RLUIPA Lawsuit Challenges Delay In Formal Zoning Variance Denial

A RLUIPA lawsuit was filed last week against the Borough of Pemberton, New Jersey by the Apostolic Church of Deliverance that applied for a zoning variance over six months ago. According to a press release yesterday from Mauck & Baker, the law firm which filed the suit, Borough officials have clearly indicated that they will deny the application from the largely African-American church. However Pemberton continues to withhold publication of a formal zoning decision. Pemberton officials have instead urged the church to rent a local elementary school to use for worship services. The lawsuit seeks over $1 million in compensatory damages plus $1 million in punitive damages.

Syria Becomes First Muslim Country To Impose A Burqa Ban

Britain's Daily Star today reports that Syria has become the first predominately Muslim country to ban the wearing of the burqa in public. The ban will initially apply only in universities. The government ordered universities to ban niqab-wearing women from registering. However the government plans to extend the ban on wearing the full face veil to other places as well. Syria's government says that the Burqa encourages Islamic extremism. The ban does not apply to wearing of the hijab, or headscarf. Opponents of the ban say it violates freedom of religion and demonizes Muslims.

Evangelicals Are Backing Obama's Call For Immigration Reform

Today's New York Times reports that a group of influential Christian evangelical leaders are supporting President Obama's call for comprehensive immigration reform. The umbrella group, the National Association of Evangelicals, is in the lead. While these Christian conservatives are usually on the other side on most of President Obama's policies, here they agree with him and are openly supporting him through sermons, conference calls with other pastors, and Congressional testimony. Politically active Hispanic evangelical pastors are largely responsible for convincing other evangelical clergy that immigration reform should be a moral priority. (See prior related posting.)

New Holy See Permanent Observer To UN Named

Zenit reported yesterday that Pope Benedict XVI has named Indian-born Archbishop Francis Assisi Chullikatt, apostolic nuncio to Iraq and Jordan, as the new permanent observer of the Holy See at the United Nations in New York. He succeeds Archbishop Celestino Migliore.

GI's Who Oppose Homosexuality Beginning To Look At CO Status As DADT To End

The New York Times reported last week that the impending end of the military's "don't ask, don't tell" policy is creating a new group of putative conscientious objectors. The Center on Conscience & War, which counsels GI's seeking to become conscientious objectors, has begun to receive calls from members of the military who say they consider homosexuality an abomination and want to become a conscientious objector because they cannot serve alongside gay soldiers. J.E. McNeil, the Center's director, says that this sort of objection does not fit within the legal requirements to become a CO. That requires religious opposition to participating in war in any form. (50 USC App Sec. 456(j)). The military personnel here are not objecting to participating in war; they are objecting to those with whom they are participating.

Oklahoma's November Ballot Will Include Constituitonal Amendment To Bar Courts' Use of Sharia Law

Yesterday's Tulsa World reports that Oklahoma's Nov. 2 ballot will include State Question 755 which would amend the state constitution to prohibit state courts from considering or using international law or Sharia law. (Ballot language.) Titled by the legislature the "Save Our State Amendment" (full text of HJR 1056), the proposed amendment reads:

The courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law. The provisions of this subsection shall apply to all cases before the respective courts, including, but not limited to, cases of first impression.

State Rep. Rex Duncan who authored the proposal called it a pre-emptive strike since he is not aware of any Oklahoma case based on international or Sharia law. Razi Hashmi, executive director of the Oklahoma chapter of the Council on American-Islamic Relations, said the proposal is motivated by anti-Muslim bigotry.

Amicus Briefs In Snyder v. Phelps Now Filed With Supreme Court

Last week, the remainder of the amicus briefs in Snyder v. Phelps were filed with the U.S. Supreme Court. (Links to Briefs from SCOTUS Wiki, plus additional amicus brief not linked there.) In the case, the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder violated their free speech rights. (See prior posting.) Fifteen amicus briefs have been filed-- 5 supporting Matthew Snyder's family, 7 supporting Westboro Church's rights, and 3 in support of neither party. Yesterday's York (PA) Daily Record reports on why the 7 groups supported Westboro even though they strongly disagreed with the substance of its message.

Sweden's New Education Law Restricts Confessional Schools and Home Schooling

Yesterday's Washington Times reports that a new education law enacted in Sweden last month will limit both home schooling and religious practices in "Confessional schools." The aim of the new law is to make schools across Sweden more uniform in offering a comprehensive and objective education. Home schooling will be banned other than in exceptional circumstances such as health reasons of distance from a school. The law also requires Sweden's religious schools to follow the same curriculum as secular schools and requires them to make all religious activities, including prayer and chapel services, optional. It is expected that families will challenge the new law in Swedish and European courts.

Recent Articles and Books of Interest

From SmartCILP & elsewhere:

• Michael L. Gompertz, Lawsuit Challenges Income Tax Preferences for Clergy, Tax Notes, July 5, 2010, pp. 81-94.
• Adam J. MacLeod, A Non-Fatal Collision: Interpreting RLUIPA Where Religious Land Uses and Community Interests Meet, [Abstract], 42 Urban Lawyer 41-93 (2010).
• Roederick C. White, Sr., How the Wheels Come Off: The Inevitable Crash of Irreconcilable Jurisprudence Laws Based On Orthodox Judeo-Christian Theology in a Pluralistic Society, 37 Southern University Law Review 127-183 (2009).
• Symposium. Intelligent Design and the Constitution. Articles by Patrick T. Gillen, Jay D. Wexler, Francis J. Beckwith, Elias Carr, Peter M.J. Hess, Russell F. Pannier, Thomas D. Sullivan, Casey Luskin, Joshua Rosenau and David K. DeWolf. 4 University of St. Thomas Journal of Law & Public Policy 1-353 (2009).

New Books:

• Jeffrey Ostler, The Lakotas and the Black Hills: The Struggle for Sacred Ground, (Penguin Library of American Indian History, July 2010).
• Hubert Wolf, Pope and Devil: The Vatican's Archives and the Third Reich, (Harvard Univ. Press, May 2010).
• Halyna Hryn, Churches and States: Studies on the History of Christianity in Ukraine, (Harvard Univ. Press, Sept. 2010).
• Mark Valeri, Heavenly Merchandize: How Religion Shaped Commerce in Puritan America, (Princeton Univ. Press, July 2010).

Recent Prisoner Free Exercise Cases

In Farrow v. Wrenn, 2010 U.S. Dist. LEXIS 70813 (D NH, July 14, 2010), a New Hampshre federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 68507, June 9, 2010), and allowed a Native American inmate to proceed with official capacity claims asserting 1st Amendment and RLUIPA violations. Plaintiff was not able to fully practice his Lakota religion because he needed weekly access to smudging herbs, the pipe, knicknick, and tobacco, and an opportunity to practice drumming.

In Swetokos v. Allen, 2010 U.S. Dist. LEXIS 68429 (SD FL, July 8, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 68450, June 7, 2010), and dismissed a complaint by a Buddhist (who was now out of jail) that he was denied a vegan diet. Authorities refused to provide the religious diet until the inmate documented his religious affiliation.

In Hamlin v. Smith, 2010 U.S. Dist. LEXIS 69205 (D CO, July 12, 2010) a Colorado federal magistrate judge dismissed 1st Amendment and RLUIPA claims by a Wiccan inmate. Plaintiff claimed that the prison failed to post notices of Wiccan services, that he was denied ritual tools and supplies, that the Wiccan group was forced to meet outside in cold weather, and that he feared retaliation for practicing his religion.

In Washington v. Brown, 2010 U.S. Dist. LEXIS 68986 (ED CA, July 10, 2010), a California federal magistrate judge recommended that a Muslim inmate be permitted to go to trial on his claim that his rights under the 1st Amendment and RLUIPA were violated when he was prevented for over two weeks in 2004 from participating in the Ramadan fast.

In Kindred v. Department of Mental Health, 2010 U.S. Dist. LEXIS 68851 (ED CA, June 17, 2010), a California federal magistrate judge ruled that a civil detainee may move ahead with his free exercise and RLUIPA claims that he did not have access to a Protestant chaplain, that a spiritual book of his was destroyed and that he was denied a prayer rug.

In Cain v. Caruso, 2010 U.S. Dist. LEXIS 70136 (ED MI, July 13, 2010), a Michigan federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 69873, May 24, 2010) and dismissed a parolee's complaint that he was required to attend a religious-based substance abuse program as a condition of his parole. The court held that plaintiff's parole agent had absolute immunity for the testimony at plaintiff's parole proceeding. More broadly the court found no Establishment Clause violation because plaintiff was offered a secular alternative when authorities learned of his objections. Plaintiff refused it because of its distance from his home.

In Hunter v. Knapp, 2010 U.S. Dist. LEXIS 70328 (SD IL, July 13, 2010), an Illinois federal district court dismissed plaintiff's claims that while detained in jail, there were only Christian services and not Muslim ones, and that the jail did not allow inmates in segregation to worship with inmates from general population. The court held that plaintiff's religious beliefs were accommodated.

In Tucker v. Johnson, 2010 U.S. Dist. LEXIS 71249 (ND MS, July 15, 2010), a Mississippi federal district court rejected plaintiff's complaint that while in protective custody in jail, that plaintiff had requested, he was kept in his cell while other prisoners were at Sunday worship services.

In Sowemimo v. Bader, 2010 U.S. Dist. LEXIS 71181 (SD IL, July 15, 2010), an Illinois federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 71135, May 11, 2010) and dismissed for failure to exhaust administrative remedies plaintiff's claim that his prayer rug was confiscate, he was denied access to Islamic chapel services, and was not provided with post-fast meals during Ramadan.

Anti-Abortion Picketers Rights Violated When Ordrered To Put Down Graphic Signs

In Lefemine v. Davis, 2010 U.S. Dist. LEXIS 68725 (D SC, July 8, 2010), a South Carolina federal district court enjoined Greenwood County (SC) sheriff officials from imposing content-based restrictions on graphic anti-abortion depictions on signs carried by a Christian anti-abortion group. When the group picketed at the busiest intersection in the county, law enforcement officials ordered them to put down the signs because they were disturbing to young people. The court concluded that this amounted to a content-based restriction that was not narrowly tailored to further the compelling interest of protecting children. It therefore violated the free speech and assembly rights as well as the free exercise rights of the picketers from Columbia Christians for Life.

Court Says Mother's Religious Practices Inadmissible In Custody Dispute

Applying the rule that "a parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive [a] parent of custody unless there is a showing of actual harm to the health or welfare of the child," a Kansas appellate court, in a 2-1 decision, has rejected a Muslim father's objections to granting of residential custody to his son's mother because of her practices as a Jehovah's Witness. In Harrison v. Tauheed, (KS Ct. App., July 16, 2010), Adiel Tauheed (who never married Monica Harrison, the mother of J.D.H.) argued that Monica's beliefs regarding blood transfusions threatened J.D.H.'s welfare in the future. He also argued that Monica's door-to-door proselytizing with J.D.H. was injurious to his welfare; that Jehovah's Witnesses refusal to celebrate birthdays, various holidays and salute the flag has led to social alienation; and that teachings regarding non-Jehovah's Witnesses are leading to parental alienation.

Judge Caplinger dissented, arguing that the trial court "erroneously concluded it could not consider factors relating to a parent's religious practices, even if those practices adversely impacted the child's interests."

Nevada Senate Candidate Sees Her Run As Religious Mission

Today's Las Vegas Sun describes the strong religious element in the U.S. Senate campaign of Republican Sharron Angle, who is seeking to unseat Senate majority leader Harry Reid. Angle has described her efforts as a calling from God. Angle also believes that religion should play a much more expansive role in government. The Sun article claims her views parallel those of Christian Reconstructionism.

Ministerial Exception Applied To Dismiss Prof's Racial Discrimination Claims

In Adams v. Indiana Wesleyan University, 2010 U.S. Dist. LEXIS 71403 (ND Ind., July 15, 2010), an Indiana federal district court applied the ministerial exception to dismiss a Title VII racial discrimination claim filed against a religiously-sponsored university by a former faculty member. Janice B. Adams, an African-American, was employed by Indiana Wesleyan University for 17 years as a Professor and Chair of the Social Work Department. The University describes itself on its website as "an evangelical Christian comprehensive university that is committed to liberal arts and professional education." Adams, who often clashed with her supervisor, claims she was subjected to severe and pervasive racial discrimination that led to her resignation. In dismissing her claim, the court said:

[W]hile Adams may very well have been free to present and discuss secular topics and issues in her classroom, it is also true that she was charged with incorporating the doctrine of the Wesleyan Church into her curriculum.... The fact that she claims she was forced to resign as a result of pervasive racial harassment as opposed to any sort of doctrinal or theological dispute does not take this case outside the parameters of the ministerial exception.

Scholar's Report Outlines To Canadian Court The Harms of Polygamy

As previously reported, in the Canadian provice of British Columbia the attorney general is asking the B.C. Supreme Court to rule on whether the province's anti-polygamy law is consistent with the Charter of Rights and Freedoms. Today's Vancouver Sun reports that a 45-page research paper by Canadian scholar Joseph Henrich has been filed with the court. The report concludes that polygamy increases crime, prostitution and anti-social behavior, increases inequality between men and women, results in less parental investment in children and in a general driving down of the age of marriage for all women.

Sikh Temple Must Be Removed For Violation of Restrictive Covenant

In Bollier v. Austin Gurdwara Sahib, Inc., (TX App., July 9, 2010), a Texas appellate court held that building of a Sikh Temple violated a subdivision's restrictive covenant that limited land use to single family dwellings. The Temple originally operated from a mobile home, but a new $150,000 building was constructed after the trial court rejected a challenge to it. The Court of Appeals reversed the trial court and remanded ordering entry of a permanent injunction barring construction of and ordering removal of the newly constructed Temple. Punjab Newsline Network today reports on the decision, saying that Sikhs are "shocked and outraged" at the order requiring the only Sikh temple in Austin, Texas be torn down.

India Party Leader To Appear On Charges of Depicting Herself As Goddess Durga

The Times of India today reports that a court in the city of Muzaffarpur has ordered India National Congress Party leader Sonia Gandhi to appear on charges that she hurt religious sentiments by depicting herself as the goddess Durga on a party poster in 2007. Two other Party officials have also been ordered to appear in court the same day. A similar complaint has already been dismissed by another court in 2008.

Bus Driver Sues After Being Fired For Refusing To Take Women To Planned Parenthood

Yesterday's Austin American-Statesman reports that a former bus driver has filed suit in federal court in Austin, Texas against the Capital Area Rural Transportation System claiming religious discrimination in employment. The bus system provides pickup on request for residents in rural areas. Driver Edwin Graning, who is also an ordained Christian minister, was fired after he refused to transport two women to a Planned Parenthood clinic because he thought he might be taking them to have an abortion. Graning claims CARTS had an obligation to accommodate his religious beliefs opposing abortion.

Group Calls For Painting To Be Removed From Show At Sacramento Law Library

The Sacramento (CA) Public Law Library is hosting an art show sponsored by California Lawyers for the Arts. According to today's Sacramento Bee, the 63-piece display, titled "A Creative Merger II: Justice and Peace," has generated complaints from the Pacific Justice Institute which says that a multi-media piece, "Moral Values", is anti-Christian. It shows a Bible with a label across the cover reading "Warning! May Impair Judgment." PJI is calling for removal of the painting, saying: "The purpose of the message is to directly attack and demean the foundation of the Christian faith. If this had been another faith, there would be outrage." The same artist also has two other entries in the show-- about the Middle East and Bosnia-- that are admittedly anti-religious.

DC Appellate Court Upholds Refusal To Allow Initiative On Defining Marriage

In Jackson v. District of Columbia Board of Elections and Ethics, (DC Ct. App., July 15, 2010), D.C.'s highest appellate court [corrected], in a 5-4 decision, upheld the Board of Elections and Ethics refusal to accept a petition seeking an initiative vote on a proposed amendment to D.C. statutes to bar the recognition of same sex marriages. The majority concluded:

The Council acted within its authority under the CAA [Charter Amendment Act] and the Home Rule Act in enacting the Human Rights safeguard of the IPA [Initiative Procedures Act] and in directing the Board not to accept initiatives that contravene that safeguard. Because appellants' proposed initiative would authorize, or have the effect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not a proper subject of initiative. Therefore, the Board acted lawfully in refusing to accept the initiative on that basis.

A dissenting of 4 judges opinion argued that D.C City Council exceeded its authority when it imposed the "Human Rights Act limitation" on the right of initiative. [See prior related posting.]

Vatican Issues New Document on "Grave Delicts"

AP reports that the Vatican yesterday issued a new set of guidelines on handling of clergy sexual abuse claims and other "grave delicts." The document (full text) mostly codifies present practice. It extends the statute of limitations to 20 years, and provides for a possible extension beyond that on a case by case basis. It includes child pornography as well as sexual abuse as a grave crime. Critics were unhappy with the new document because it does not address the obligation of bishops to report abuse to civil authorities, does not provide for punishment of those who cover up abuse, and does not include a "one strike and you are out" policy. The document also classifies the ordination of women as a grave crime, subject to the same procedures as sex abuse claims, and also covers canonical crimes such as desecrating the Eucharist, violating the seal of the confessional, apostasy, heresy and schism.

10th Circuit: Ministerial Exception Covers Hostile Work Environment and Equal Pay Act Claims

In Skrzypczak v. Roman Catholic Diocese of Tulsa, (10th Cir., July 13, 2010), the 10th Circuit applied the "ministerial exception" to dismiss gender and age discrimination claims brought by the director of the Department of Religious Formation of the Tulsa Diocese. The court held that the ministerial exception doctrine applies to hostile work environment claims against a church brought under Title VII as well as to Equal Pay Act claims. [Thanks to Steven H. Sholk for the lead.]

Texas Survey Shows Dissatisfaction With State School Board Curriculum Battles

Texas Freedom Network on Tuesday released the results of a state-wide survey conducted in May that showed most Texans want an end to the divisive curriculum battles that have been a part of the operations of the Texas State Board of Education. (See prior posting.) 72% of likely voters want teachers and scholars, not politicians, to be responsible for writing curriculum standards. 68% of those surveyed say that separation of church and state is a key constitutional principle, but 49% want religion to have more influence in public schools. 55% oppose publicly funded vouchers that permit students to attend private religious schools. Wall of Separation also reports on the survey.

Court Rejects Religious Challenge To Social Security Numbers

In Hill v. Promise Hospital of Phoenix, Inc., 2010 U.S. Dist. LEXIS 68884 (D AZ, July 7, 2010), an Arizona federal district court rejected plaintiff's complaints about federal laws that require him to provide a potential employer with a social security number. He says that defendant hospital refused to hire him because he would not comply with that requirement. Plaintiff claims that a social security number is an asset of a state-sponsored religion in violation of the Establishment Clause, and that a social security number is the "mark of the beast," the forced use of which violates his right to privacy. In the lawsuit, plaintiff sought to enjoin the federal government from enforcing the laws that require use of a social security number. The court dismissed those claims on sovereign immunity grounds. Insofar as they were based on a religious discrimination claim under Title VII of the 1964 Civil Rights Act, the court found that the federal government's actions did not interfere with plaintiff's employment opportunities. Also plaintiff failed to sue within 90 days after receiving a right to sue letter from the EEOC. Additionally the court concluded that granting relief would involve the interfering with the collection of taxes in violation of the federal Anti-Injunction Act.

Church Leader's Conviction For Simulating Legal Process Is Upheld

In Runningwolf v. State of Texas, (TX App., July 12, 2010), a Texas state appellate court upheld the conviction of Michael Runningwolf for "simulating legal process." Runningwolf, who headed a local church, delivered a document styled "Non-Statutory Abatement" to Helen Coleman who had been awarded custody of three children, one of whom was her grandchild and another of whom was a great nephew. Other relatives, who belonged to Runningwolf's church, disliked the fact that Coleman had custody. The 10-page long Abatement was an attempt to undermine the state's custody order and convince those receiving it to submit the issue of custody to an ecclesiastical court in Texas. The court held that the evidence supported the conviction. The court also rejected the argument that the court lacked jurisdiction because the case involved internal church affairs. The court dismissed that claim because the person receiving the Abatement was not a member of Runningwolf's church.

Spainish Archbishop Says New Abortion Law Should Be Defied

In Spain, Catholic Archbishop Francisco Gil Hellin of Burgos has called for civil disobedience to defy the country's new abortion law that took effect this month. According to CNA yesterday, Hellin said in a letter:

Let’s be clear: this law is not a law, although it is presented as such by some politicians and lawmakers. It is no law because nobody has the right to take the life of an innocent human being. For this reason it is not obligatory. Moreover, it demands direct opposition without distinction.

The new law allows abortion without restriction in the first 14 weeks of pregnancy, and allows 16 and 17 year olds to obtain an abortion without parental consent, though it requires parental notification. Suit has been filed in Spain's Constitutional Court to challenge the 14-week provision. (Yahoo! Health).

Justice Department Sues To Enjoin Fraudulent Church Tax Scheme

The U.S. Department of Justice announced yesterday that it has filed suit to enjoin a Utah man from continuing to operate a church-based tax fraud scheme. The civil complaint (full text) in United States v. Hartshorn, (D UT, filed 7/12/2010) was filed against Kevin Hartshorn, head of the Church of Compassionate Service. It alleges that Hartshorn tells its members that they can avoid federal income tax by becoming "ministers" of the church and taking a supposed vow of poverty. They transfer their property to the Church, but in fact the "ministers" maintain access to their funds. AP reports on the case.

Israeli Police Arrest, Release, Women's Rights Leader For Allegedly Reading Torah At Western Wall

Monday's Jerusalem Post reported that Israeli police released Anat Hoffman, the head of the Women of the Wall prayer group, after she was taken into custody on charges of violating a High Court ruling barring women from reading the Torah at the Western Wall in Jerusalem. Women of the Wall organizes women's prayer groups at the Wall each month on Rosh Hodesh (the beginning of the new month). Hoffman's supporters say she was not reading from the Torah, but only holding it-- which is permitted under the High Court ruling-- when Kotel Police tried to take the Torah from her. A statement by the Masorti (Conservative) Movement criticized the strictly Orthodox haredim for turning the Western Wall from a national monument into "a synagogue that is managed according to fundamentalist views." Under Orthodox views, only men may read from the Torah at worship services. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

French National Assembly Votes To Ban Burqa Anywhere In Public

The lower house of France's parliament, the National Assembly, yesterday passed a bill to outlaw the wearing of garments such as the niqab and burqa anywhere in public. BBC News reports that the ban on the full-face Islamic veil passed by a vote of 335-1 with with 221 members not voting. Many members of the opposition Socialist Party, who wanted the ban limited to public buildings, abstained rather than voting no under pressure from supporters of the bill. The Senate must also approve the bill before it becomes law. A vote is expected in September. Under the bill, women who wear a full-face veil will be fined up to 150 Euros ($188), while men who force their wives to wear a burqa face a fine of 30,000 Euros ($37,700) and one year in jail. Only around 2000 women in France wear the burqa, though many French Muslims oppose the new law. The Council of State says the new law may be unconstitutional. Meanwhile a French businessman, Rachid Nekkaz, who thinks the law is unconstitutional says he will set up a fund of 1 million Euros to help women who violate the law pay their fines.

Appeal To 9th Circuit Filed In Challenge To Religion At Community College

An appeal was filed with the 9th Circuit yesterday in Westphal v. Wagner, a federal lawsuit against California's South Orange County Community College District challenging the practice at Saddleback College in Mission Viejo of opening various sorts of official events-- some of them mandatory for students-- with prayers. (See prior posting.) In May, a federal district court denied a preliminary injunction against invocations at this year's graduation ceremonies. (See prior posting.) Plainitiffs' brief (full text) before the 9th Circuit argues that the district court incorrectly denied an injunction. Opposing Views reports on the appeal.

Prayer Over Co-Worker's Cubicle May Need To Be Accommodated Under Title VII

In Shatkin v. University of Texas at Arlington, 2010 U.S. Dist. LEXIS 68500 (ND TX, July 9, 2010), a Texas federal district court refused to dismiss a suit by two former development office employees at the University of Texas who were fired for praying over a fellow-employee's cubicle, and rubbing olive oil on the employee's metal doorway, in an after work-hours ceremony. The employees brought suit under Title VII of the 1964 Civil Rights Act alleging that the University failed to accommodate their need to pray over the cubicle. The two requested an accommodation as soon as they learned that their activities violated the University's property and anti-harassment policies. The court held that the employees did not need to inform the University of their need for an accommodation before they engaged in the prayer ceremony. (See prior related posting.)

Obama Statement Read At Srebrenica Genocide Commemoration

Last Sunday, the White House released a statement from President Obama (full text) marking the 15th anniversary of the genocide of 8000 Bosnian Muslim men and boys by Seb troops at Srebrenica. The President called the genocide "a stain on our collective conscience." CNN reports that a U.S. delegation read the President's statement at ceremonies in Bosnia-Herzegovina marking the anniversary. The ceremony included the burial of 775 more recently-identified genocide victims at the Centre Potocari, the official Srebrenica Genocide Memorial.

Suit Challenges Christian Prayer At Florida City Council Meetings

According to the Lakeland (FL) Ledger, Atheists of Florida yesterday filed a federal lawsuit against the city of Lakeland, challenging its practice of opening City Commission meetings with prayer. The complaint (full text) in Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, filed 7/12/2010), alleges that the city specifically seeks out Christian (almost exclusively Protestant) clergy to offer invocations during city commission meetings, with the purpose and effect of endorsing religion and creating excessive entanglement with religion. It seeks a declaratory judgment and injunction claiming that the practice violates the Establishment Clause of the federal and state constitutions, denies Equal Protection to non-believers and non-Christians, and compels those in attendance to express either agreement or opposition to government sponsored prayer by standing, bowing one's head or remaining seated.

Muslim Woman Sues NJ Hospital For Discrimination

WTVO News yesterday reported on a religious discrimination lawsuit filed by a New Jersey woman against the Somerset Medical Center in Somerville (NJ). Rona Mohammedi, a Muslim, came to the medical center in February with severe chest pains. When she was told she would need an electrocardiogram, for religious modesty requirements she asked for a woman to perform the test. Mohammedi claims that instead of treating her, the hospital left her in the Emergency Room for five hours until her husband requested a transfer. Hospital lawyers say Mohammedi left the facility against medical advice.

A Note To Religion Clause Readers

A wonderful thing about the blogosphere is that the physical location of blogger and readers is largely irrelevant. Nevertheless, a writer's geographical location can influence content in subtle ways. So I wanted to let Religion Clause readers know that I am now based in Atlanta, Georgia instead of Toledo, Ohio. I retain my University of Toledo emeritus connection, so in a sense I have feet in both north and south. --- HMF

Russian Organizers of Offending Art Show Convicted, Fined

In Russia today, two organizers of the 2007 Forbidden Art exhibit at the Sakharov Museum in Moscow were found guilty "committing acts aimed at inciting national hatred and strife," according to reports by BBC News and the Moscow News. Designed to display works of art that had been banned from major museums in 2006, the exhibit included several paintings of Jesus. In one, Jesus' disciples were depicted as Mickey Mouse; in another, the crucified Jesus' head was replaced by the Order of Lenin medal. Complaints over the exhibit were filed by the Russian Orthodox Church and an ultra-nationalist group. (See prior posting.) While the defendants faced possible prison sentences, they were instead merely fined. The Tagansky District Court fined Yury Samodurov, former head of the Sakharov Museum, 200,000 rubles ($6500), while contemporary art expert Andrei Yerofeyev was fined 150,000 rubles ($4870). Last month Yerofeyev wrote the Russian Orthodox Church apologizing for any unintentional offense cause to Christians by the show. Last week 13 prominent Russian artists had appealed to Russian President Dimitry Medvedev to stop the trial.

UPDATE: CBC News (7/19) reports that Samodurov and Yerofeyev plan to appeal their convictions to the Russian Supreme Court and, if unsuccessful there, to the European Court of Human Rights.

Adjunct Prof of Catholic Thought Fired Over E-Mail On Homosexuality and Natural Law

Fox News reported Friday that the University of Illinois, Champaign, has fired an adjunct professor who taught courses on Introduction to Catholicism and Modern Catholic Thought because of an e-mail he sent to a student explaining the Catholic position on homosexuality. The professor, Ken Howell, who also then lost his job at an on-campus Catholic center, was not renewed at the end of Spring Semester after a student complained that an e-mail Howell sent to his students preparing for exams amounted to hate speech. Howell wrote: "Natural Moral Law says that Morality must be a response to REALITY. In other words, sexual acts are only appropriate for people who are complementary, not the same." Howell has taught at the University for nine years. He says he makes it clear to his students that he believes the Church views he teaches, but that students will not be graded on the basis of whether they believe them. The University said that Howell's e-mail violates the University's standards of inclusivity.

Recent Articles Of Interest

From SSRN:

• David Gan-wing Cheng, Wisconsin v. Yoder: Respecting Children’s Rights and Why Yoder Would Soon Be Overturned, (July 7, 2010).
• Katherine Biber, Bad Holocaust Art, (Law Text, Vol.13, pp. 226-259, 2009).
• Samuel D. Brunson, Rethinking Public Charities and Political Speech, (Loyola University Chicago School of Law Research Paper No. 2010-002, April 7, 2010).

From SmartCILP:

• Irus Braverman, Planting the Promised Landscape: Zionism, Nature, and Resistance in Israel/Palestine, 49 Natural Resources Journal 317-365 (2009).
• Holmes Rolston III, Saving Creation: Faith Shaping Environmental Policy, 4 Harvard Law & Policy Review 121-148 (2010).

Economic Collusion Leads To Price Spike In Saudi Arabia Before Ramadan

Ramadan begins this year on Aug. 10. Zawya today reports that in Saudi Arabia, where the weeks preceding the holy month are a high shopping season, prices on foodstuffs-- especially imports-- are increasing sharply because or collusion by two companies. The two companies, taking advantage of favorable exchange rates, have bought up huge stocks of food items from the sole agent for many imported food products. They now monopolize local food distribution networks. Prices for essential commodities have risen 25% in recent weeks, and this could double by the time Ramadan begins.

Prayer At South Carolina County Council Meetings Becomes Controversial

Today's Spartanburg, South Carolina Herald Journal reports on the controversy over prayer at Spartanburg County Council meetings. The Council's chaplain-- Jerry Clevenger, a Sheriff's Office employee-- usually closes invocations by invoking Jesus' name. However, apparently the prayer policy provoked scrutiny when in March Councilman O'Neal Mintz filled in for the chaplain at one meeting and delivered a prayer condemning abortion and same-sex marriage. Now Unitarian minister Don Rollins is organizing a "silent protest" against opening meetings with Christian prayer, seeking to have prayers delivered by members of different faith communities. Council chairman Jeff Horton says that as a Christian he could not ask anyone not to pray in Jesus' name.

British Court Says Town Wrong In Suspending Foster Care License After Religious Conversion

In Britain, a High Court has forced the Council in the town of Gateshead to admit that it acted improperly in revoking the foster care license of a Christian woman. According to a release today by the Christian Institute, the Gateshead Council in 2008 deregistered the woman, who had been caring for foster children for ten years, preventing her from continuing to do so after a a 16-year old Muslim girl in her charge converted to Christianity. Lawyers for the woman argued that the Council's action failed to take account of the girl's freedom of religion. The license revocation has had a significant impact on the foster carer's financial situation.

Recent Prisoner Free Excercise Cases

In Penwell v. Holtgeerts, (9th Cir., July 7, 2010), the 9th Circuit remanded to the district court a claim that restrictions on an inmate's religious practice burdened his free exercise rights. The 9th Circuit had announced a new standard for determining this issue in another case subsequent to the district court's decision.

In Lewis v. Ryan, 2010 U.S. Dist. LEXIS 65258 (D AZ, June 9, 2010), an Arizona federal district court dismissed with leave to amend a prisoner's claim that his free exercise rights were violated when authorities denied his request for his retention funds to be used for a donation to a religious charity. He alleged his religion requires him to practice charity.

In Duran v. Patrick, 2010 U.S. Dist. LEXIS 65616 (D MA, June 30, 2010), a Massachusetts federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 65746, June 9, 2010) and dismissed for failure to exhaust administrative remedies an inmate's claim that a corrections officer destroyed and disposed of his religious articles to prevent him from practicing his Islamic faith.

In Taylor v. Pelican Bay, 2010 U.S. Dist. LEXIS 65996 (ND CA, July 1, 2010), a California federal district court rejected an inmate's claim that his free exercise rights were violated by a requirement that he identify his religion in order for the prison chaplain to verify his claim to need a religious diet. It also rejected his religious freedom claims based on occasional failures of his meal trays to include all items that should have been on the religious diet tray.

In Davis v. Flores, 2010 U.S. Dist. LEXIS 66691 (ED CA, July 1, 2010), a California federal district court refused to grant summary judgment to an inmate who complained that his rights under the free exercise clause and RLUIPA were violated by restrictions for a period of time on Muslim prisoners purchasing or possessing prayer oil and by suspension of religious services after the dismissal of a chaplain who had smuggled in contraband in prayer oil containers.

In Castle v. Hedgpeth, 2010 U.S. Dist. LEXIS 66514 (ED CA, June 30, 2010), a California federal magistrate judge recommended that an inmate be permitted to proceed with his challenge to enforcement of a prison regulation that prohibits Muslim inmates from purchasing or possessing prayer oil.

In Allen v. Jones, 2010 U.S. Dist. LEXIS 67207 (WD LA, July 6, 2010), a Louisiana federal district judge adopted the recommendations of a magistrate (2010 U.S. Dist. LEXIS 67247, May
7, 2010) and rejected plaintiff's claim that the Establishment Clause was violated by a policy that required inmates who left their cells during church call out to attend church services.

In Rider v. Yates, 2010 U.S. Dist. LEXIS 67612 (ED CA, June 15, 2010), a California federal magistrate judge permitted an inmate to move ahead with his claim that prison officials took a chalice that he had on a pagan altar in his cell, depriving him of the property in violation of his rights under the 1st Amendment and RLUIPA.

Suit Challenges Georgia Ban On Concealed Carry of Guns In Churches

Yesterday's Atlanta Journal Constitution reports that a gun rights group, its president, a Thomsaston (GA) Baptist church and its minister have filed suit in state court challenging Georgia's ban on carrying concealed weapons in churches. The complaint (full text) in Georgiacarry.org, Inc. v. State of Georgia, (GA Super. Ct., filed 7/7/2010), alleges that the ban interferes with the free exercise of religion by barring in places of worship activities generally permitted throughout the state. It also alleges that the ban infringes rights under the Second Amendment to the U.S. Constitution. The suit follows the U.S. Supreme Court's decision last month in McDonald v. Chicago, holding that the Second Amendment's individual right to keep and bear arms for self defense (subject to reasonable regulation) applies to the states as well as the federal government.

Commercial Use of Part of Religious High School Not Protected By RLUIPA

In New Life Worship Center v. Town of Smithfield Zoning Board of Review, 2010 R.I. Super. LEXIS 101 (RI Super. Ct., July 7, 2010), a Rhode Island trial court upheld the decision of a town zoning board to bar use of space in a high school operated by New Life Worship Center, a religious organization, for use as a commercial fitness center and dance studio. The court rejected New Life's claims under RLUIPA and Rhode Island's Religious Freedom Restoration Act that denial of a special use permit improperly created a substantial burden on the organization's exercise of religion. The court said in part:

The inability of New Life to operate the fitness center and dance studio as a commercial business to generate funds to support the parish and the building of the high school does not pose any significant pressure on the members of New Life. The members of the church are not being asked to conform their behavior in practicing their religion, nor are the religious activities of the church being compromised.... [T]he denial of the special use permit to protect the students of the high school from the regular entry into the building by members of the general public is a compelling governmental interest. The Zoning Board is not denying New Life the opportunity to practice ancillary activities on the property, but rather disallowing open access to the high school building in fear of the potential danger to the students.

Court Rules National Episcopal Church Entitled To Property of Break-Away Georgia Parish

In Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc., (GA Ct. App., July 8, 2010), a Georgia appellate court, applying neutral principles of civil law, held that the National Episcopal Church is entitled to the property of a local parish (Savannah's Christ Church) that disaffiliated and joined the more conservative Anglican Church of North America. The court concluded that Christ Church has made itself subject to the discipline and canons of the National Episcopal Church which impose a trust on parish property in favor of the National Episcopal Church and the Diocese of Georgia. The Savannah Morning News reported on the decision. [Thanks to John Chilton for the lead.]

5th Circuit: Texas RFRA Supports Long Braids In School For Native American Boy

In A.A. v. Needville Independent School District, (5th Cir., July 9, 2010), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that the Texas Religious Freedom Restoration Act protects the right of a Native American kindergartner to wear his hair in two long braids. The majority held that the school’s proposed alternatives that the boy either wear his hair in a single braid tucked into his shirt or in a bun on top of his head were insufficient and offend a sincere religious belief held by the boy and his family.

Judge Jolly dissenting argued that the only religious requirement the boy put forward was that he must be allowed to wear his hair uncut, and the alternatives proposed by the school allowed him to do so. The added requirement that his long hair be visible, argued Judge Jolly, was “confected” by the majority “entirely on its own.” (See prior related posting.) [Thanks to Eugene Volokh via Religionlaw for the lead.]

New Louisiana Law Gives Churches Option To Permit Concealed Carry of Handguns

ABP reports that on July 6 Louisiana Governor Bobby Jindal signed into law HB 1272 which repeals the total ban on carrying concealed handguns in churches and other houses of worship. Instead the new law which will take effect next month permits congregations to authorize those who hold valid concealed carry permits to bring their weapons into the church, synagogue or mosque. However the congregation must mandate an additional 8 hours of tactical training for anyone who will bring in a concealed handgun. The new law also provides that if the congregation authorizes concealed carry, the pastor, priest, minister or other authority must inform the congregation. This provision presumably has two interesting effects. First it requires that everyone in the congregation know that others may be armed. Second, because the law provides that the decision to permit concealed carry is to be made by the "entity which ... has authority over the administration of a church, synagogue or mosque," the law presumably requires that when a congregational board of trustees approves, a dissenting clergyman may not refuse to publicize the action.

Author Argues That Advocacy For Gay Rights Is A Religious Issue

While most of the public discussion of gay rights by religious leaders has come from those who believe the expansion of rights for same-sex couples threaten their religious liberty to oppose homosexual conduct, in the current issue of Tikkun Magazine, Jay Michaelson argues that support of LGBT rights is a religious mandate. His article Ten Reasons Why Gay Rights Is a Religious Issue, contends in part that "anti-gay forces are misrepresenting what the Hebrew Bible and the New Testament say, and thus distorting the word of God. This should be of concern to all religionists.... Gay rights is a religious issue because its use as a political wedge issue has distorted church teaching and politicized religion."

California Episcopal Diocese Sues Another Break-Away Parish

The Episcopal Diocese of San Joaquin, California, continues to file lawsuits to reclaim property of break-away parishes. Episcopal Life reported today that the diocese has filed suit in state court against St. Paul's Anglican Church in Visalia, one of the 40 congregations that broke away to affiliate with the more conservative Province of the Southern Cone. The break-away parish is now affiliated with the Anglican Church in North America. The suit was filed after parish members refused to negotiate a return of the properties to the Episcopal Church. The diocese has previously sued four other break-away parishes as well as former bishop, John-David Schofield. (See prior posting.).

Russian Art Museum Curators On Trial For Inciting Religious Hatred

In Russia, the trial of two curators of the Sakharov Museum is coming to an end, and defendants are facing a sentence of up to three years in prison on charges of inciting religious hatred. AP yesterday reported that the charges stem from a 2007 "Forbidden Art" exhibit designed to display works of art that had been banned from major museums in 2006. Among the works of art were several paintings of Jesus. In one, Jesus' disciples were depicted as Mickey Mouse; in another, the crucified Jesus' head was replaced by the Order of Lenin medal. The exhibit closed a few days after it opened when a group of altar boys defaced a number of paintings. The Russian Orthodox Church and religious ultra-nationalist groups pressed prosecutors to file charges against the curators.

Village May Not Charge For Legal Advice To Zoning Applicant

According to today's Hudson Valley Times Herald-Record, a New York state trial court judge has ruled that the village of South Blooming Grove (NY) may not charge a Hasidic Jewish group for legal advice given to it by the village's special counsel about the group's application for zoning approval for use of former resort property in the village. (See prior posting.) The village charged the group $13,000 for past advice, and required another $7500 to continue reviewing its site plan. The group wants to open a yeshiva on former Lake Anne resort property club house. The village opposes the move, arguing in a counter-suit that the resort property is improperly subdivided.

29 State AG's File Amicus Brief Supporting National Day of Prayer

Yesterday, 29 state attorneys general joined together in filing an amicus brief (full text) with the 7th Circuit urging it to find that the National Day of Prayer does not violate the Establishment Clause. In a press release, Texas Attorney General Greg Abbott who led the effort said that the district court decision striking down the Day of Prayer statute (see prior posting) also threatens Memorial Day because federal law requests the President to issue a proclamation each year calling on people to use the day to pray for peace. The brief argues that private prayer contemplated by the National Day of Prayer statute is less intrusive than public prayers routinely offered by each branch of the federal government and that there is a long history of prayer proclamations in this country, both at the federal and state levels.

UPDATE: On July 8, sixty-seven members of the US House of Representatives also filed an amicus brief (full text) seeking reversal of the trial court's decision. (ACLJ Release.)

Massachusetts Federal District Court Strikes Down DOMA

In two companion cases today, a Massachusetts federal district judge held Section 3 of the federal Defense of Marriage Act (1 USC Sec. 7) unconstitutional. That section provides that in interpreting any federal statute or regulation, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Gill v. Office of Personnel Management, (D MA, July 8, 2010), is a suit brought by same-sex couples and survivors of deceased same-sex spouses who were denied various federal marriage-based benefits available to heterosexual couples. The court held that DOMA violates the equal protection clause. It held that it need not decide whether to apply strict scrutiny because the statute lacks a rational basis to support it. In the court's view: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves."

Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, July 8, 2010), was brought by Massachusetts-- which recognizes same-sex marriage-- contending that DOMA violates the 10th Amendment by intruding on areas of exclusive state authority. It also argued that the law exceeds Congress' Spending Clause powers by forcing the state to discriminate against its own citizens in order to receive federal funds. The court agreed with the challenge holding that DOMA imposes an unconstitutional condition on the receipt of federal funds, impermissibly interferes with state domestic relations laws, and regulates Massachusetts "as a state," interfering with its ability to structure its traditional functions. The New York Times reports on today's decisions.

Washington State Pharmacy Board Backs Down On Rules In Pre-Trial Compromise

In 2007, the Washington state Board of Pharmacy adopted a rule requiring pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. In July 2009, the 9th Circuit vacated a preliminary injunction that the district court had imposed. It remanded the case directing the district court to apply a rational basis standard in adjudicating pharmacists' free exercise challenge to the rule. (See prior posting.) Now as the case was about to go to trial on remand, the state Board of Pharmacy has backed down and negotiated a compromise. In a stipulation (full text) filed yesterday by the parties in Stormans Inc. v. Selecky, the Board told the court that on June 29 it had begun a rule-making proceeding to adopt an amended rule that would permit facilitated referrals for all pharmacies and pharmacists when they are unable or unwilling to fill a prescription for any reason, including conscientious reasons. PubliCola yesterday reporting on these developments quotes Lisa Stone, Executive Director of Legal Voice , who complained that the state had "pulled the rug out from under our clients." Becket Fund issued a release supporting the new rule making, saying that "Americans should not be forced out of their professions solely because of their religious beliefs...."

Egypt's Constitutional Court Freezes Ruling Requiring Coptic Church To Remarry Divorced Men

ANSAmed and AFP reported yesterday that Egypt's Constitutional Court has imposed a temporary freeze on a controversial ruling issued earlier this year by the country's High Administrative Court. That ruling, handed down in May (see prior posting), required the Coptic Christian Church to allow remarriages of divorced men. Coptic Church head Pope Shenouda III however announced that he would excommunicate any Coptic priest who remarries divorced men in violation of Church law.

11th Circuit Upholds Limits on Feeding Large Groups In Parks

In First Vagabonds Church of God v. City of Orlando, (11th Cir., July 6, 2010), the 11th Circuit, in a 2-1 decision, reversed the district court (see prior posting) and upheld Orlando, Florida's Large Group Feeding Ordinance against a variety of constitutional attacks. 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. It was challenged by Food Not Bombs, an activist group that feeds the poor, and by a church that holds Sunday services (including the sharing of food) in a downtown city park. The majority held that the feeding activities do not amount to symbolic expression under the First Amendment because a reasonable observer would not see them as communicative. It rejected a Free Exercise challenge, finding the Ordinance to be a neutral law of general applicability that serves a rational basis. It rejected void-for-vagueness and equal protection challenges. Finally it concluded that the law does not violate the Florida Religious Freedom Restoration Act because it does not substantially burden the church's exercise of its religious belief in sharing food during services. Judge Barrett dissented, arguing that the activist group's activities are expressive conduct protected by the First Amendment.

State In India Wants To End Prohibition; Ignores Baptist Church In Its Plans

In India, the government of the state of Nagaland is moving to lift a ban on the sale of alcohol that was instituted in 1989 after a campaign led by the state's Baptist Church Council. The ban has mainly encouraged home made liquor and bootlegging rather than reducing the incidence of liquor. Cath News India today reports that the government has not included the Baptist Church in its consultations on repeal. The head of the Nagaland Baptist Church Council Prohibition Committee said: "Christians in Nagaland are prepared to fight for prohibition through any democratic means based on moral and spiritual authority." Some 90% of Nagaland's population of around 2 million are Christians, and most of that number are Baptists.

Hawaii Governor Vetoes Civil Unions Bill; Litigation Planned

Hawaii Governor Linda Lingle yesterday vetoed House Bill 444 that would have given partners in both same-sex and opposite-sex civil unions the same benefits and responsibilities that are enjoyed by married couples. In her veto message (full text) and her statement (full text) accompanying it, Lingle decried the manner in which the legislature's vote on the bill took place (background), and called on the legislature to submit the issue of civil unions to Hawaii's voters. Time, reporting on the veto, indicates that the Hawaii Catholic Conference praised the governor's decision. Now the ACLU and other groups supporting civil unions plan to file suit in state court arguing that Hawaii's state constitution assures LGBT families equal rights and benefits with heterosexual families. (KITV News). (See prior related posting.)

Lawsuit Says Public Utilities In Arizona Town Discriminated Against FLDS Apostates

KSCG-TV News yesterday reported on a lawsuit filed last month by the Attorney General of Arizona against the municipal water and electric companies that furnish utilities to residents of Colorado City, Arizona and its twin community, Hildale, Utah. Land in the towns has traditionally been owned by the United Effort Plan Trust of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). FLDS leaders have encouraged their followers to avoid associating with apostates who they describe as tools of the devil. The complaint (full text) in State of Arizona v. Hildale-Colorado City Utilities, (Maricopa Co.Super. Ct. filed 6/25/2010) alleges that defendants have violated the Arizona Fair Housing Act by discriminatorily denying water service and delaying furnishing electrical service to Ronald Cooke because he was an apostate from the FLDS Church. Cooke, who left the Church at age 18 or 19 returned to Colorado City after suffering serious injuries in an accident and moved into an unfinished home there. He needs water for sanitation and electricity for a medical device he uses. Defendants told Cooke he needed a new building permit for his home before he could receive utilities, while no similar requirement was imposed on FLDS members. The lawsuit also alleges failure to accommodate Cook's medical disability. Cooke has filed a similar lawsuit under the federal Fair Housing Act in federal court as well.

German Magazine Says Catholic Church Is Following Conservatives In Reactions To Abuse Cases

Der Spiegel yesterday carried an analysis of the Vatican's recent actions in priest sexual abuse cases. It argues that there is a power struggle in the Vatican between liberal and conservative forces:

This spring, it looked as though the Catholic Church was finally going to confront charges of sexual abuse head on. Following recent police raids in Belgium, however, the Vatican has once again closed ranks....

The conservatives in the church state see the zero-tolerance policy of US bishops as a means of curtailing the rights of accused priests. By contrast, liberal spirits are pushing to rapidly investigate and refer cases to secular authorities. It currently looks as if the conservatives have regained the upper hand....

German bishops Robert Zollitsch and Reinhard Marx were ... given a dressing down. Benedict reproaches them for not being tender enough with their fellow bishop Walter Mixa when he came under fire amid allegations of violence towards children in his care.

The Holy Father has clearly shown how to treat, in the true Christian spirit, those brothers who have strayed from the flock. He announced that, "following a period of healing and reconciliation," Bishop Mixa, like other retired bishops, would again be available for pastoral duties.

Cath News today however reports that Vatican's Congregation for the Doctrine of the Faith is about to release a set of changes to the Church's internal rules for disciplining priests that will extend the canon law statute of limitations for bringing charges against an abusive priest from 10 years after the victim's 18th birthday to 20 years after. It will also for the first time define child pornography as a grave offense subject to the Congregation's jurisdiction.

5th Circuit Upholds Neutrality Policy For Texas Education Agency Staff

In Comer v. Scott, (5th Cir., July 2, 2010), the 5th Circuit upheld a policy of the Texas Education Agency (TEA) that required its staff to remain neutral and refrain from expressing any opinions on curricular matters subject to the jurisdiction of the Texas State Board of Education. TEA's Director of Science, Christina Comer, was fired for forwarding to 36 science teachers and to leaders of science teacher organizations an announcement about an anti-Creationism talk that was being presented in Austin. Comer challenged the neutrality policy as a violation of the Establishment Clause, arguing that the primary effect of the policy was to endorse or advance religion. The court concluded however:

we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State's endorsement of a particular religion.

(See prior related posting.)

Iranian Ministry Sets Acceptable Islamic Male Hair Styles

AOL News today reports that for the first time, Iran's Ministry of Culture and Islamic Guidance has issued a catalogue of acceptable "Islamic" male hair styles. Pony tails, spikes and Mohawks are among those forbidden. Flat tops and Elvis style hair are permitted. A more complete list of acceptable styles will be released later this month at the Modesty and Veil Festival in Tehran.

7th Circuit En Banc Interprets Equal Terms Provision of RLUIPA

In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, (7th Cir en banc, July 2, 2010), the 7th Circuit in an en banc decision interpreted the equal terms provision of RLUIPA by creating a modified version of the test used by the 3rd Circuit. The 7th Circuit's test treats a regulation as violating the Equal Terms provision "only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory criteria." The 3rd Circuit's test uses "purposes" instead of "criteria" to decide whether there has been discrimination. The court rejected the broader 11th Circuit test for discrimination under RLUIPA. Applying its new test, the en banc court, as did the 3-judge panel, refused to grant a preliminary injunction to permit a church to relocate from a crowded warehouse to property it purchased in an area near a train station zoned for various commercial uses, but not for religious services. Judge Sykes dissented, suggesting an approach that builds on the 11th Circuit's approach.

Report Focuses On Restrictions Limiting Feeding of Homeless

Last week, the National Coalition for the Homeless announced the release of a new report: A Place at the Table: Prohibitions on Sharing Food with People Experiencing Homelessness. According to the press release:

The report argues that targeting churches, service providers and volunteers by placing restrictions on providing food to homeless people is part of a broader trend toward criminalizing homelessness.

The report focuses on areas such as zoning restrictions, limits on use of public property, food safety laws, and police harassment. The report then sets out examples of innovative food programs and proposes various local, state and national legislative actions to help alleviate hunger.

Two Women Appointed Syariah Judges In Malaysia

In a first for Malaysia, Prime Minister Datuk Seri Najib Tun Razak has appointed two women as Syariah Court judges. Bernama reported Saturday that in mid-May 31-year old Suraya Ramli was appointed to the Syariah court in Territory of Putrajaya, while 39-year old Rafidah Abdul Razak was appointed to the court in Kuala Lumpur. The moves were part of the government's program to transform the Syariah judiciary and to enhance justice in cases involving family and women's rights.

Concern Expressed Over Obama Administration's Use of Term "Freedom of Worship"

Sheila Reports today reviews the concerns being expressed in some quarters about change in phraseology by the Obama administration which is often using the term "freedom of worship" instead of "freedom of religion." The State Department says the terms are interchangeable, but others argue that freedom of worship is a much narrower concept. Both the President and Secretary of State Hillary Clinton have used "freedom of worship" in speeches they have delivered.

ACLU Says Catholic Hospitals Violate Law By Refusing Abortions To Save Mothers' Lives

The ACLU announced last week that it has sent a letter (full text) to the Centers for Medicaid and Medicare Services asking it to investigate situations in which religious hospitals refuse to provide emergency reproductive health care. The letter says that refusal of Catholic hospitals to perform abortions that are necessary to save a pregnant woman's life violate provisions of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and the Conditions of Participation of Medicare and Medicaid regulations, 42 C.F.R. § 482.13. The letter cited specific cases of refusal of medical care.

Recent Articles of Interest

From SSRN:

• J. Thomas Oldham, Book Review: 'Almighty God Created the Races' by Fay Botham, (Journal of Law and Religion, Forthcoming).
• Intisar A. Rabb, Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt, (Islamic Law and Society, Vol. 17, pp. 63-125, 2010).
  

From SmartCILP:

• Roberta Rosenthal Kwall, Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism (Reviewing David L. Lange and H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment), 22 Yale Journal of Law & Humanities 143-170 (2010).

Recent Prisoner Free Exercise Cases

In Sterr v. Baptista, (9th Cir., July 1, 2010), the 9th Circuit rejected an inmate's claim that prison officials placed substantial burdens on his religious exercise when they restricted vegetation for his Earth-based religion to "grass only" and set a new schedule for using the prison's religious grounds.

In Stevens v. Skolnick, (9th Cir., July 1, 2010), the 9th Circuit concluded that denial of a TRO to an inmate who was refused permission to conduct his daily Native American prayer practice is not an appealable final order.

In Forde v. Baird, 2010 U.S. Dist. LEXIS 63375 (D CT, June 25, 2010), a Connecticut federal district court held that RFRA requires a federal prison to grant an exemption from non-emergency cross-gender pat down searches to a female Muslim inmate whose religion prohibits her from being touched by men outside of her close family.

In Porter v. Beard, 2010 U.S. Dist. LEXIS 63431 (WD PA. June 21, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 63413, May 12 2010) and allowed an inmate to proceed with claims that his free exercise rights were violated when authorities seized and destroyed his medicine bag.

In Putzer v. Donnelly, 2010 U.S. Dist. LEXIS 63707 (D NV, June 16, 2010), a Nevada federal district court approved a magistrate's recommendations (2010 U.S. Dist. LEXIS 63708, May 11, 2010) and rejected challenges to prison policy that allows one Jewish inmate to light Sabbath candles for all Jews in the prison before Friday evening services that are open to all. Plaintiff claimed he had a right to attend the candle lighting service.

In Kole v. FCI Danbury, 2010 U.S. Dist. LEXIS 63986 (D CT, June 25, 2010), a Connecticut federal district court allowed an inmate to proceed with her RFRA and free exercise challenges to a decision by prison officials to change vendors for Kosher for Passover food, creating a rise in commissary prices for inmate for the food. Plaintiff alleged that the price increase made the food "essentially unavailable" to inmates.

In Gauthier v. Anderson, 2010 U.S. Dist. LEXIS 64190 (WD LA, June 28, 2010), a Louisiana federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 64236, April 21, 2010) and dismissed a frivolous an inmate's complaint that he was not allowed to attend regular church services while he was in lock-down for 2 1/2 months.

In Rouser v. Rutherford, 2010 U.S. Dist. LEXIS 64856 (ED CA, June 28, 2010), a California federal magistrate judge recommended dismissing for lack of evidence and failure to state a claim under RLUIPA and the Free Exercise clause a prisoner's charge that he was disciplined for rules violations solely because of his Wiccan religion. The disciplinary action grew out of a prison riot between several Wicca members and members of a Southern Hispanic gang.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 65356 (WD VA, June 30, 2010), a Virginia federal district court upheld a prison's ban on all Five Percenter publications, even if the particular publication does not advocate violence. The court also dismissed plaintiff's claim to entitlement to the Common Fare Diet, rejecting the magistrate's contrary recommendation.

In Hernandez v. Arizona Department of Corrections, 2010 U.S. Dist. LEXIS 65250 (D AZ, June 11, 2010), an Arizona federal district court permitted an inmate to move ahead against certain defendants on his claim that he is regularly provided kosher food trays that are missing food items and he is not provided with a nutritionally equivalent substitution.

In Belatedly Released Opinion, Judge Says Religion Is Not Basis for Recusal

Last week, a New York federal judge belatedly docketed an opinion that had been prepared in 1998 but not previously released, in which he rejected a motion that he recuse himself because of his religion in a civil rights case against the murderer of an Orthodox Jewish student in the 1991 Crown Height Riot. Defendant in the case based his motion in part on the fact that federal district judge David Trager who was presiding in his trial is an Orthodox Jew. In United States v. Nelson, 2010 U.S. Dist. LEXIS 63814 (ED NY, June 28, 2010), Judge Trager held that religion is an impermissible basis on which to challenge a judge, saying "defendant's argument stands on the same infirm footing as motions that have been made to recuse my African-American and female colleagues in civil rights cases where the victim of the alleged discrimination was black or female." The motion, he said, also implicates Art. VI, clause 3 of the Constitution that bars any religious test for holding public office.

Schools' Released Time Program Challenged

A lawsuit was filed earlier this week in an Indiana federal district court challenging the religious released time program of the Fort Wayne (IN) Community Schools. The complaint (full text) in C.S. v. Fort Wayne Community Schools, (ND IN, filed 6/29/2010), claims that the program violates the Establishment Clause because trailers used for the programs are on school property and apparently obtain electricity from school power sources, and because elementary school students are permitted to attend the religious educational programs without explicit written permission from their parents. Courthouse News Service reports on the case, as does today's Chicago Tribune.

Principals Have No Qualified Immunity For Limiting Student Distribution of Religious Materials

In Morgan v. Swanson, (5th Cir., July 1, 2010), the U.S. 5th Circuit Court of Appeals refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. The court held that it is clearly established that the First Amendment applies to student-to-student distribution of non-curricular materials in elementary schools, and that the First Amendment prohibits viewpoint discrimination against religious speech in elementary schools. (See prior related posting.)

UPDATE: An amended opinion was filed on Nov. 29, 2010 adding that nothing in the opinion prevents the district court from granting qualified immunity if the facts show this was something other than non-disruptive student-to-student speech.

Pennsylvania Ban on Blasphemous Business Names Struck Down

In Kalman v. Cortez, (ED PA, June 30, 2010), a Pennsylvania federal district court struck down a Pennsylvania statute (15 Pa. Consol. Stat. 1303(c)(2)(ii)) that prohibits corporate names from containing "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The Pennsylvania Corporation Bureau rejected plaintiff's certificate of organization for an LLC that would operate under the name "I Choose Hell Productions LLC". Subsequently the Bureau permitted him to instead use the name "ICH Productions LLC". The court concluded that Pennsylvania's blasphemy statute violates the Establishment Clause, failing all three prongs of the Lemon test. It also held that the law infringes free speech rights as a viewpoint-based restriction, and is invalid under the Central Hudson case even if corporate names are considered commercial speech. Yesterday's Legal Intelligencer reported on the decision. [Thanks to James Maule via Religionlaw for the lead.]

Suit Challenges School's Refusal To Permit Distribution of Bibles

A lawsuit was filed in federal district court in Florida yesterday by a group known as World Changers that was refused permission to hand out Bibles in Collier County, Florida high schools. The complaint (full text) in World Changers of Florida, Inc. v. District School Board of Collier County, Florida, (MC FL, filed 7/1/2010), alleged that in the 2006-07 and 2007-08 school years it was permitted to set up a table on Religious Freedom Day to make Bibles available to students who wished to take them, and 1000 to 2000 students did. However, under a new policy, permission was refused for the 2008-09 school year. The new policy required a determination by a committee of administrators that distribution of literature by outside groups "promote student interests." The suit seeks an injunction, and a declaratory judgement that the school policy is an unconstitutional prior restraint on free speech, that it delegates standardless discretion to the Superintendent, that it is a content and viewpoint based restriction that violates plaintiff's free exercise and equal protection rights. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Overly Broad Zoning Ordinance Is Prior Restraint On Expressive Religious Use of Land

Adhi Parasakthi Charitable, Medical, Educational and Cultural Society of North America v. Township of West Pikeland, (ED PA, June 23, 2010), involves various challenges to actions of a zoning board in a Chester County, Pennsylvania township effectively denying zoning approval to a Hindu group for construction of a temple and auxiliary building. A Pennsylvania federal district court held that "in granting an overly broad amount of discretion to its Zoning Board in deciding whether to allow expressive religious use of land within the Township, Defendant has created a prior restraint on speech in violation of Plaintiff's First Amendment rights."

On plaintiff's free exercise and RLUIPA claims, the court held that there are factual disputes which a jury must decide as to whether the Township's zoning law was applied discriminatorily. The court rejected equal protection and due process claims brought by plaintiffs. Some of plaintiffs' proposed construction violated a restrictive covenant on the property. The court held that plaintiffs lacked standing to bring a RLUIPA challenge to the Zoning Board's enforcement of the restrictive covenant, since any burden on plaintiff's free exercise of religion is caused by the restrictive covenant and not by Zoning Board action.

NY City Council Saves Concerts As Court Enjoins Them For Being Too Close To Synagogues

The New York Post and the Brooklyn Eagle report that a Brooklyn court yesterday issued a temporary injunction against the long-running summer concert series in Coney Island's Asser Levy Park. Two synagogues sued, claiming that the concerts violate a city ban against amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. The suit is part of a broader effort to stop development of a $64 million amphitheater project for the park. (See prior posting.) However City Council this week took action to save the summer concert series. It passed a law, which the mayor intends to sign, creating a 90-day pilot program under which amphitheaters, open air band shells and stadiums the right to get permits for concerts even if they are in violation of the 500-foot rule. The bill expires in 90 days, but drafters hope that a permanent solution will be worked out by then.

Appeal Filed In Delaware School Board Invocation Case

Today's Delaware Online reports that an appeal has been filed with the Third Circuit in Doe v. Indian River School District. In the case, a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis, or if the board member prefers, a moment of silence. The district court applied precedent relating to prayers opening sessions of legislative bodies. (See prior posting.)

Ecclesiastical Abstention Doctrine Does Not Bar Negligent Supervision Claim Against Church

In Erdman v. Chapel Hill Presbyterian Church, (WA Ct. App., June 29, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine does not bar a church employee's claim for negligent supervision and retention claims against a church based on alleged physical intimidation and verbal abuse by its pastor. Plaintiff, a Church elder employed as the Church's Executive for Stewardship, was in a dispute with the pastor over whether tours of religious and historical sites led by him jeopardized the church's tax exempt status. Nor are plaintiff's Title VII claims for sexual harassment. However the court dismissed various other claims by plaintiff.

Appeal In Italian Crucifix Case Heard By European Court's Grand Chamber

Yesterday, the 19-judge Grand Chamber of the European Court of Human Rights heard an appeal from a November ruling by a 7-judge panel that held crucifixes in public school classrooms in Italy violate protections in the European Convention on Human Rights. The ECHR panel found that crucifixes in classrooms infringe protections of thought, conscience and religion and the right of parents to educate their children according to their convictions. (See prior posting.) Both the European Centre for Law and Justice and AP report on yesterday's appeal in the case of Lautsi v. Italy . Joining Italy in the appeal were Armenia, Bulgaria, Lithuania, Cyprus, Greece, Malta, Monaco, San Marino, Romania and Russia. Italian courts had held that the crucifix is part of the Italian national identity, and not an attempt to convert students. An amicus brief supporting Italy's position was filed in the case by a group of over 50 law professors from across Europe. The amicus effort was coordinated by Notre Dame law professor Paolo Carozza and the Becket Fund for Religious Liberty. (Notre Dame News, 6/7).

Kagan Gets Some Questions on Religion Clauses

On Day 3 of her confirmation hearings, Supreme Court nominee Elena Kagan was asked questions about the Establishment and Free Exercise clauses, and about standing to raise Establishment Clause issues. Blog from the Capital has an unofficial transcript of the exchanges between Kagan and Senators Feinstein, Cardin and Coburn. Kagan explained her understanding of the religion clauses in part as follows:

In general, I think, what both First Amendment clauses are designed to do - and this is the way in which they work hand in hand with each other - what they're both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.

The full transcripts are worth reading.