounds to submit to a TB test.

In Aldin v. Brink, 2010 U.S. Dist. LEXIS 20204 (SD IL, March 5, 2010), an Illinois federal district court permitted a Muslim prisoner to move ahead with his retaliation and free exercise claims. Plaintiff claimed he was not permitted to say his Friday prayers in the prison chapel and was threatened by other inmates when he attempted to pray elsewhere. He claims he was denied the opportunity to participate in Ramadan, and denied prayer rugs and a Qur'an. He also alleged retaliation for a prior complaint about religious accommodation.

In Candelaria v. Baker, 2010 U.S. Dist. LEXIS 19870 (WD NY, March 5, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 19981, Feb. 9, 2010), and rejected a free exercise claim by an inmate who, as a dialysis patient, was prescribed a special renal diet. The inmate insisted on fasting in fulfillment of a religious vow. Excessive fasting makes the diet ineffective, and officials insisted that he stop his fasting practices in order to receive the diet. The court also rejected a claim that a misbehavior report was a result of the inmate exercising his religious beliefs regard his hairstyle.

In Curry v. California Department of Corrections & Rehabilitation, 2010 U.S. Dist. LEXIS 20798 (ND CA, Feb. 10, 2010), a California federal district court held that an inmate who practices the Shetaut Neter faith (an Ancient African Religion) could proceed with his RLUIPA, Free Exercise, Establishment Clause and Equal Protection claims. He alleged that authorities denied him a religiously required vegan diet and incense oils for religious rituals.

In Indreland v. Bell, 2010 U.S. Dist. LEXIS 20618 (D MT, Jan. 12, 2010), a Montana federal magistrate judge recommended dismissal of an inmate's claims that he was denied his Satanist medallion, the detention center staff placed Christian greeting cards under his cell door, and he was held in maximum security due to his religious beliefs. The court reserved judgment pending further briefing on his claim that he was denied access to a Satanic Bible.

In Johnson v. DeRose, 2010 U.S. Dist. LEXIS 21337 (MD PA, March 9, 2010), a Pennsylvania federal district court allowed an inmate to proceed on a claim that his free exercise rights were violated by denial of a Bible and denial of access to Mass.

In Black v. Camon, 2010 U.S. Dist. LEXIS 21259 (MD GA, March 9, 2010), a Georgia federal district court adopted a federal magistrate's recommendation (2010 U.S. Dist. LEXIS 21258, Feb. 9, 2010) and dismissed an inmate's claim that he was forced to attend a Christmas ceremony that included Christian prayer and a religious sermon.

In Brown v. Vail, 2010 U.S. Dist. LEXIS 20997 (ED WA, Feb. 19, 2010), a Washington federal magistrate judge refused to order a state prison to supply a Passover Seder box for an indigent Jewish prisoner. The prison allowed inmates to purchase Seder boxes or to have them donated by religious organizations.

In Comundoiwilla v. Evans, 2010 U.S. Dist. LEXIS 21884 (ED CA, Feb. 22, 2010), a California federal magistrate judge permitted a Muslim inmate to proceed with a claim under RLUIPA challenging restrictions on his wearing a beard and long hair. Plaintiff was permitted to file an amended complaint alleging he was prevented from attending Jum'ah prayer services.

In Cranford v. Hammock, 2010 U.S. Dist. LEXIS 22554 (ND FL, March 11, 2010), a Florida federal district court dismissed claims by a Muslim inmate who alleged that Jum'ah services were cancelled on one occasion, that when he complained the chaplain cancelled Taleem study classes and stopped making the chapel available for day prayers. Defendants say the changes were instituted because of a lack of staffing.

In Moro v. Winsor, 2010 U.S. Dist. LEXIS 22611 (SD IL, March 10, 2010), an Illinois federal magistrate judge denied an inmate's motion for a new trial in a case that he lost challenging prison practices. Plaintiff, a practitioner of the Ordo Templi Orientis, claimed he was denied access to religious items and books, worship services and the ability to celebrate feasts. The court approved of jury instructions that required the jury to find plaintiff had a sincere religious belief and finding that defendants' wrongful conduct was the proximate cause of plaintiff's injury.

In Rogers v. United States, 2010 U.S. Dist. LEXIS 21918 (WD PA, March 10, 2010), a Pennsylvania federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 22474, Feb. 9, 2010) and refused to dismiss plaintiff's free exercise and equal protection claims growing out of the alleged denial of Halal meat in celebration of Eid-ul-Adha in January 2006. A number of other claims were dismissed.

In Foster v. Berry, 2010 U.S. Dist. LEXIS 22383 (CD CA, March 9, 2010), a California federal district court accepted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 22388, Jan. 21, 2010), and dismissed an inmate's free exercise and RLUIPA claims when he merely alleged that defendants did not let him "go to his religion."