7th Circuit: Rastafarian Failed To Inform Potential Employer That Dreadlocks Were Religious Requirement

In Xodus v. Wackenhut Corp., (7th Cir., Aug. 27, 2010), the 7th Circuit affirmed a trial court's holding that Wackenhut Corp. did not violate Title VII of the 1964 Civil Rights Act when it refused to hire plaintiff, a Rastafarian, as a security guard because plaintiff refused to cut his dreadlocks. The Court affirmed the trial court's finding that plaintiff (whose name is Lord Osunfarian Xodus) failed to bring his religious beliefs to Wackenhut's attention. The Wackenhut manager, Clarence McCuller, who interviewed Xodus testified that when he told plaintiff about the company's grooming policy, plaintiff said that cutting his dreadlocks is "against my belief."  But McCuller testified that he was not aware of the Rastafarian religion and did not equate the use of the term "belief" with "religion." The Court wrote:

Xodus claims that his use of the word "belief" and the dreadlocks themselves sufficed to notify McCuller of the religious nature of his hairstyle. But unlike race or sex, a person’s religion is not always readily apparent.... "[E]mployers are not charged with detailed knowledge of the beliefs and observances associated with particular sects." ....  Nor does the fact that Xodus' name begins with the word "Lord" persuade us that McCuller knew the dreadlocks were religious.

Courthouse News Service reports on the decision.

Indonesian Court Orders Closure of Buddha Bar; Awards Damages To Plaintiffs

In Indonesia today, the Central Jakarta District Court ordered the Jakarta branch of the Paris-based Buddha Bar to close.  The court also ordered the company that operates the bar, along with the Jakarta's governor and its tourism agency that allowed the bar to operate,  to pay plaintiffs the equivalent of $111,000. Today's Jakarta Globe and M&C report that a group called the Anti-Buddha Bar Forum filed the law suit last year, charging that the bar's name and its use of Buddhist symbols violated laws requiring respect for state-approved religions. Last year the bar's owners, in response to complaints, renamed it, but plaintiffs say that is not enough because it has refused to remove Buddhist symbols used in the bar,

Court Refuses So Far To Drop Charges Against Preachers At Dearborn's Arab International Festival

A Dearborn, Michigan trial judge Monday, after two hours of oral arguments, refused, at least for now, to dismiss charges beach of peace and failure to obey lawful orders that have been brought against four street preachers for their activities in June at Dearborn's large Arab International Festival. One of the defendants, all members of Acts 17, was engaged in conversations with attendees at the Festival. The other three were videotaping the conversations. According to yesterday's Christian Post, police say the four drew and incited a large crowd, while defendants say their arrest violates their rights of free speech and free exercise of religion. They also claim the arrests were retaliation for an embarrassing video of activities of Festival security guards last year. The court said it needed clarification on some issues before finally deciding whether to drop charges. If they are not dropped, a trial will start Sept. 20.

Wide Ranging Challenge To Health Care Reform Includes Religion Claims

A group of individuals and organizations yesterday filed a lawsuit in a Nevada federal court asserting a wide range of constitutional challenges to the requirement in this year's Patient Protection and Affordable Care Act that all U.S. citizens and legal residents maintain health care coverage.  Several of the challenges in the 55-page complaint are based on the free exercise clause, the establishment clause and the Religious Freedom Restoration Act.  The most straight forward are claims that the law forces Plaintiffs to fund abortion in violation of their religious beliefs and that it establishes "the secular religion of Socialism."  Some of the other religion claims in the complaint (full text) in People V US v. Obama, (D NV, filed 8/31/2010) are more elaborate:

47.... Plaintiff Joshua Hansen has a sincerely held religious belief that God will provide for his physical, spiritual, and financial well-being. Being forced to buy health insurance ...is highly offensive to his faith and beliefs. Plaintiff Joshua Hansen’s faith leads him to want to be free to obtain the health care of his own choosing, whatsoever health care he feels God directs him to obtain, including alternative forms of medicine, such as natural healing, homeopathic treatment, and other alternative forms of medical treatment not recognized or covered by PPACA....

73. Plaintiff TRACIE PISTOCCO is a Christian.... She has a sincerely held religious belief that charity is an obligation and sacrament of his faith as commanded by the Bible that people, as individuals—as opposed to government—are to care for one another. See Luke 14:13; Psalm 41:1, 2; 1 Timothy 6:17, 18. Part of this sincerely held religious belief is that all forms of Socialism are abhorrent and contrary to her Christian faith, because Socialism dictates, by force of law and without free will, that the government will take what the people have and distribute it to those who allegedly have less, regardless of latter’s need or attempt to care for themselves. She objects to PPACA because it compels her, under the guise of the "shared responsibility payment", to perform forced charity which violates the very foundation of his Christian faith.

74.... Christopher Hansen is a Christian and member and founder of the First Christian Fellowship of Eternal Sovereignty and believes that Socialism and its twin brothers, Communism, Fascism, and Marxism, are State/Civic religions and thus that Obamcare/ PPACA, an admittedly socialistic and compelled system of belief, violates the free exercise clause of the First Amendment, because it destroys his ability to exercise his religion according to the dictates of his own conscience. In his belief, Satan is the founder of compelled "charity," which violates the principles of free agency set forth in the scriptures in which Christopher Hansen believes, including the Bible and the Book of Mormon, and the Constitution of the United States of America, which he believes to be inspired by God and the only true political religion. To force him to participate in Obamacare thus violates his free exercise of religion under the First Amendment.

Courthouse News Service reports on the filing of the case.

Suit Claims IRS Has Special Policy To Scrutinize Non-Profit Applications From Pro-Israel Groups Opposed To Obama Policies

The non-profit pro-Israel, Zionist group, Z Street, filed a lawsuit in a Pennsylvania federal district court last week challenging on free expression grounds a purported policy of the Internal Revenue Service to scrutinize particularly closely applications for Section 501(c)(3) non-profit status from organizations that deal with Israel, and especially if the organization supports policies inconsistent with those of the Obama administration on the Middle East. The complaint (full text) in Z Street v. Shulman, (ED PA, filed 8/25/2010), asks for a declaratory judgment that the Israel Special Policy amounts to viewpoint discrimination and seeks an injunction requiring disclosure of the origin and development of the Special Policy. The lawsuit also asks the court to order that Z Street's application for non-profit status be considered expeditiously and fairly. In a press release announcing the lawsuit, Z Street said that its application for non-profit status was filed in January and has, according to an IRS agent, been stalled because of this special policy. The Forward last week said that experts are skeptical about Z Street's claim that its application was sent to a special IRS unit to determine whether its policies contradict those of the administration.

National Religious Moot Court Competition Scheduled For February

The 5th annual National Religious Moot Court Competition will be held at George Washington University Law School on Feb. 4-5, 2011. The competition is open to teams from ABA-accredited law schools. This year's problem deals with RLUIPA as it applies to zoning decisions. This year's final round will be judged by Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit; Professor Michael McConnell of Stanford University's Constitutional Law Center and formerly of the U.S. Court of Appeals for the 10th Circuit; and Melissa Rogers of Wake Forest University who is Chair of President Obama's Council on Faith-Based and Neighborhood Partnerships . More information is available at the website devoted to the competition. [Thanks to Ira "Chip"Lupu for the lead.]

En Banc Review Granted In Challenge To Orlando's Park Feeding Ordinance

The U.S. 11th Circuit Court of Appeals yesterday issued an order (full text) granting an en banc rehearing in First Vagabonds Church of God v. City of Orlando, Florida.  The 3-judge panel in the case, in a 2-1 decision rejected free exercise, free expression and other challenges to Orlando's Large Group Feeding Ordinance that requires a permit to feed more than 25 people in any downtown park, and limits a group to 2 permits per year in any park. (See prior posting.) [Thanks to Glenn Katon for the lead.]

Libya's Gadhafi Irks Italians By Pushing Islam On Italian Women

The Wall Street Journal reported yesterday that Libyan leader Col. Moammar Gadhafi has upset some Italians during his current visit to Italy. On Sunday and Monday, Gadhafi held a series of private meetings with 800 Italian women and a small group of men all recruited online by an agency, Hostessweb. They were all paid by the Libyan government to attend. At the meetings, Gadhafi lectured the attendees on Islam, handed out copies of the Quran, and apparently converted a handful of women. At the meetings, Gadhafi told participants that Islam should become the religion of Europe.

Law and Religion Scholar Steven Goldberg Dies

Today's Washington Post reports that law and religion scholar Steven P. Goldberg died last week. Goldberg was a professor at Georgetown University's Law Center since 1977 and has written a number of books on the intersection of law, science and religion, including Bleached Faith: The Tragic Cost When Religion is Forced Into the Public Square, (Stanford Univ. Press, 2008).

Lincoln Parallels Cited In Confusion About Obama's Religion

In today's San Francisco Chronicle, New York University Professor Jonathan Zimmerman calls attention to an interesting parallel between the persistent rumors that President Barack Obama is a Muslim and rumors faced by Abraham Lincoln. Here is an excerpt:

Just as Obama's enemies call him a closet Muslim, Lincoln's opponents hinted that he was ... a closet Catholic. And in each case, the reason was exactly the same: Millions of Americans feared, derided or despised these faiths....

The whispers about Lincoln's religion began right after he was elected president. The "evidence" was simple, and altogether spurious. Jesuits were active in Lincoln's region of Illinois, so he must have been baptized by them. Oh, and Lincoln had once defended a prominent priest in a slander lawsuit.

.... Lincoln also denounced the bigotry and prejudice of the Know-Nothings, America's most vehemently anti-Catholic political party. "If the Know-Nothings get control," Lincoln warned in 1855, "the Declaration of Independence will read: All men are created equal except for Negroes, foreigners, and Catholics."

And here's why it mattered: Across the political spectrum, including Lincoln's Republican Party, Protestant Americans assumed that Catholics were disloyal to the Republic. "We" respected individual rights, liberties, and freedoms; but "they" took orders from the Vatican.

After a Pew poll earlier this month revealed that 18% of Americans thought Obama is Muslim and 43% did not know his religious affiliation (see prior posting), Obama told NBC interviewer Brian Williams on Sunday that this there is a "network of misinformation" in today's "new-media era." (Los Angeles Times).

Suit Charges Discrimination In Illinois State Police Revoking Appointment of Muslim Chaplain

The Chicago Tribune reported yesterday that the Council on American Islamic Relations has filed a federal civil rights discrimination lawsuit on behalf of a Chicago imam whose appointment as the first Muslim state police chaplain was rescinded after critics complained that he had ties to Hamas. The imam, Sheikh Kifah Mustapha, had solicited funds on behalf of the Holy Land Foundation for Relief and Development, once the country's largest Muslim charity until its leaders were indicted on charges of funneling money to Hamas. (See prior posting.) Steve Emerson of the Investigative Project on Terrorism  said that Mustapha was one of some 300 unindicted co-conspirators in the Holy Land case. Mustapha's lawyer said the imam believed the funds were being used for Muslim causes in the United States. In a release announcing the filing of the lawsuit, CAIR-Chicago said the state police action was reminiscent of the Red Scare of the 1950's. (See prior related posting.)

EEOC Sues Nebraska Meat Packing Plant Over Religious Accommodation of Muslim Employees

According to an AP report, the EEOC yesterday filed a federal lawsuit against JBS Swift & Co. charging that the company failed to make reasonable accommodation for religious observance by some 80 Somali Muslims who were fired from company's Grand Island, Nebraska meat packing plant. The long-running problems at the plant began in 2007 when a number of East Africans were hired to fill spots that became vacant after an immigration raid found a number of illegal Hispanic immigrants working there. During Ramadan in 2008, hundreds of Muslim workers protested that they wanted time to pray and break their fast at sunset. When management tried to accommodate them, the company faced counter protests by non-Muslim workers who said the accommodation would burden them. Eventually the company fired 86 Muslims for walking off the job, and later hired back around a dozen of them. (See prior related posting.)

Suit Charges RLUIPA and FOIA Violations In Church Zoning Dispute

The Power of Praise Worship Center has filed a RLUIPA lawsuit against the village of Dixmoor, Illinois. The suit claims that even though village trustees had approved its use of a building it leased, the village's code enforcement officer ordered it to vacate the building, saying that churches are allowed only in areas zoned residential. The complaint (full text) in Power of Praise Worship Center Church v. Village of Dixmoor, Illinois, (ND IL, filed 8/27/2010), also alleges that the village has prevented the church's attorneys from obtaining a full copy of the village's zoning code. In addition to its RLUIPA claim, the complaint also alleges violations of the Free Exercise Clause and the Illinois Freedom of Information Act. The law firm of Mauck & Baker issued a press release on the case.

UPDATE: WGN News reports that on Aug. 31, a federal judge issued an emergency order allowing the church to reopen while it negotiates a settlement with the city.

Recent Articles of Interest

From SSRN:

• Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, (Utah Law Review, Vol. 2011, No. 2).
• Joseph Blocher, Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause, (Virginia Law Review, Forthcoming).
• Barbara P. Billauer, Human Reproductive Cloning: Science and Jewish Law, (August 25, 2010).
• Christopher C. Lund, Religious Liberty after Gonzales: A Look at State RFRAs, (South Dakota Law Review, 2010).
• Geoffrey P. Miller, Nationhood and Law in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-57, Aug. 26, 2010).
• Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, (Loyola University Chicago School of Law Research Paper No. NO. 2010-009, Aug. 23, 2010).
• Christopher C. Lund, Salazar v. Buono and the Future of the Establishment Clause, (Northwestern University Law Review Colloquy, 2010).
• Lorenzo Zucca, Crucifix in the Classroom: The Best Solution to the Lautsi Case, (August 28, 2010).
• Abhayraj Naik, Imperative Values of a Logical Forgiveness, (Socio-Legal Review, Vol. 6, p. 101, August 2010).

From SmartCILP:

• Christopher C. Lund, Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions, 77 Tennessee Law Review 351-383 (2010).
• Malcolm Voyce, Ideas of Transgression and Buddhist Monks, 21 Law and Critique 183-198 (2010).

Court Rejects Quaker's Challenge To Use Of His Tax Payments For Military

In Moore- Backman v. United States, 2010 U.S. Dist. LEXIS 88547 (D AZ, Aug. 24, 2010), an Arizona federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 88548, June 28, 2010) and dismissed a complaint by a Quaker that the use of his federal income tax payments for military spending substantially burdens his religious exercise in violation of the Religious Freedom and Restoration Act. Plaintiff sought return of a portion of a refund that was not paid to him but was instead applied by the government to offset prior taxes he did not pay because he objected to their use. He also sought an order requiring the government to apply his tax payments solely to non-military uses.

The court held that the action for a refund should be dismissed because plaintiff never first filed an administrative claim for a refund. Plaintiff's request for an order directing the United States to apply his taxes to non-military purposes is not barred by the Declaratory Judgment Act or the Anti-Injunction Act because it is not a challenge to the collection or assessment of taxes. However, the court concluded that there was no free exercise or RFRA violation because under relevant case law the Government is not required to conduct its own internal affairs in a way that comports with an individual's religious beliefs.

Utah High Court Says FLDS Challenge To Trust Reformation Barred By Laches and Ripeness Doctrines

The Utah Supreme Court on Friday rejected an attempt by members of the FLDS Church to challenge a Utah trial court's long-running efforts (see prior posting) to reform the United Effort Plan Trust that holds property on which FLDS members lived in Colorado City, Arizona and Hildale, Utah. In Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, (UT Sup. Ct., Aug. 27, 2010), the Court held that by delaying its objections for three years, the FLDS had waited too long to bring most of its challenges. They are barred by the doctrine of laches. The association of FLDS members that brought suit claimed that the reformation of the trust violated state law and members' constitutional rights, and that the trial court's ongoing administration of the trust also violated their constitutional rights. The only claim that was not barred by laches was a claim that "the district court endorsed a religious test that would give former FLDS members outright deeds to Trust property but would relegate current and practicing FLDS members to receiving spendthrift trusts based on the concern that they might deed their property back to FLDS Church leaders." The Court concluded that this free exercise challenge is not ripe since so far neither the trial court nor the special fiduciary administering the trust has used religion as a factor in determining how to allocate property. The Idaho State Journal reports on the decision.

For those who are following the lengthy developments in Utah's attempt to reform the UEP Trust, the opinion includes an excellent chronology of events.

Recent Prisoner Free Exercise Cases

In Palecek v. Zavaras, 2010 U.S. Dist. LEXIS 85513 (D CO, Aug. 18, 2010), a Colorado federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 86027, July 1, 2010), and permitted a Jewish inmate who objected to the manner in which his kosher food was being prepared to proceed with a claim for injunctive relief against defendants in their official capacities. However other claims, including ones for monetary damages, were dismissed on various grounds.

In Tran v. Gores, 2010 U.S. Dist. LEXIS 86519 (SD CA, Aug. 23, 2010), a California federal district court dismissed an inmate's free exercise claim based merely on allegations that an unnamed Deputy Sheriff took a "religious cross artifact" from him.

In Odneal v. Pierce, 2010 U.S. Dist. LEXIS 86089 (SD TX, Aug. 20, 2010), a Texas federal magistrate judge, in a case on remand from the 5th Circuit (see prior posting), ruled that Texas prison grooming rules impose a substantial burden on free exercise rights of a Native American inmate who wants to grow and wear a kouplock. However, the court concluded, a question of fact remains as to whether the grooming policy serves a compelling interest and is the least restrictive means to satisfy that interest.

In Ciempa v. Jones, 2010 U.S. Dist. LEXIS 86796 (ND OK, Aug. 23, 2010), an Oklahoma federal district court upheld a prison's decision to ban a particular issue of The Five Percenter (a publication of the Nations of Gods and Earth) and found no evidence that an inmate's religious correspondence was interdicted. It also rejected his complaint regarding denial of a Halal diet and his attempt to get the prison canteen to buy pork-free hygiene products from an NGE vendor. However the court permitted plaintiff to move ahead with his claim that his rights under RLUIPA were violated when he was denied copies of two books, The Soldier's Guide and Stoic Warriors, and when he was denied chapel time for NGE study circles.

In Woods v. Harris, 2010 U.S. Dist. LEXIS 86628 (ED AR, Aug. 20, 2010), and Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 86616, Aug. 4, 2010) and dismissed an inmate's complaint that when participating in the Therapeutic Community Program group sessions he was required to use the term "Higher Power" and was not permitted to use the term "God" or "Jesus Christ."

In Bukhari v. Piedmont Regional Jail Authority, 2010 U.S. Dist. LEXIS 87169 (ED VA, Aug. 20, 2010), a Virginia federal district court held that the Religious Freedom Restoration Act does not apply to non-resident aliens denied admission to the country who are being held in custody while removal proceedings are initiated. Plaintiff, a Pakistani national, complained that while in custody he was denied meals that meet Muslim dietary requirements.

In James v. Hayden, 2010 U.S. Dist. LEXIS 88097 (SD NY, Aug. 23, 2010), a New York federal magistrate judge concluded that genuine issues of material fact exist as to whether requiring a Rastafarian prisoner to participate in a group strip search is the least restrictive means by which officials could inspect him for concealed contraband and whether conducting strip searches in a gymnasium rather than a bathroom was reasonably related to a legitimate penological interest. Therefore the court refused to grant summary judgment to defendant on the RLUIPA or Free Exercise claims brought by plaintiff.

In Arnez v. Florida Department of Corrections, 2010 U.S. Dist. LEXIS 88398 (SD FL, Aug. 25, 2010), a Florida federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 88401, Aug. 4, 2010) and refused to dismiss the personal capacity claims by an Orthodox Jewish prisoner against prison officials for refusing to provide him with a kosher diet, and instead providing only a vegan diet despite a 2002 settlement in a prior lawsuit under which the state agreed to provide plaintiff with kosher food.

Court Rejects Free Exercise and Establishment Clause Challenges To Domestic Violence Laws

In Currie v. Michigan, 2010 U.S. Dist. LEXIS 85804 (ED MI, Aug. 20, 2010), a Michigan federal district court dismissed a lawsuit challenging the constitutionality of the state's domestic violence laws on free exercise grounds.  In a complaint described by the court as "nearly unintelligible," plaintiff contended that he was "convicted ... of a crime he didn't commit as corporal punishment and many other forms of disciplinary measures are demanded by the Christian God in the rearing of a child." The court also rejected an establishment clause challenge to mandatory domestic violence counseling sessions. Plaintiff claimed that the counselling sessions were "devised to reshape, alter, reform and prohibit the Plaintiff's religious beliefs."

Christian Icon In Gate of Kremlin Is Restored

In a ceremony in Moscow yesterday, Russian President Dmitry Medvedev and Russian Orthodox Patriarch Kirill unvieled a restored icon of Jesus that had been a part of the main gates in the Kremlin (the official residence of Russia's President), but had been bricked over by Soviet authorities in the 1930's. Yesterday's Kyiv Post reports that the icon was originally placed in the gate in the 16th century, and was rediscovered when the Spasskaya Tower gates were being renovated. In yesterday's ceremony, held on the day of the Assumption in the Orthodox calendar, President Medvedev said: "Now that we've got the icon back, our country secures an additional defense."

Kentucky High Court Says Christian Medi-Share Program Is Insurance Contract Subject To State Regulation

In Commonwealth of Kentucky v. Reinhold, (KY Sup. Ct., Aug. 26, 2010), the Kentucky Supreme Court held that the Medi-Share Program operated by the American Evangelistic Association and the Christian Share Ministry is subject to regulation by the Kentucky Department of Insurance.  Medi-Share bills itself as a "sharing ministry" which people voluntarily join to help pay medical bills of other members. In return, members are eligible to receive donations to cover their own medical expenses. Members make commitments to live by Biblical standards, and also agree to make a monthly "share" payment directly to Medi-Share in an amount based on actuarial standards. The member is assessed an "extra blessing gifts" penalty if the monthly payment is late. Members are removed if they do not make their payments within a specified time. The court concluded that this is a contract of insurance under Kentucky law and is not entitled to the "religious publication" exemption under Kentucky's insurance law. That exemption is available only to religious arrangements in which medical expenses payments are made directly from one member to another. AP reports on the decision. (See prior related posting.)

National Archives Gets Nuremberg Laws For Its Collection

In a ceremony last Wednesday, the National Archives received Germany's original 1935 Nuremberg Laws, signed by Adolph Hitler, for its extensive collection of World War II documents. The laws were Germany's blueprint for its anti-Semitic racial policies. A National Archives press release reports that the documents came from California's Huntington Library, Art Collections, and Botanical Gardens which had received them from Gen. George S. Patton. At the transfer ceremony, Huntington's president recounted:

These documents should have been part of the National Archives, had Gen. Patton followed instructions from his commander-in-chief in Europe, Gen. Dwight D. Eisenhower. Eisenhower directed that all documents related to the persecution of the Jews should be sent to a common collection point in Germany that was preparing for the Nuremberg War Crime Trials. These materials eventually were deposited at the National Archives.

The Archives also released a video on the documents and their background,

Tensions Grow Between Archbishop and Mayor of Mexico City

BBC News yesterday reported that in Mexico the tension between the Catholic Church and the mayor of Mexico City has gotten rather ugly as the Archbishop of Guadalajara, Juan Sandoval Iniguez, accused the mayor of bribery.  Reacting to a Mexico Supreme Court ruling earlier this month upholding legislation in Mexico City granting various rights, including adoption rights, to same-sex couples (AP), the Archbishop remarked at a recent news conference: "Would any of you want to be adopted by a couple of lesbians or queers." He then accused Mexico City Mayor Marcelo Ebrard of bribing Supreme Court justices to rule the way they did.  In response, the mayor has filed a defamation suit against the Archbishop, and the Supreme Court has issued an unusual condemnation of the Archbishop's allegations. A Church spokesman has urged Catholics to vote against the mayor's PRD party at the next election. Mexico's Constitution, Sec. 130, bars clergy from attacking political candidates or parties or publicly attacking the country's laws. A spokesman for the Mexico City Archdiocese argues that Sec. 130 should be changed because it now infringes the freedom of expression of Church leaders.

Ft. Wayne Ends Released Time Classes In Favor of After-School Program

Today's Ft. Wayne, Indiana Journal Gazette reports that a lawsuit filed this summer challenging the released-time religious education program in a Ft. Wayne school (see prior posting) has now apparently become moot. The challenged Weekday Religious Education program had been operating in Ft. Wayne schools for 60 years and for 20 years in East Allen County schools. But now the program --that offered 30-minute per week classes to 3rd, 4th and 5th graders in trailers on or near school grounds-- has ended as a result of both the lawsuit and a concern that too much time was being taken from academic subjects that are on standardized tests. In place of the released time classes, Associated Churches starting in fall 2011 will offer a once-per-week 2-hour after-school program of religious studies and character building. The group will also help schools offer character-building and values-based assemblies in the schools.

Fired Ohio Employees Settle Their Religoius Discrimination Suit

A settlement was filed with the Ohio Court of Claims yesterday in a suit against the state by three former employees who made up the entire staff of the Ohio Workers' Compensation Council.  The former employees-- two staff attorneys and an executive assistant-- accused the Council's director Virginia McInerney of religious discrimination, wrongful discharge, harassment and retaliation.  They claimed that McInerney, who believed she had been placed in her director's position by God, led the staff in prayer and asked an employee to listen to and take notes on God at Work CDs. McInerney also complained that a Senate resolution seeking to privatize the Bureau of Workers' Compensation was "another of Satan's efforts to stall or impede the council's progress." According to the Columbus Dispatch, two of the employees will receive over $20,000 each in the settlement and the third will receive over $12,000. The state will also pay their $15,000 in attorneys' fees. (See prior related posting.)

Muslim Woman Settles In Suit Claiming "Outrage" Over Treatment During Search of Her Apartment

Yesterday's Seattle Times reports that federal officials have settled a lawsuit brought by a Somali Muslim woman over conduct of DEA and police officials in searching her Seattle (WA) apartment in a raid seeking evidence of khat distribution. In May, a federal district court in Jama v. United States ruled that the woman could move ahead with her claim based on the common law tort of outrage. Plaintiff Habibo Jama claimed that during the raid, federal agents handcuffed her and made her wait for several hours in her nightclothes in front of unrelated men in violation of her Muslim religious beliefs. (See prior posting.) Jama settled the suit for $40,000.

Glenn Beck Hosts Conservative Rally; Some Evangelicals Object To Participiation Because of Beck's Mormon Beliefs

Radio and television commentator Glenn Beck is hosting an event tonight at Kennedy Center in Washington, D.C. titled "America's Divine Destiny." Beck's website describes the event as follows:

Guided by uplifting music, nationally-known religious figures from all faiths will unite to deliver messages reminiscent to those given during the struggles of America's earliest days. The event will leave you with a renewed determination to look past the partisan differences and petty problems that fill our airwaves and instead focus our shared values, principles and strong belief that faith can play an essential role in reuniting the country.

CNN reports that this event precedes a rally to be held over the week end at the Lincoln Memorial on the 47th anniversary of Dr. Martin Luther King's "I Have A Dream" speech. The main speaker will be Sarah Palin. However some Christian conservatives have criticized the decision of evangelicals to take part in the Friday event because of Beck's Mormon beliefs. Brannon Howse writes: "The Apostle Paul warns Christians against uniting with unbelievers in spiritual endeavors.... While I applaud and agree with many of Glenn Beck's conservative and constitutional views, that does not give me or any other Bible-believing Christian justification to compromise Biblical truth by spiritually joining Beck." However evangelical activist David Barton defends participation, saying: "Christians concerned about Glenn's faith should judge the tree by its fruits, not its labels."

Staten Island Hosts Its First Official Iftar

SI Live reports on the first ever Iftar to be held at Staten Island (NY)'s Borough Hall.  The Ramadan event was attended by Borough President James P. Molinaro, even though he is an outspoken critic of plans to build a Muslim community center and mosque in lower Manhattan. Some 50 people from Staten Island's five mosques attended the event. Staten Island has some 25,000 Muslim residents. The sundown meal was preceded by a recitation from the Quran and remarks on the significance of Ramadan. Staten Island is the last of the five boroughs of New York City to have an official Iftar event.

O Centro Case Finally Dismissed By Federal District Court

In 2006, in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal , the U.S. Supreme Court ruled that the federal government cannot block a New Mexico church from using a hallucinogenic tea for religious purposes, and remanded the case for further proceedings. (See prior posting.)  Today's Albuquerque Journal reports that the case last week was finally been dismissed by a New Mexico federal district court after the parties entered a 21-page settlement agreement. According to the paper, the agreement specifies procedures for importing hoasca, and for registering, record keeping, inspection, storage and security, as well as agreement on payment of O Centro's attorneys fees.

U.S. Report To U.N. On Human Rights Record Lauds Free Exercise Rights

In 2006, the United Nations General Assembly established the Universal Perioidic Review process through which the human rights records of U.N. member states are assessed every four years. The State Department announced this week that on Aug. 20 the United States submitted its  report (full text) to the U.N. Human Rights Council, reviewing the U.S. human rights record. Here is what the report had to say about relgious freedom in the U.S.:

19. The desire for freedom from religious persecution has brought millions to our shores. Today, freedom of religion protects each individual’s ability to participate in and share the traditions of his or her chosen faith, to change his or her religion, or to choose not to believe or participate in religious practice.

20. Citizens continue to avail themselves of freedom of religion protections in the Constitution and in state and federal law. For example, in a case this year, a Native American primary school student’s right to wear his hair in a braid, in accordance with his family’s religious beliefs, was upheld pursuant to a Texas religious freedom law.

21. The constitutional prohibition on the establishment of a religion by the government, along with robust protections for freedom of speech and association, have helped to create a multi-religious society in which the freedom to choose and practice one’s faith, or to have no faith at all, is secure.

The ACLU issued a press release this week calling the report: "an important step toward turning the Obama administration's stated commitment to protecting human rights into tangible policies." It said however that "the report omits many issues that need significant improvement and doesn't present a full picture of the state of human rights in the U.S." The conservative Christian group Liberty Counsel issued a press release yesterday complaining that: "the report says that it welcomes 'observations and recommendations' from concerned members of the U.N. Human Rights Council, which includes countries such as North Korea, Saudi Arabia and Libya.... The presidency of Barack Obama will be remembered as one that sought to humiliate America by prostrating it before some of the worst human rights violators in the world."

US Bishop Laments "Post-Christian" World

In a strongly worded address delivered to the Canon Law Association of Slovakia on Tuesday (full text), Denver Archbishop Charles J. Chaput argued that events in both the United States and Europe "suggest an emerging, systematic discrimination against the Church that now seems inevitable." Here are a few excerpts:

In general, Catholics have thrived in the United States. The reason is simple. America has always had a broadly Christian and religion-friendly moral foundation, and our public institutions were established as non-sectarian, not antireligious.
 
At the heart of the American experience is an instinctive “biblical realism.” From our Protestant inheritance we have always – at least until now -- understood that sin is real, and men and women can be corrupted by power and prosperity. Americans have often been tempted to see our nation as uniquely destined, or specially anointed by God. But in the habits of daily life, we have always known that the “city of God” is something very distinct from the “city of man.” And we are wary of confusing the two.....
 
Today, in an era of global interconnection, the challenges that confront Catholics in America are much the same as in Europe: We face an aggressively secular political vision and a consumerist economic model that result – in practice, if not in explicit intent -- in a new kind of state encouraged atheism.....

This vision presumes a frankly "post-Christian" world ruled by rationality, technology and good social engineering. Religion has a place in this worldview, but only as an individual lifestyle accessory

LifeSite News yesterday reported on the speech.

Groups Protest Ban On Religion-Based Hiring In Proposed SAMHSA Legislation

Today's New York Times and a press release from World Vision report that over 100 religious organizations have written to every member of Congress objecting to a provision in HR 5466, the proposed SAMHSA Modernization Act of 2010 reauthorizing the Substance Abuse and Mental Health Services Administration.  At issue is a provision (Sec. 501(m)(2)) that would prevent grant recipients under the Act from hiring on the basis of religion. The controversial section reads:

With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved ... may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, educational institution, or society.

Steven McFarland, chief legal counsel at World Vision USA, said that the language would effect "a seismic change in bedrock civil rights law for religious organizations." Among the groups signing the letter are World Vision, the Union of Orthodox Jewish Congregations of America and the U.S. Conference of Catholic Bishops.

New York Bingo Scheme Defrauds Greek Orthodox Diocese

In Queens, New York, three men were indicted last week on 714 gambling related counts in a scheme that defrauded the Greek Orthodox Diocese of America out of hundreds of thousands of dollars.  According to yesterday's Queens Gazette, bingo profits were supposed to go to the Greek Orthodox Diocese, but the affiliated charities were bogus organizations that allowed the three men to take some $830,000 from bingo and illegal side bets for themselves over several years.  The defendants, Spiros Moshopoulos, Tommy Skiada, and Daniella Radulescu were also charged with defrauding the city Department of Consumer Affairs out of some $20,000 in fees.

Egypt Prosecuting Muslim Publisher Over Introduction To Christian Bible

According to Daily News Egypt, Egypt's Prosecutor General on Monday referred Ahmed Abdallah Abo-Islam, a publisher of Islamic books, to a state security court on charges of contempt of the Christian religion.  A complaint had been filed against the publisher by Naguib Gobrael, a Coptic lawyer who is head of the Egyptian Union for Human Rights.  The charges grew out of publication of a copy of the Bible by Abo-Islam with an introduction charging that this is not the authentic Bible, and that the current Christian Bible is fabricated, modified and full of contradictions. The introduction also claims that the Church is deceiving Christians by labeling the Bible as the Holy Book.

FLDS Defendant Will Challenge Texas Bigamy Statute

At a state court hearing Tuesday in San Angelo, Texas, attorneys for FLDS member Wendell Loy Nielsen said they will challenge the constitutionality of Texas' bigamy statute when Nielsen goes on trial in October. Yesterday's San Angelo (TX) Standard Times reports that the prosecution of Nielsen is the first growing out of the April 2008 raid on the FLDS Yearning for Zion Ranch that does not directly involve sexual assault of a child. He is charged with three counts of bigamy. Each count could bring a sentence of up to ten years in prison.

Orthodox Jewish Community In New Jersey Split Over Sex Abuse Charges In State Court

A lengthy article in today's Asbury Park (NJ) Press reports on the rift in Lakewood, New Jersey's Orthodox Jewish community over the process that led to criminal sexual assault and child endangerment charges being brought against Yosef Kolko, a former camp counselor and local yeshiva teacher. The father of the 12-year old child who was the victim of the abuse went directly to Ocean County prosecutors. A number of Orthodox rabbis though say that they favor such charges being handled initially by Jewish religious courts and that the father should have obtained permission from the rabbinical court before filing charges in a civil court against a fellow Jew.

Virginia AG Gives Guidance On Holiday Displays

Virginia's Attorney General last week, at the request of Loudon County officials, issued an official advisory opinion (Opinion 10-067) on permissible holiday displays. The opinion concludes that the state constitution's establishment clause is narrower than the federal one and does not limit holiday displays on public property, though it does prohibit favoritism toward a particular sect or denomination.  Moving to the requirements of the federal establishment clause, the opinion gives the following guidance:

Loudoun County must accommodate religious items within the personal space of employees under certain circumstances. In addition, where the County already has provided a public forum or limited public forum, it will usually lack the right to exclude a religious display of reasonable duration based solely upon content. Even where no such forum previously has been created, the County is free to create a nondiscriminatory forum for recognition of holidays, including Christmas, if it makes clear that the County itself is not communicating a religious message.

Moreover, irrespective of religious accommodation, the County is free to communicate its own recognition of holidays, including Christmas, as long as overtly Christian symbols are balanced with other religious and secular ones in a way that communicates to reasonable, informed observers that the County is not making a religious statement. Because secular symbols can insulate innately religious symbols from constitutional attack, decoration of public buildings with such secular items as lights, candy canes, wreaths, poinsettias, fir trees, snowflakes, and red and green ribbons should raise no serious constitutional objection.

Today's Richmond Times-Dispatch reports on the opinion.

South Carolina AG Says Non-Profit Group's "I Believe" Plates Are Constitutional

Last year a federal district court held that a statute authorizing South Carolina's "I Believe" license plates-- carrying the image of a cross superimposed on a stained glass window-- violates the Establishment Clause.  (See prior posting.) Yesterday's Myrtle Beach (SC) Sun News now however reports that state Attorney General Henry McMaster has issued an opinion ruling that a new plan for similar "I Believe" plates is constitutional. Instead of being specially authorized by statute, this time a private non-profit group has applied for issuance of the plates under a general law that allows non-profit groups to apply for creation of specialty plates by paying $4,000 or collecting at least 400 prepaid orders. (SC Code of Laws Sec. 56-3-8000). The proposed new plate has the group's website URL along the top: http://www.ibelievesc.net/. Below it, the plate depicts a golden sunrise and on the left, and three crosses symbolizing the site of Jesus' crucifixion. South Carolina already has authorized 127 different specialty plates, including 21 created by non-profit groups, including one that reads "In Reason We Trust" created by a secular humanist group. The Aug. 16 Attorney General's Opinion reasoned: "The specialty license program has a secular purpose - allowing all nonprofit organizations to identify themselves by a logo or symbol."

2nd Circuit: Jewish Parole Division Employee May Proceed With Hostile Work Environment Claim

In Leifer v. New York State Divsion of Parole, (2d Cir., Aug. 23, 2010), the U.S. 2nd Circuit Court of Appeals rejected Title VII religious discrimination and retaliation claims by a Jewish employee of the New York Division of Parole. Plaintiff complained that mandatory meetings were scheuduled on the Jewish holiday of Rosh Hashanah in 2001 and Shavuot in 2003. The court concluded that plaintiff's religious exercise was accommodated when he was excused from attending the meetings. He did not show any material change in the terms and conditions of his employment as a result of his missing the meetings. However the court did  conclude that plaintiff was entitled to go to trial on his charge of a hostile work environment. The court said: "Leifer presents evidence of six interactions with his supervisors over a three-year period which implicate his religion.... [A] reasonable jury could find the interactions to be sufficiently hostile to have altered his employment conditions for the worse."

Suit Seeks To Enforce FOIA Request For FBI Records on Surveillance of Muslims

The ACLU of Northern California, the Asian Law Caucus and the San Francisco Bay Guardian yesterday filed a lawsuit against the FBI seeking to enforce Freedom of Information Act requests filed in July asking for records relating to the surveillance of Muslim communities in California. (See prior posting.) The complaint (full text) in ACLU of Northern California v. FBI, (ND CA, filed 8/24/2010), argues that the government surveillance at issue impacts fundamental First Amendment rights of free exercise of religion, freedom of association and freedom of expression. The ACLU announced the filing of the lawsuit in a press release. Illume yesterday reported on the lawsuit.

9th Circuit Reinstates Evangelist's Defamation Claim Against ABC's 20/20

In Price v. Stossel, (9th Cir., Aug. 24, 2010), the U.S. 9th Circuit Court of Appeals reversed a California district court's early-stage dismissal under California's anti-SLAPP statute of a defamation claim by a prosperity gospel evangelist. Dr. Frederick Price brought an action against ABC television correspondent John Stossel and others involved in producing the show 20/20.  On the show, Stossel showed a clip of a sermon by Price in which Price describes a person with substanital wealth. Out of context the show suggested Price was talking about himself when, in fact, the quote was about a hypothetical wealthy person who was spiritally unfulfilled. The 9th Circuit held that for purposes of an anti-SLAPP motion, the court should determine whether the clip as broadcast materially altered the meaning conveyed by the speaker. The district court had erroneously relied on the conclusion that the statement's meaning, while distorted by ABC, was still substantially true. In remanding to the district court, the 9th Circuit said it was expressing no opinion on whether plaintiff could show the other required elements of a defamation claim. OC Weekly yesterday reported on the opinion.

Bonfire Permit Denied To Group Seeking To Burn Qurans As 9/11 Protest

As previously reported, the Dove Outreach Center in Gainesville, Florida has created a furor by announcing its plans to host an International Burn A Quran Day on Sept. 11. The Gainesville Sun reported last week that the city has refused to grant Dove Outreach a permit to have an open bonfire. Under the city's fire code, outdoor burning is prohibited without a permit. This includes burning newspaper, corrugated cardboard, container board or office paper. The church says it will go ahead with the protest without a permit.

Preliminary Injunction Bars Application of Obama Administration Stem Cell Research Guidelines

Yesterday in Sherley v. Sebelius, (D DC, Aug. 23, 2010), the U.S. District Court for the District of Columbia issued a preliminary injunction preventing the Obama administration from applying it Guidelines for Human Stem Cell Research. Those Guidelines expanded federally funded research involving embryonic stem cells. The court concluded that plaintiff's had shown a likelihood of success on the merits on their argument that the Guidelines violate the Dickey-Wicker Amendment that prohibits the use of federal funds for research in which human embryos are destroyed.  The court rejected the government's attempt to distinguish between deriving stem cells from an embryo and conducting research on those stem cells.  The New York Times reports that there is confusion over whether the preliminary injunction impacts research projects already funded. (See prior related posting.)

Compromise Near To Drop Charges Against Westboro Funeral Protester

Sarpy County, Nebraska is close to reaching an agreement with Westboro Baptist Church leader Shirley Phelps-Roper that will lead to dismissing charges of negligent child abuse and disturbing the peace that have been brought against her.  The charges grew out of a 2007 protest at the visitation before the funeral of Iraq war veteran Randy Chaney. Westboro members picket veterans' funerals with signs protesting U.S. tolerance of homosexuality and other activities they consider sinful.  At the protest, Phelps-Roper's ten year old son was standing on an American flag. According to yesterday's Omaha World-Herald and a report from AP, charges of flag mutilation and contributing to the delinquency of a minor have already been dropped because a federal court declared the state's flag mutilation statute unconstitutional. Under the compromise being negotiated, Phelps-Roper will drop the lawsuit she has filed against three Sarpy County Attorneys who are prosecuting her seeking damages for violating her First Amendment rights. She will also drop Sarpy County from a pending federal lawsuit challenging the constituitonality of the state's funeral protest law. Phelps-Roper said: "The deal is 'You stop prosecuting us for our religion, and we'll stop suing you for prosecuting us for our religion'." The family of veteran Randy Chaney is unhappy with the county's decision to drop charges.

Bangladesh Court Says College May Not Require Religious Attire

According to yesterday's Jakarta Globe, Bangladesh's High Court has ordered the government to take action against the administrator of Rani Bhabani Women's College for requiring women to wear the burqa, and barring women from playing school sports and attending cultural activities.  The court held that no religious attire of any kind, including skull caps for men, can be required. This follows a decision by the High Court in April that women employed in public educational institutions may not be required to wear the veil, or hijab, against their will. (See prior posting.)

9th Circuit: World Vision Exempt From Title VII Religious Discrimination Ban

The 9th Circuit yesterday, in a 2-1 decision that spawned three lengthy opinions, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

In Spencer v. World Vision Inc., (9th Cir., Aug. 23, 2010), Judge O'Scannlain, writing the opinion for the court, formulated the test for the exemption as follows:

a nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.

Judge Kleinfeld concurring formulated the test somewhat differently:

To determine whether an entity is a “religious corporation, association, or society,” determine whether it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

Judge Berzon, dissenting, wrote:

Section 2000e-1(a) reflects Congress’s recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.

My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.

[Thanks to Ted Olsen via Religionlaw for the lead.]

Church Not Entitled To Tax Exemption When House It Owns Is Vacant

The LaCrosse (WI) Tribune reports that a federal district court has rejected a claim by Asbury Methodist Church in LaCrosse that its due process and free exercise rights were infringed when it was denied a tax exemption in 2008 while its property was being converted from a tax exempt parsonage to a tax exempt hospitality house.  Tax officials said that the house was vacant on Jan. 1, 2008 and so was not exempt for that year.  At issue were $4000 in property taxes.

UPDATE: Here is the full text of the opinion on LEXIS: Asbury United Methodist Church v. City of La Crosse, 2010 U.S. Dist. LEXIS 86744 (WD WI, Aug. 23, 2010).

Court Refuses Preliminary Injunction Against Georgia's Ban On Guns In Churches

On June 4 this year, Georgia's governor signed S.B. 308 that was enacted to clarify Georgia's gun laws. Among other things, the new law prohibits the carrying of guns in any house of worship. In July, GeorgiaCarry.org. along with Baptist Tabernacle of Thomaston, Georgia, its pastor and one of its members, filed a lawsuit in state court challenging that portion of the law. (See prior posting.) Along with the complaint, plaintiffs filed a motion for a preliminary injunction. Earlier this month, defendants removed the case to federal court. According to the Atlanta Constitution, the federal court yesterday refused to issue a preliminary injunction against enforcement of the ban. Plaintiffs say that worshipers want to arm themselves for protection, and the church agrees that they should be able to do so. Another argument being pressed by plaintiffs is that under the statute, the church's pastor is barred from bringing a weapon for protection when he is working alone or when he is in the pulpit. The suit raises both free exercise and Second Amendment challenges, and is probably the first suit filed after the U.S. Supreme Court in June in McDonald v. City of Chicago extended Second Amendment to state and local laws.

Debate on RFRA: Hamilton vs. Friedman

PublicSquare.net has posted a 4-part debate between Marci Hamilton and me on the Religious Freedom Restoration Act.  Actually the essays comprising the debate were written a number of months ago-- there was substantial delay in the exchange actually getting posted. So while a few of the references are dated, the basic thrust of the exchange is still relevant.

Kazakhstan Plans Offering of Shariah-Compliant Bonds

UAE's The National reported yesterday that the nation of Kazakhstan, planning its first issuance of government bonds in ten years, will issue Shariah-compliant bonds (Sukuk securities) instead of Euro bonds.  Kazakhstan is trying to become a regional Islamic finance center by 2020.

Suit Claims Religious Discrimination In Barring of Faith-Based Substance Abuse Program From County Jail

Yesterday's Santa Rosa (FL) Press Gazette reports that a federal religious discrimination lawsuit was filed Friday by Milton, Florida's First Apostolic Church seeking to prohibit Santa Rosa County Sheriff Wendell Hall from excluding the church's faith-based Alcohol and Chemical Treatment Series program from the Santa Rosa County Jail. The lawsuit alleges that the decision to remove the Church's volunteers from the jail was taken by the Santa Rosa County Inter Faith Board, and involves a "doctrinal dispute" over proper baptism rites.

Recent Articles of Interest

From SSRN:

• Peter G. Danchin, Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred, (Duke Forum for Law & Social Change, Vol. 2, pp. 5-38, 2010).
• Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits after Summum, (William & Mary Bill of Rights, Vol. 19, 2010).
• Geoffrey P. Miller, Consent of the Governed in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-56, Aug. 20, 2010).
• Patrick Macklem, Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe, (August 17, 2010).

From SmartCILP:

• Edward Rubin, Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause, 63 Vanderbilt Law Review 763-811 (2010).
• Glenn A. Trager, Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal Order [Abstract], 35 Law & Social Inquiry 339-367 (2010).

West Reacts Strongly To Stoning Sentences Under Islamic Law

In its Behind the News section, today's New York Times carries an article exploring the particularly strong reaction in Western countries to two recent cases of execution by stoning under Islamic law. In Afghanistan last week, the Taliban stoned a young couple to death for trying to elope.  Last month international protest arose over the stoning sentence imposed in Iran on a woman accused of adultery. Brazil offered the woman, Sakineh Mohammadi Ashtiani, asylum. Iranian authorities then redefined Ashtiani's crime as murder. Stoning is a legal punishment in Iran, Saudi Arabia, Somalia, Sudan, Pakistan and Nigeria. However it is rarely imposed. Islamic law allows stoning only when four male eyewitnesses testify to the same conduct. Some non-Muslim societies, such as the Kurdish Yazidi, have also imposed the punishment.

Recent Prisoner Free Exercise Cases

In Vazquez v. Ragonese, (3d Cir., Aug. 18, 2010), the 3rd Circuit remanded to the district court for consideration under RLUIPA of a prisoner's claims that prior institutions have failed to forward certain religious items (including oil, soaps, tarot cards and a multi-colored beaded necklace) to him after he was transferred to another institution. The court also remanded for consideration of plaintiff's claim that he is not allowed to purchase or acquire materials he needs for his religious practices.

In Lightner v. Ausmus, 2010 U.S. Dist. LEXIS 85348 (D ID, Aug. 17, 2010), an Idaho federal district court held that the statute of limitations barred a civil rights action by a paroled sex offender who charged that his parole officer would not agree that he could attend a Baptist church, but only gave him permission to attend an LDS church.


In Maxwell v. Hobbs, 2010 U.S. Dist. LEXIS 84931 (ED AR, July 23, 2010), an Arkansas federal magistrate judge recommended dismissal of an inmate's complaint that his free exercise rights were violated when prison officials disapproved the Five Percenter Newspaper he was receiving concluding that it contained gang-related content.
 
In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 83006 (D CO, Aug. 12, 2010), a Colorado federal district court rejected a prisoner's claim that he was arbitrarily removed from the Common Fare diet and was not offered a comparable alternative to meet his Christian religious needs. The court concluded that plaintiff's adoption of a whole foods diet was for health reasons, rather than for religious reasons. To the extent there were later religious reasons, plaintiff failed to show that this imposed a substantial burden on his free exercise of religion. Beyond this, the claim was barred by the statute of limitations. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 83693, June 22, 2010. The prisoner who filed the case was Oklahoma City bomber Terry Nichols. (AP report).
 
In Marksberry v. Strode, 2010 U.S. Dist. LEXIS 82482 (WD KY, Aug. 2, 2010), a Kentucky federal district court held that an inmate's 1st Amendment rights were not violated when when a prison official referred to his Rastafarian religious head covering as a "clown hat." In a second case involving a claim by the same prisoner, 2010 U.S. Dist. LEXIS 82481 (WD KY, Aug. 3, 2010), the same judge held that plaintiff's 1st Amendment rights were not violated by a 5-day delay in furnishing him a vegetarian diet and permitting him to wear his "crown" head covering. It also held that the claim is time barred.

Westboro Leader In Interview Justifies Picketing Of Soldiers' Funerals

The Huffington Post on Friday carried an interview by investigative reporter Joshua Kors of Pastor Fred Phelps of the Westboro Baptist Church in which Phelps justifies his group's confrontational picketing of veterans' funerals and other venues. Here are a few excerpts:

Phelps: The mission of the church is to preach to a doomed world, to let them know about the second coming of Jesus. It's not going to be pretty. Look at the world of Noah. In his day there were 12 to 16 billion people on Earth, and only eight got out of that flood alive. The world is going to be devoured by fire. ...

The message we have is simple: the sodomites have taken over the country, and this country has given itself over to immorality. We want to warn the nation, let them know that God is not going to let this country get by with that kind of degeneracy. So what's the right forum to preach that message?

Kors: People would say funerals are not the right forum. And why soldiers' funerals?

Phelps: Soldiers' funerals are the right place. The Lord has killed him. The soldier shouldn't be there dead. But this is the God that delivered ten different plagues -- and nothing worked. So here we are....

Kors: What happens to homosexuals when they die?

Phelps: These fags are going to hell. And I'm supposed to be quiet about that? I'm supposed to get lockjaw? The Bible's just full of hell, the wrath of God.

Kors: On TV, in movies, hell is always portrayed as full of flames and snakes.

Phelps: That's right. Hell is the place where the worm eats on fags, and the fire is never quenched. Indescribable pain. The Lord Jesus said that. And he knows because he's had a front row seat since the creation of Adam. What you need to do is get a Bible and look up Luke, Chapter 16. These fags are going to hell, and instead of squawking like crybabies, they ought to be so thankful that at no expense to them, we've dedicated time and resources to preach to them. People say we're "disturbing the peace." Don't you understand: we've done 40,000 of these pickets, and we'd be in jail if we were disturbing the peace.

Court Enforces Restrictive Covenant To Bar Construction of Chabad Center

In Criscenzo v. Chabad-Lubavitch of  the Shoreline, Inc., (CT Super. Ct., Aug. 13, 2010), a Connecticut trial court judge enforced a restrictive covenant in a deed to bar Chabad Lubavitch from building a Chabad center to be used as a synagogue, school and activity center on residential property in the town of Guilford.  The Guilford Planning and Zoning Commission had granted a special permit for the construction. The court rejected challenges to plaintiffs' ability to bring the challenge as well as a claim of change of circumstances. The New Haven Register reported on the decision yesterday.

Magistrate Rejects Challenge To North Dakota Ten Commandments Monument

In Red River Freethinkers v. City of Fargo, (D ND, Aug. 16, 2010), a North Dakota federal magistrate judge recommended that a lawsuit seeking removal of a Ten Commandments monument from the civic plaza, land owned by the city of Fargo, be dismissed. In 2005, the court rejected an Establishment Clause challenge to the monument by the same plaintiffs. Then the Freethinkers proposed donating a companion monument with language rejecting the notion that the U.S. is a Christian nation, but agreed that their monument offer would be withdrawn if the city moved the Ten Commandments to private property. The City Commission agreed to this, but changed its mind when 5200 signatures were collected for an initiated ordinance to keep the monument on city land. Council adopted an ordinance to keep the Ten Commandments and this lawsuit followed.

According to the court, plaintiff contends that "the City acted with an 'overt religious purpose' in reversing its decision to move the Ten Commandments monument to private property and has 'transformed' the previously constitutional display of a mixed secular and religious expression to one with an unconstitutional, religious purpose by adopting the initiated ordinance." However the court disagreed, concluding:

Freethinkers’ amended complaint asserts that, by adopting the initiated ordinance, the City adopted the alleged religious motivations of the petition promoters. This conclusory assumption is not supported by any allegations of fact.

The court also concluded that even if it did invalidate the ordinance, that would not necessarily lead to removal of the Ten Commandments monument. The city would still be free to leave the monument in place. The Crookston (ND) Daily Times reports on the decision.

UPDATE: The court adopted the magistrate's recommendations at Red River Freethinkers v. City of Fargo, 2010 U.S. Dist. LEXIS 93819 (D ND, Sept. 8, 2010).

EEOC Lawsuit Charges Failure To Accommodate Employee's Sabbath

The EEOC announced in an Aug. 12 press release that it has filed suit in a North Carolina federal district court against Measurement, Inc., an educational company, charging that it fired an employee rather than accommodate her religious needs to avoid work on Saturdays.  Jacqueline Dukes is a member of the Christian denomination Children of Yisrael which observes the Sabbath from sundown Friday to sundown on Saturday.  In Sept. 2008 Dukes was told that she would have to work on Saturdays on a new project. The EEOC complaint charges that Measurement could have accommodate Dukes by permitting her to switch shifts with other employees.

Preliminary Injunction Denied In Suit By Counseling Student Objecting To Remediation Plan

In Keeton v. Anderson-Wiley, (SD GA, Aug. 20, 2010), a Georgia federal district court refused to issue a preliminary injunction in a suit by a graduate student in counseling at Augusta State University who was required to complete a Remediation Plan regarding counseling of homosexual clients in order to remain in the program. The action was taken after the faculty expressed concern that student Jennifer Keeton might not be able to separate her personal, religious-based views on homosexuality from her professional counseling duties. Keeton alleged that the school's action violated her free speech, free exercise, equal protection and due process rights. (See prior posting.)

Judge Hall, emphasizing that "despite any suggestion to the contrary, this is not a case pitting Christianity against homosexuality" said that he "will not, especially at this early stage of the litigation, serve as an 'ersatz dean'."  The court continued:

the Remediation Plan was imposed upon Plaintiff not because of mere disagreement with her viewpoints, but because of Plaintiff's inability to resist imposing her moral viewpoint on counselees, a position contrary to the ethical rules incorporated into the ASU counseling program's curriculum....  [I]ncorporation of the ACA [American Counseling Association] Ethical Code into the ASU counseling program's curriculum, and requiring students to adhere to the Code as a curricular requirement, appears at this time to be "reasonably related to legitimate pedagogical concerns"....

To the extent that Defendants compel Plaintiff to speak at all by requiring that she "affirm" GLBTQ conduct in a counseling setting, they demand nothing more than Plaintiff's adherence to the ACA Code of Ethics....

Yesterday's Augusta Chronicle reports on the decision.

Malaysian Appellate Court Says Status As Muslim Up To Syariah Court

According to Bernama, Malaysia's Court of Appeal ruled yesterday that only the Syariah Court has jurisdiction to determine whether someone is Muslim.  The ruling came in an appeal of a 2005 lower court decision refusing to turn the body of former army commando and famed Mt. Everest climber M. Moorthy over to his Hindu wife for burial. (See prior posting.) The Kuala Lumpur Islamic Affairs Religious Council obtained an ex-parte order from the Syariah Court stating that Moorthy had embraced Islam prior to his death and it buried him in a Muslim cemetery. The Court of Appeal said that Moorthy's widow can apply to the Syariah Court to have the ex parte order set aside.  The widow's attorney said he would file for leave to appeal to the Federal Court.

US Soldiers Pressured To Attend Commanding General's Religious Concerts

Talk To Action reported Thursday on a series of Commanding General's Spiritual Fitness Concerts at Fort Eustice and Fort Lee, both Army bases in Virginia. Supposedly attendance is voluntary, but soldiers feel pressured to attend. It is reported that in May an NCO put group of soliders at Ft. Eustice on lockdown and required them to do maintenance work for opting out of attendance. Maj. Gen. James E. Chambers began the concert series which was supposed to have performers from different religious traditions. However all the concerts have featured evangelical Christina performers, who also read from the Bible and gave Christian testimony between songs. The Military Religious Freedom Foundation is looking into the cost of the concerts that featured nationally known Christian artists. [Thanks to Dispatches from the Culture Wars for the lead via Scott Mange.]

Evangelist Franklin Graham Says President Obama Was Born A Muslim But Has Now Accepted Jesus Christ

In a rather surprising interview (video) with CNN's John King yesterday, a leading Christian evangelist, Franklin Graham, made these comments on President Obama's religious beliefs (excerpts as reported by ABC News):

I think the president's problem is that he was born a Muslim, his father was a Muslim. The seed of Islam is passed through the father like the seed of Judaism is passed through the mother. He was born a Muslim, his father gave him an Islamic name.

Now it's obvious that the president has renounced the prophet Mohammed, and he has renounced Islam, and he has accepted Jesus Christ. That's what he says he has done. I cannot say that he hasn't. So I just have to believe that the president is what he has said.

Time's Cover Story Asks Whether US Is Islamophobic

The cover of this week's Time magazine features the question: "Is America Islamophobic?" The lead story, abridged online, observes in part:

Although the American strain of Islamophobia lacks some of the traditional elements of religious persecution — there's no sign that violence against Muslims is on the rise, for instance — there's plenty of anecdotal evidence that hate speech against Muslims and Islam is growing both more widespread and more heated. Meanwhile, a new TIME–Abt SRBI poll found that 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers.

Accompanying the lead article is "A Brief History of Intolerance in America" and a video titled "Inside the Park51 Mosque" in which Muslims in Lower Manhattan discuss how Islam is viewed in the U.S.

FLDS Wants Utah High Court To Stay Trustee's Action On UEP Trust

The Salt Lake Tribune reports that members of the FLDS church filed a petition with the Utah Supreme Court yesterday asking it to stay, pending its decision in the matter, all but the most necessary acts regarding the United Effort Plan Trust which is being reformed under trial court supervision. The UEP trust holds almost all the property in the twin FLDS towns of Hilldale, Utah and Colorado City, Arizona. At issue is a July 27 order by trial court judge Denise Lindberg that gives acts of the court-appointed fiduciary managing the trust the force of court orders. A trial court hearing is scheduled for Sept. 21 on a final subdivision plat for the land filed by trustee Bruce Wisan that will move land from communal to individual ownership. The FLDS petition to the Utah Supreme Court urges in part: "The fiduciary has made it clear that he intends to force FLDS members to take back in their own names what they have given to the Lord, even though their faith prevents them from doing so and requires that they honor their consecration. This is nothing short of a government-imposed religious test." (See prior related posting.)

Pew Poll Shows More Americans Think Obama Is Muslim

Yesterday the Pew Forum on Religion and Public Life released a new poll on Religion, Politics and the President. The finding making the most headlines (ABC News) is that a growing number of Americans incorrectly believe that President Obama is Muslim. 18% of those responding say Obama is a Muslim (up from 11% in March); 34% say Obama is a Christian; and 43% say they don't know.

The Press Gaggle aboard Air Force One yesterday (full text) included a lengthy exchange between reporters and Deputy Press Secretary Bill Burton about this part of the poll. Here is a portion of the exchange:

Q The Pew poll came out today and there’s some numbers on there that are interesting -- one showing that the number of Americans who believe that the President is Muslim has gone up, while the number of Americans who believe the President is Christian has gone down. What do you guys make of that?

MR. BURTON: Well, I think ... for most Americans, ... what they’re focused on is ... important issues like what’s happening in Iraq and Afghanistan, what’s going on in the economy, what are we doing to create jobs -- all these different issues.

And so the President is obviously a -- is Christian. He prays every day. He communicates with his religious advisor every single day. There’s a group of pastors that he takes counsel from on a regular basis. And his faith is very important to him, but it’s not something that is a topic of conversation every single day.

The poll also covered other aspects of religion and politics. 52% of the respondents said that churches should keep out of politics, while 43% say that houses of worship should express their views on social and political issues. 61% say it is important that members of Congress have strong religious beliefs. Only 46% of White Evangelical Protestants in the poll saw the Republican Party as friendly to religion. Republicans have made gains among all religious groups except for Hispanic Catholics.

City Incurs High Legal Fees Battling Hindu Woman Over Assessment To Remove Tree

WLS-AM 890 reported yesterday that the city of Evanston, Illinois has incurred some $40,000 in legal fees seeking to collect a $635 special assessment against Padma Rao who refused to pay on religious grounds.  The assessment involved an alley paving project, and required the removal of a tree that stood near Rao's condominium.  Rao and her mother say that removal of the tree violates principles of their Hindu religion which bars the needless killing of any living thing and prohibits Hindus from participating or acquiescing in needless killings. Rao has consistently lost in the courts and now may face the condo being auctioned off at a tax sale.

Muslim Disney Employee Files EEOC Complaint Over Wearing Hijab

The Orange County (CA) Register reported on Wednesday that a Muslim employee at a cafe in a Disneyland resort hotel has filed a compliant with the EEOC charging discrimination. Imane Boudlal says she was sent home four times for attempting to wear a hijab in her work as a hostess at Storytellers Cafe in Disney's Grand Californian Hotel.  Disney, which has a strict dress code, says it offered Boudlal a behind-the-scenes job temporarily while an accommodation was worked out, but she refused.  Boudlal says she wrote Disney requesting permission to wear the headscarf, but received no response. So she filed her discrimination complaint and held a press conference to call attention to the issue. Disney says the hotel union with which it is in a contract battle is using this issue to distract attention from the real issues faced by their members.

Court Refuses To Issue Preliminary Injunction Against University's Speaker Rules

In McGlone v. Bell, 2010 U.S. Dist. LEXIS 84578 (MD TN, Aug. 16, 2010), a Tennessee federal district court refused to grant a preliminary injunction in a suit brought by a Christian evangelist challenging Tennessee Technological University's policy on outside speakers' use of campus facilities.  The policy requires application 14-business days in advance by outside speakers or groups that want to use campus facilities to speak or hand out literature. The court held:

The campus use policy is content-neutral, and it specifically permits individuals and groups to express religious messages on campus. ... [It] is not vague and it does not place unbridled discretion in TTU officials to restrict speech. Rather, the policy places explicit limitations on the discretion that may be exercised by those charged with approving or denying applications for registration. The policy specifies nine (9) circumstances under which an application for registration may be denied. These specified circumstances constitute reasonable time, place, and manner restrictions, and the policy is narrowly tailored to serve the significant governmental interests of TTU in promoting the orderly conduct of activities on campus and preventing the interruption of the university's normal educational mission. The policy also leaves open ample alternative channels of communication....

By ignoring the application requirement entirely, the plaintiff precluded campus officials from considering, in light of the policy's requirements, the plaintiff's desire to speak, to display signs, and to distribute literature on the TTU campus. Thus, the plaintiff has not shown that the campus use policy was applied to him, and he has not suffered any concrete and particularized harm that is actual or imminent resulting directly from the application of the policy to him.... The plaintiff's failure to show a concrete and particularized injury that is actual or imminent undercuts his facial constitutional challenge as well.

The court also dismissed on qualified immunity grounds claims against University officials in their individual capacities.

New York's Ban On Sunday Service of Process Only Applies If Service Interrupts Person's Sabbath

New York's General Business Law, Sec. 11, prohibits service of process in civil cases on Sundays. However in Carbon Capital Management, LLC v American Express Co., (Sup. Ct. NY Nassau, July 29, 2010), a New York trial court upheld the validity of service on Sunday on the concierge in defendant's apartment builiding. The court said that the section is designed to avoid interrupting a person on that individual's day of rest. The court continued:

Where the process server delivers the summons on Sunday to a person ... in defendant's household, it may be assumed that their Sabbath day has been interrupted to the same extent as that of the defendant. However, where the person ... is the concierge in a multiple dwelling, it is clear that the concierge's Sabbath is not being interrupted.... If defendant did not want to be disturbed with legal matters on Sunday, he had simply to instruct his concierge to hold any summonses or other documents which might be delivered.

... Were this court to construe § 11 as prohibiting service of process on Sunday, regardless of whether the repose or religious liberty of defendant or anyone in his household was effected, the statute might well run afoul of the establishment clause. Finding a service void under such circumstances could be seen as declaring Sunday to be the official day of rest, regardless of whether it was so observed by the defendant. To avoid "constitutional doubts," the court must reject this construction of the statute...