9th Circuit Grants En Banc Review In Court Holding Cell Headscarf Case [corrected]

CBS 5 reported yesterday that the 9th Circuit Court of Appeals has granted en banc review in Khatib v. County of Orange. In the case, the 9th Circuit 3-judge panel, by a 2-1 vote concluded that a court house holding cell is not covered by the Religious Land Use and Institutionalized Persons Act. It therefore upheld the dismissal of a RLUIPA lawsuit filed by a Muslim woman who, on two occasions in a single day when the court was dealing with her probation violation, was required to remove her hijab (headscarf) for security reasons.(See prior posting.) [Note- an earlier version of this posting referred to the wrong circuit.]

Raelians Sue Pope Benedict XVI In British Court

In Great Britain, the European Raelian Movement has filed a lawsuit in Britain's High Court against Pope Benedict XVI charging him with violating international human rights law and committing genocide in Africa by continuing to claim that condoms do not prevent the spread of AIDS. According to a press release from the Raelian Movement, the complaint also alleges that the Vatican organized a disinformation campaign against Raelians in retaliation for the Raellians' attempt to call attention to the Catholic Church's child sex abuse scandal. Cardinal Ratzinger (now Pope Benedict) was in charge of dealing with the sex abuse scandal in the 1990's. The Raelian Movement believes that all life on earth was created thousands of years ago by extraterrestrial scientists  who were mistaken by our ancestors for gods.

Justice Department Sues California City Under RLUIPA Over Buddhist Temple Use Permit

A press release by the U.S. Department of Justice yesterday reports that the federal government has filed a lawsuit against the city of Walnut, California, charging that it violated the Religious Land Use and Institutionalized Persons Act when it refused to issue a conditional use permit to the Chung Tai Zen Center for it to operate a Buddhist house of worship on land it owned. The complaint charges that the Center's application was treated differently from that of other religious and non-religious groups. Until its denial in 2008 of the Center's application, the city had not refused to issue a conditional use permit to build, expand or operate a house of worship since 1980.

11th Circuit Rejects Free Exercise Challenge To City's Business Regulation

In Manseau v. City of Miramar, (11th Cir., Sept. 10, 2010), the 11th Circuit Court of Appeals dismissed a free exercise claim brought against the city of Miramar, Florida by a couple who were fined for a number of code violations for operating a commercial roofing business out of their residence.  Plaintiffs claimed that the citations and fines made them unable to practice their religion which was funded by their roofing business. The court, however, held that the code provisions regulating businesses were valid neutral laws of general application whose effect on religion was merely incidental.

Senegalese Court Convicts Muslim Holy Men of Violating Ban on Use of Children For Begging

Under pressure from human rights groups and U.S. foreign aid agencies, authorities in Senegal last month reversed a long-enrenched custom and banned marabouts-- Muslim holy men-- from enlisting children to beg for them.  Then, according to yesterday's New York Times, last week for the first time seven marabouts were convicted by a court in Dakar of violating the ban. They were given a rather light sentence of six months probation and a fine, but many see the move as revolutionary.  Human Rights Watch has estimated that there are as many as 50,000 children (called talibes), some as young as 4, on the streets of Senegal weaving in and out of traffic to beg for coins that they must then turn over to marabouts where they live. Supposedly the children are enrolled in schools teaching the Qur'an, but often they learn little. Observers are not sure whether last week's convictions are the beginning of a real enforcement effort or merely a symbolic gesture. The Koranic Teachers Association in the town of Louga called for Sengalese President Abdoulaye Wade to resign if the government insists on enforcing the ban on talibes.

Texas Gubernatorial Candidates Give Views On Teaching of Creationism/ Intelligent Design

The San Angelo (TX) Standard Times yesterday published responses of of Texas Gov. Rick Perry and his opponent in the November election, Houston Mayor Bill White, to questions on K-12 Education.  Both were asked: "Explain where you stand on evolution-creationism being taught in the schools."  Perry replied:

I am a firm believer in intelligent design as a matter of faith and intellect, and I believe it should be presented in schools alongside the theories of evolution. The State Board of Education has been charged with the task of adopting curriculum requirements for Texas public schools and recently adopted guidelines that call for the examination of all sides of a scientific theory, which will encourage critical thinking in our students, an essential learning skill.

His challenger, Bill White responded:

Educators and local school officials, not the governor, should determine science curriculum.

[Thanks to Scott Mange for the lead.] 

Turkish Voters Approve Constitutional Changes That Will Pack Court To Approve More Religious Accommodation

In Turkey yesterday, a 58% vote of the electorate approved a package of constitutional changes. Among them were ones that increase the number of judges on the country's Constitutional Court and give Parliament a greater say in appointing judges.  Yesterday's Toronto Globe & Mail reports that these changes pave the way for appointment of judges who will not strike down legislation accommodating religious practices, such as giving women the right to wear head scarves in universities.

Ministerial Exception Applies Regardless of Employees Subjective Intent

In Green v. Concordia University, 2010 U.S. Dist. LEXIS 94168 (D OR, Sept. 8, 2010), adopting a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 94176, June 23, 2010), an Oregon federal district court held that the ministerial exception requires dismissal of a of plaintiff's claim that she was improperly denied admission on the basis of her age and other factors to the Director of Christian Education program of Concordia University, a Christian liberal arts university.  The court held that the university's decision was based on criteria that are largely religious.  It rejected plaintiff's argument that the ministerial exception did not apply to her Age Discrimination in Employment Claim because she intended to use her DCE certification to teach in public schools. Subjective intent of the employee is not the test. Instead the focus is on the characteristics of the position.

Recent Articles of Interest

From SSRN:

• Kevin J. Worthen, The NCAA and Religion: Insights About Non-State Governance from Sunday Play and End Zone Celebrations, (Utah Law Review, Vol. 2010, pp. 123-140).
• Michael W. McConnell, Schism, Plague, and Late Rites in the French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise Case, (September 10, 2010).

From Bepress:

• Elimelech Westreich, Family Law and the Challenge of Modernity: Debate about Levirate Marriage among Moroccan Sages, (Tel Aviv University Legal Working Paper Series. Tel Aviv University Law Faculty Papers. Working Paper 121, Aug. 2010).

From SmartCILP:

• Onder Bakircioglu, A Socio-legal Analysis of the Concept of Jihad [Abstract], 59 International & Comparative Law Quarterly 413-440 (2010).
• Debbie N. Kaminer, Religious Conduct and the Immutability Requirement: Title VII's Failure to Protect Religious Employees in the Workplace, 17 Virginia Journal of Social Policy & Law 453-485 (2010).
• Christian Realism and Public Life: Catholic and Protestant Perspectives. Articles by Victor C. Romero, Susan J. Stabile and Richard M. Esenberg. 7 University of St. Thomas Law Journal 310-401 (2010).
• Journal of Law and Religion, Vol 25, No. 3 (2009-10) has recently been published.

Recent Prisoner Free Exercise Cases

In Beebe v. Birkett, 2010 U.S. Dist. LEXIS 91690 (ED MI, Sept. 3, 2010), a Michigan federal district court, adopting a magistrate's recommendations, dismissed several claims by a Jewish prisoner, but allowed him to move ahead with a portion of his as-applied challenge to the prison's kosher meal policy. UPDATE: The magistrate's recommendation is at 2010 U.S. Dist. LEXIS 98186, Feb. 22 2010.


In Maier v. Wilson, 2010 U.S. Dist. LEXIS 92732 (D MT, Sept. 7, 2010), a Montana federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 92848, Aug. 5, 2010) and held that plaintiff suffered no injury from the prison's failure to post a list of disallowed religious books; that neither having to choose between going to his prison job or weekly Wicca services nor the prison's restrictions on tarot cards imposed a substantial burden on plaintiff's free exercise; that plaintiff was given adequate opportunity to practice his Wicca religion; and that treatment of Native Americans did not create an Establishment Clause or equal protection violation.


In Roberts v. Shearin, 2010 U.S. Dist. LEXIS 92512 (D MD, Sept. 7, 2010), a Maryland federal district court dismissed an inmate's complaint that his free exercise rights were violated by a temporary ban on inmates receiving hard bound books, including religious books. It dismissed his complaint that he was not permitted to practice his religion of Kinteic Science because he had not taken any steps to have his religion and his requested accommodation recognized.


Mintun v. Peterson, 2010 U.S. Dist. LEXIS 92489 (D ID, Sept. 3, 2010), involved a complaint by a Christian inmate who was gay about the anti-gay environment in the non-denominational fellowship service. He was barred by officials from attending that service while his complaints were investigated and was refused the right to create a separate service for gay Christians. The court dismissed the complaint, holding narrowly that plaintiff had not shown that other eight available Christian religious services were inadequate or that other inmates would attend a service for gay Christians.


In Verducci v. Marsh, 2010 U.S. Dist. LEXIS 92712 (ED CA, Aug. 17, 2010), a California federal magistrate judge dismissed, with leave to file a more specific amended complaint, a county jail detainee's complaint that he was denied access to Jewish religious services, Jewish reading material and a kosher diet.


In Hankins v. Pennsylvania, 2010 U.S. Dist. LEXIS 92743 (WD PA, Sept. 7, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (Hankins v. Beard, 2010 U.S. Dist. LEXIS 92864, July 29, 2010) and refused to dismiss an inmate's complaint that while confined in county jail he was not provided a religious representative and could not keep religious materials in his cell.


In Crump v. Prelesnik, 2010 U.S. Dist. LEXIS 93178 (WD MI, Sept. 8, 2010), plaintiff alleged that prison authorities infringed his religious rights in a number of ways through retaliatory actions. These included a cell search that left his Qur'an and prayer rug face down on a muddy floor; requiring him to roll down and drag his pants in violation of a religioius prohibition; and delaying plaintiff's request for hygiene items that caused him to be unclean for his daily prayers. These retaliation claims are apparently among those that a Michigan federal district court permitted plaintiff to continue to pursue.


In Adkins v. Cabell, 2010 U.S. Dist. LEXIS 93290 (SD WV, Sept. 7, 2010), a West Virginia federal district court adopted a magistrate's recommendations and dismissed a complaint by a Native American prisoner claiming verbal abuse and harassment over the practice of his religion, as well as a claim of physical abuse as retaliation for suing.


In Waff v. Reisch, 2010 U.S. Dist. LEXIS 93012 (D SD, Sept. 7, 2010), a South Dakota federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 93101, July 30, 2010), and dismissed an inmate's complaint that his religious rights were infringed when he was temporarily taken off the kosher diet plan for taking non-kosher food from another inmate's tray and buying non-kosher food from the commissary. Any claim for injunctive relief is now moot because the sanction policy has been changed. Claims for damages against the state are barred by the 11th Amendment. And plaintiff failed to show how the requirement that he again fill our the "request for religious diet" form violates his rights.


In Holliman v. Paquin, 2010 U.S. Dist. LEXIS 93747 (WD WI, Sept. 7, 2010), a Wisconsin federal district court required an inmate to separate his religious infringement claims into a separate lawsuit from unrelated retaliation claims.  Plaintiff alleged establishment clause claims relating to religious symbols in the prison and use of a state employee to lead Christian Bible study.  Plaintiff's free exercise claims challenged forcing Muslims to pray in a room with religious symbols and staff walking through Jumu'ah services.

Potential Witnesses In Canadian Polygamy Challenge Seek Anonymity

In Canada last year, British Columbia's Attorney General asked the province's Supreme Court to rule on whether its anti-polygamy law is consistent with Canada's Charter of Rights and Freedom.  The move came after unsuccessful attempts to prosecute two FLDS Church leaders. (See prior posting.) Now, according to the Winnipeg Free Press, a bishop of the FLDS Church has filed a motion with the Supreme Court seeking protection from prosecution for FLDS members in polygamous relationships that testify in the case. Lawyer Robert Wickett who represents the bishop says that testimony by people who have led meaningful lives in a polygamous community is essential to counter affidavits by former FLDS members detailing the harm that flows from polygamy. But the FLDS members want to use pseudonyms and sit behind screens when they testify, or testify by teleconference, to protect them from identification for future prosecution. The government says this would make it more difficult to cross examine the witnesses.

South African Court Bars Bible Burning Counterprotest

Spero News reports that on Friday, a South African judge barred a South African businessman and law student,  Mohammed Vawda, from organizing a Bible burning day to protest the then-planned Quran burning by Rev. Terry Jones in Florida. The South African lawsuit was filed by an Islamic intellectual organization know as The Scholars of Truth. Plaintiffs convinced South Gautneg High Court, Judge Sita Kolbethat the planned Bible burning would be insulting to all religions. Defendant Vawda said that now he had been "enlightened by the judge who said that by burning the Bible, I am also burning the Qur’an because we share the same prophets."

High Schooler Says Nose Stud Is Religious Expression

In Johnston County, North Carolina, Clayton High School freshman Ariana Iacono is in a fight with school officials over the school's dress code. The student, who along with her mother is a member of the Church of Body Modification says her wearing a nose stud is an expression of her religious beliefs. WTVD News reported Friday that that a minister of the church, Richard Ivey, explains: "We believe that the mind body soul are all one entity and that by modifying the body, you can bring the mind and soul into harmony." Student Iacono says the nose stud helps her self esteem after years of abuse. However apparently the school district's lawyer has concluded that the nose stud is not a necessary part of Iacono's religion.

Today Is 60th Anniversary of JFK's Speech Dispelling Concern Over Catholic As President

Today is the 60th anniversary of the historic speech (full text and audio) by then presidential candidate John F. Kennedy to the Greater Houston Ministerial Association aimed at dispelling concerns about a Catholic becoming President. Here are a few excerpts:

I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishoners for whom to vote--where no church or church school is granted any public funds or political preference--and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him....

Whatever issue may come before me as President--on birth control, divorce, censorship, gambling or any other subject--I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come--and I do not concede any conflict to be even remotely possible--when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

But I do not intend to apologize for these views to my critics of either Catholic or Protestant faith--nor do I intend to disavow either my views or my church in order to win this election.

If I should lose on the real issues, I shall return to my seat in the Senate, satisfied that I had tried my best and was fairly judged. But if this election is decided on the basis that 40 million Americans lost their chance of being President on the day they were baptized, then it is the whole nation that will be the loser, in the eyes of Catholics and non-Catholics around the world, in the eyes of history, and in the eyes of our own people.

Fred Schwartz writes in yesterday's National Review on the background and impact of the speech. Meanwhile, former Pennsylvania Senator Rick Santorum, speaking last Thursday at the University of St. Thomas in Houston (full text of remarks), delivered a rare criticism of Kennedy's historic speech, arguing that "Kennedy chose not just to dispel fear, he chose to expel faith."

Appellate Court Grants Temporary Stay of Injunction Against Stem Cell Guidelines

On Thursday, the Court of Appeals for the D.C. Circuit granted a temporary stay (full text of order) of a district court order that had enjoined the Department of Health and Human Services from applying the Obama administration's guidelines expanding the availability of grants for embryonic stem cell research. (See prior posting.)  The court called for completion of briefing by the parties on the merits of a motion to stay the district court's injunction by Sept. 20.  Meanwhile, according to Science Insider, the NIH is expediting grant applications hoping to be able to disburse funds for 24 ongoing grants up for renewal in September and for 20 grant proposals that had passed the first stage of peer review, all before the Sept. 20 deadline that could bring reinstatement of the injunction. Meanwhile on Thursday, plaintiffs challenging the guidelines filed a motion for summary judgment with the district court, accompanied by a 64-page memorandum in support of their position. (Full text of motion and supporting memorandum.)

Obama Presses For Tolerance and Free Exercise Rights For U.S. Muslims

The U.S. today marked the ninth anniversary of 9-11, following what the New York Times described as an "impassioned call" by President Obama for better relations between Muslims and non-Muslims.  At his news conference on Friday (full text), the President gave lengthy answers to three separate questions on attitudes toward Muslims in the U.S.  Here is the Q&A:

Q    ... Nine years after the September 11th attacks, why do you think it is that we are now seeing such an increase in suspicion and outright resentment of Islam, especially given that it has been one of your priorities to increase -- to improve relations with the Muslim world?

THE PRESIDENT:  I think that at a time when the country is anxious generally and going through a tough time, then fears can surface, suspicions, divisions can surface in a society. And so I think that plays a role in it.

One of the things that I most admired about President Bush was after 9/11, him being crystal-clear about the fact that we were not at war with Islam.  We were at war with terrorists and murderers who had perverted Islam, had stolen its banner to carry out their outrageous acts.  And I was so proud of the country rallying around that idea, that notion that we are not going to be divided by religion; we’re not going to be divided by ethnicity.  We are all Americans.  We stand together against those who would try to do us harm. 

And that’s what we’ve done over the last nine years.  And we should take great pride in that.  And I think it is absolutely important now for the overwhelming majority of the American people to hang on to that thing that is best in us, a belief in religious tolerance, clarity about who our enemies are -- our enemies are al Qaeda and their allies who are trying to kill us, but have killed more Muslims than just about anybody on Earth.  We have to make sure that we don't start turning on each other.

And I will do everything that I can as long as I am President of the United States to remind the American people that we are one nation under God, and we may call that God different names but we remain one nation.  And as somebody who relies heavily on my Christian faith in my job, I understand the passions that religious faith can raise.  But I’m also respectful that people of different faiths can practice their religion, even if they don't subscribe to the exact same notions that I do, and that they are still good people, and they are my neighbors and they are my friends, and they are fighting alongside us in our battles.

And I want to make sure that this country retains that sense of purpose.  And I think tomorrow is a wonderful day for us to remind ourselves of that....

Q    ... [W]ere you concerned at all when you -- when the administration had Secretary of Defense Gates call this pastor in Florida that you were elevating somebody who is clearly from the fringe?...

THE PRESIDENT:  With respect to the individual down in Florida, let me just say -- let me repeat what I said a couple of days ago.  The idea that we would burn the sacred texts of someone else’s religion is contrary to what this country stands for.  It’s contrary to what this country -- this nation was founded on.  And my hope is, is that this individual prays on it and refrains from doing it.

But I’m also Commander-in-Chief, and we are seeing today riots in Kabul, riots in Afghanistan, that threaten our young men and women in uniform.  And so we’ve got an obligation to send a very clear message that this kind of behavior or threats of action put our young men and women in harm’s way.  And it’s also the best imaginable recruiting tool for al Qaeda.

And although this may be one individual in Florida, part of my concern is to make sure that we don’t start having a whole bunch of folks all across the country think this is the way to get attention.  This is a way of endangering our troops -- our sons and daughters, fathers and mothers, husbands and wives who are sacrificing for us to keep us safe.  And you don’t play games with that.

So I hardly think we’re the ones who elevated this story.  But it is, in the age of the Internet, something that can cause us profound damage around the world, and so we’ve got to take it seriously....

Q    Thank you, Mr. President.  I wonder if I can get you to weigh in on the wisdom of building a mosque a couple of blocks from Ground Zero.  We know that the organizers have the constitutional right.  What would it say about this country if they were somehow talked out of doing that?  And hasn’t the Florida minister’s threat to burn a couple hundred copies of the Koran, hasn’t the threat itself put American lives in danger, sir?

THE PRESIDENT: Well, on the second -- on your second question, there’s no doubt that when someone goes out of their way to be provocative in ways that we know can inflame the passions of over a billion Muslims around the world, at a time when we’ve got our troops in a lot of Muslim countries, that's a problem.  And it has made life a lot more difficult for our men and women in uniform who already have a very difficult job.

With respect to the mosque in New York, I think I’ve been pretty clear on my position here, and that is, is that this country stands for the proposition that all men and women are created equal; that they have certain inalienable rights -- one of those inalienable rights is to practice their religion freely. And what that means is that if you could build a church on a site, you could build a synagogue on a site, if you could build a Hindu temple on a site, then you should be able to build a mosque on the site.

Now, I recognize the extraordinary sensitivities around 9/11.  I’ve met with families of 9/11 victims in the past.  I can only imagine the continuing pain and anguish and sense of loss that they may go through.  And tomorrow we as Americans are going to be joining them in prayer and remembrance.  But I go back to what I said earlier:  We are not at war against Islam.  We are at war against terrorist organizations that have distorted Islam or falsely used the banner of Islam to engage in their destructive acts. 

And we’ve got to be clear about that.  We’ve got to be clear about that because if we’re going to deal with the problems that Ed Henry was talking about, if we’re going to successfully reduce the terrorist threat, then we need all the allies we can get.  The folks who are most interested in a war between the United States or the West and Islam are al Qaeda.  That’s what they’ve been banking on. 

And fortunately, the overwhelming majority of Muslims around the world are peace-loving, are interested in the same things that you and I are interested in:  How do I make sure I can get a good job?  How can I make sure that my kids get a decent education?  How can I make sure I’m safe?  How can I improve my lot in life?  And so they have rejected this violent ideology for the most part -- overwhelmingly.

And so from a national security interest, we want to be clear about who the enemy is here.  It’s a handful, a tiny minority of people who are engaging in horrific acts, and have killed Muslims more than anybody else.

The other reason it’s important for us to remember that is because we’ve got millions of Muslim Americans, our fellow citizens, in this country.  They’re going to school with our kids.  They’re our neighbors.  They’re our friends.  They’re our coworkers.  And when we start acting as if their religion is somehow offensive, what are we saying to them? 

I’ve got Muslims who are fighting in Afghanistan in the uniform of the United States armed services. They’re out there putting their lives on the line for us.  And we’ve got to make sure that we are crystal-clear for our sakes and their sakes they are Americans and we honor their service.  And part of honoring their service is making sure that they understand that we don’t differentiate between them and us.  It’s just us. 

And that is a principle that I think is going to be very important for us to sustain.  And I think tomorrow is an excellent time for us to reflect on that.

Meanwhile today, according to CNN, Rev. Terry Jones of the Dove World Outreach Center in Gainseville, Florida backed off his plans to burn copies of the Qur'an. The New York Times reported today on the efforts of many in Gainesville to repudiate the anti-Muslim threats by Jones.

British Sikh Sues Polish Border Guards Over Airport Search

Polskie Radio today reports that a British Sikh has filed suit (apparently in Polish courts) against  Polish border guards who required him to remove his turban during screening at the International Frederic Chopin Airport. Airport procedures call for security personnel to manually touch the turban and then use a special detector instead of requiring removal. Plaintiff, Shaminder Puri, who works for an NGO and the EU, asked the Polish ambassador to India and the head of Poland's Border Guards to investigate, but receive no satisfaction. Any damages Puri recovers will be donated to a charity for children who suffer from leukemia.

Algerian Police Charge Ten Men For Eating In Restaurant In Daytime During Ramadan

According to yesterday's Jerusalem Post, Algerian authorities in the town of Akbou have arrested ten men on charges of mocking Ramadan. The men were picked up in a restaurant in the province of Bejaya when neighbors complained they were desecrating Ramadan by eating during daylight hours. The restaurant owner said police entered the restaurant while its curtain was closed.  Human rights groups say the men have not committed any crime. All of the men have been released from jail pending a verdict expected to be handed down in November.

President Obama Sends Rosh Hashanah Greetings

Yesterday the White House released a statement from President Obama sending new year's greetings to Jews in the U.S. and around the world who celebrate Rosh Hashanah beginning this evening.  His statement (full text) said in part:

Rosh Hashanah marks the beginning of the spiritual calendar and the birth of the world....  At a time when too many of our friends and neighbors are struggling to keep food on the table and a roof over their heads, it is up to us to do what we can to help those less fortunate. At a time when prejudice and oppression still exist in the shadows of our society, it is up to us to stand as a beacon of freedom and tolerance and embrace the diversity that has always made us stronger as a people. And at a time when Israelis and Palestinians have returned to direct dialogue, it is up to us to encourage and support those who are willing to move beyond their differences and work towards security and peace in the Holy Land. 

Court Dismisses Complaint Over Homeowners' Association Order To Remove Cross

In Weatherspoon v. Provincetowne Master Owners Association, 2010 U.S. Dist. LEXIS 92187 (D CO, Sept. 2, 2010), a Colorado federal district court dismissed on collateral estoppel grounds a lawsuit charging, among other things, that a homeowners' association violated plaintiff's  free exercise rights when it enforced a covenant against her, requiring her to take down an 8-foot tall cross she had erected in her yard. A prior state court proceeding determined that in placing the cross in her yard without prior approval, the homeowner violated a religiously-neutral neighborhood covenant of general applicability.

Court Refuses To Lift Preliminary Injunction Against Stem Cell Funding Guidelines

D.C. federal district judge Royce Lamberth yesterday issued an order in Sherley v. Sebelius (full text) refusing to lift, pending appeal, his preliminary injunction against applying the Department of Health and Human Services' guidelines expanding permitted federal funding of human embryonic stem cell research. (See prior posting.)  Observing that "defendants are incorrect about much of their 'parade of horribles' that will supposedly result from the Court's preliminary injunction," the Order indicates that the preliminary injunction does not affect previously funded projects and does not deal with whether NIH could return to the narrower Bush administration guidelines. AFP reports on the decision.

Suit Charges Dearborn High School Principal With Discrimination Against Non-Muslims

A discrimination lawsuit was filed late last month by two Christian high school teachers against Imad Fadlallah, the now-retired principal of Dearborn, Michigan's Fordson High School, and against the school district. The complaint (full text) in Purcell v. Fadlallah, (ED MI, filed 8/27/2010), alleges that Fadlallah used his position as principal to promote Islam and to systematically weed out teachers, coaches and employees who are not Muslim or Arab. The complaint also makes repeated references to ties between Fadlallah's family and the terrorist group, Hezbollah. Among the incidents of harassment against non-Muslim teachers described in the complaint were scheduling classes for one plaintiff, a science and math teacher who was a diabetic, at the times he needed to eat and administer insulin. It charges that Fadlallah harassed the second plaintiff, a business and marketing teacher, by, among other things, assigning her to teach two classes that met at the same time at opposite ends of the school building. The 34-page complaint alleges numerous other incidents of harassment and discrimination in violation of the First and 14th Amendments and of various statutory and state constitutional protections. The lawyer who filed the suit on behalf of the teachers has issued a press release summarizing plaintiff's claims.

Secretary of State Clinton Hosts State Department Iftar

Secretary of State Hillary Rodham Clinton last night hosted the State Department's annual Iftar (Ramadan break fast). In her remarks (full text), she said in part:

Ramadan teaches and reinforces values that are honored by millions and tens and hundreds of millions of people from other faiths and beliefs. So tonight, while we celebrate together, let us consider how we can build broader and deeper bonds of mutual understanding, mutual respect and cooperation among people of all faiths in the year to come...

We sit down together for this meal on a day when the news is carrying reports that a pastor down in Gainesville, Florida plans to burn the Holy Qu’ran on September 11th. I am heartened by the clear, unequivocal condemnation of this disrespectful, disgraceful act that has come from American religious leaders of all faiths, from evangelical Christians to Jewish rabbis, as well as secular U.S. leaders and opinion-makers. Our commitment to religious tolerance goes back to the very beginning of our nation. Many of you know that in 1790, George Washington wrote to a synagogue in Newport, Rhode Island, that this country will give “to bigotry no sanction, to persecution no assistance.”

Among those attending the Iftar were 70 young American Muslim leaders. The Hill reported last week on the State Department's plans for yesterday's event.  

Court Dismisses Christian Pastors' Challenge To Hate Crimes Law

In Glenn v. Holder, (ED MI, Sept. 7, 2010), a Michigan federal district court dismissed on standing and ripeness grounds a challenge to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that had been brought by several Christian pastors. Plaintiffs claim that the law interferes with their right to express opposition to homosexuals and homosexual behavior.  They allege that the Act is vague and overbroad, and will chill individuals from expressing their views that "homosexual orientation is morally wrong."  The court however did not reach the merits of those claims, finding instead that plaintiffs had failed to demonstrate that they faced a credible threat of prosecution under the Act.  No case or controversy exists because plaintiffs failed to allege that they intend to willfully cause bodily injury to anyone. The court also concluded that plaintiffs' claims are not ripe. They merely present hypothetical situations that plaintiffs believe will be investigated or prosecuted. Bay City (MI) Times reports on the decision.

Religion Becoming An Issue In Hawaii's Democratic Gubernatorial Primary

Religion is beginning to play an important role in Hawaii's Sept. 18 gubernatorial primary election. KITV News yesterday reported on ads and flyers by a group calling itself Island Values. Supporting Democratic candidate Mufi Hannemann over his opponent in the Democratic primary, Neil Abercrombie, flyers charge Abercrombie with mocking the faith-based community.  At issue is Abercrombie's support for same-sex civil unions. Gov. Linda Lingle vetoed a civil union bill this summer. (See prior posting.) An Island Values ad urges Christians who would otherwise vote in the Republican primary to instead take a Democratic ballot to vote for Hannemann.  Their radio ad says: "There are acceptable and unacceptable candidates. Neil Abercrombie is unacceptable. He declares no religious affiliation." Abercrombie says he was confirmed as an Episcopalian.

Tajikistan Continues Restrictions on Religion While Tajik Muslims Prefer Religious Dispute Settlement

Forum 18 last week reported that the government of Tajikistan is imposing ever tighter controls on religious activity in the country whose majority religion is Islam.  Invoking the ban on political organizations establishing mosques, the government has ordered the Islamic Revival Party to stop using its offices for prayers-- though the ban will not be enforced until after Ramadan. The country's Religious a\Affairs Committee has reaffirmed the 2009 ban on children taking part in the hajj pilgrimage to Mecca. Just before the beginning of Ramadan, authorities in the town of Panjakent banned the broadcast of Muslim prayers over loud speakers. Also a case against 17 Jehovah's Witnesses remains open.

Meanwhile, Radio Free Europe today reports that Muslims in Tajikistan are increasingly resorting to local mullahs who apply Sharia law to resolve disputes, particularly issues growing out of divorces. Individuals find this route faster and cheaper than state courts, and prefer the personalized approach of mullahs.  Also some state courts officials are corrupt, requesting bribes for specific decisions.

Petraeus Says Florida Church's "Burn a Qur'an Day" Could Endanger U.S. Efforts In Afghanistan

According to a report by ABC News yesterday, the plans of a pastor in Florida to hold a "Burn a Qur'an Day" at his church on the anniversary of 9-11 is now seen as a danger to U.S. troops in Afghanistan. (See prior posting.)  Some 500 people in downtown Kabul yesterday protested the plans of of Pastor Terry Jones of the Dove World Outreach Center in Gainesville, Florida. Gen. David Petraeus, the top U.S. commander in Afghanistan, said he is outraged by the Florida church's plans, and predicted that it could endanger troops and the overall U.S. effort in Afghanistan.

USPS Issues Postage Stamp Honoring Mother Teresa

On Sunday, the U.S. Postal Service issued a postage stamp honoring Mother Teresa.  Announcing the stamp last week, USPS said:

The U.S. Postal Service will pay tribute to Mother Teresa, who received the Nobel Peace Prize in 1979 for her humanitarian work. Noted for her compassion toward the poor and suffering, Mother Teresa, a diminutive Roman Catholic nun and honorary U.S. citizen, served the sick and destitute of India and the world for nearly 50 years.

According to a press release on Sunday, the stamp was issued during a special ceremony at the Basilica of the National Shrine of the Immaculate Conception in Washington, DC.  Postmaster General John Potter spoke at the ceremony. He was joined by a number of Catholic clergy, including Archbishop Pietro Sambi, apostolic nuncio to the United States. [Thanks to Pew Sitter for the lead.]

American Muslims Distressed Over Hostile Attitudes

Today's New York Times carries a front page article titled American Muslims Ask, Will We Even Belong?.  It focuses on Muslim distress over the hostile reactions triggered by the proposed Muslim cultural center near Ground Zero. Many Muslims interviewed are frightened  "to learn that the suspicion and even hatred of Muslims is so widespread."  According to reporter Laurie Goodstein, American Muslims:

liken their situation to that of other scapegoats in American history: Irish Roman Catholics before the nativist riots in the 1800s, the Japanese before they were put in internment camps during World War II. Muslims sit in their living rooms, aghast as pundits assert over and over that Islam is not a religion at all but a political cult, that Muslims cannot be good Americans and that mosques are fronts for extremist jihadis.

Eboo Patel, founder of Chicago's Interfaith Youth Core, says:

After Sept. 11, we had a Republican president who had the confidence and trust of red America, who went to a mosque and said, "Islam means peace," and who said "Muslims are our neighbors and friends," and who distinguished between terrorism and Islam. Now, unlike Mr. Bush then, the politicians with sway in red state America are the ones whipping up fear and hatred of Muslims. There is simply the desire to paint an entire religion as the enemy.

Israeli Politicians Debate Traditional Switch Off Daylight Savings Time For Yom Kippur

In Israel, members of the Knesset this week were engaged in debates over whether to continue the traditional practice in Israel of moving off daylight savings time beginning during the ten days between Rosh Hashanah and Yom Kippur. The motivation for the practice is to obtain an earlier sundown and thus end the Yom Kippur fast at an earlier hour-- though the move does not shorten the total number of hours in the day-long fast which would also begin earlier with the change. This year the Jewish High Holidays come particularly early. Yom Kippur falls on Sept. 18.  Business leaders say an early move to Standard Time costs the economy NIS 10M ($2.6M U.S.) and increases road accidents because of increased driving time in the dark. Israel is on Daylight Savings Time each year several weeks less than are the U.S. and Europe. Last week, some 100,000 Israelis signed an online petition urging the public to ignore the switch back to Standard Time. Interior Minister Eli Yishai suggested a compromise-- switch to Standard Time for Yom Kippur, and then go back to Daylight Savings Time the next week.

Department of Labor Blog Honors Ties Between Religion and Labor Movement

Today is Labor Day in the United States. On the official blog of the U.S. Department of Labor, Phil Tom, Director for DOL's Center for Faith-Based & Neighborhood Partnerships, recently posted his thoughts on Labor Day in a piece titled Keeping Faith In Labor. He writes in part:

Labor Day weekend is a time when faith communities and the labor movement celebrate their common bonds of equality, justice, dignity, and fair treatment for all workers. In fact, in 1909, the American Federation of Labor adopted the Sunday before Labor Day as "Labor Sunday" to honor the spirituality of the labor movement.

USA Today's Faith and Reason blog has more on Labor and religion.

Border Guard Survives Dismissal Motion In His Religious Discrimination Suit

In Israel v. Napolitano, (ND NY, Aug. 24, 2010), a New York federal district court refused to grant summary judgment to the Department of Homeland Security in a religious discrimination suit brought against it by a Jewish Customs and Border Protection Guard. Plaintiff Brian Israel alleged that over the course of his employment he was subjected to repeated anti-Semitic harassment by co-workers and supervisors, including swastikas being placed on his work locker. In 2007, Israel was fired, purportedly for his conduct following three separate altercations with the public.The court concluded, however, that "there is sufficient evidence from which a reasonable fact finder could conclude that Israel's removal resulted from religious discrimination." [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Patrick Parkinson, Kim Oates & Amanda Jayakody, Breaking the Long Silence: Reports of Child Sexual Abuse in the Anglican Church of Australia, (Ecclesiology, Vol. 6, No. 2, pp. 183-200, 2010).
• Robert A. Kahn, Tragedy, Farce or Legal Mobilization? The Danish Cartoons in Court in France and Canada, (U of St. Thomas Legal Studies Research Paper No. 10-21, 2010).
• Peter G. Danchin, Islam in the Secular Nomos of the European Court of Human Rights, University of Maryland Legal Studies Research Paper No. 2010-41, Sept. 1, 2010).
• Geoffrey P. Miller, Sovereignty and Conquest in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-61, Sept. 3, 2010).
• Wilbren Van der Burg, Legislation on Human Embryos: From Status Theories to Value Theories, (Erasmus Working Paper Series on Jurisprudence and Socio-legal Studies No. 10-03, Aug. 30, 2010).
• Joshua Kleinfeld, The Concept of Evil in American and German Criminal Punishment, (August 25, 2010).

From SmartCILP:

• Melissa Lewis, The Regulation of Kosher Slaughter in the United States: How to Supplement Religious Law So As to Ensure the Humane Treatment of Animals, 16 Animal Law Review 259-285 (2010).
• Alexandra Lang Susman, Strings Attached: An Analysis of the Eruv Under the Religion Clauses of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 9 University of Maryland Law Journal of Race, Religion, Gender & Class 93-134 (2009).

Recent Prisoner Free Exercise Cases

In Fairwell v. Cates, 2010 U.S. Dist. LEXIS 88856 (ED CA, Aug. 2, 2010), a California federal magistrate judge dismissed an inmate's free exercise and RLUIPA complaint with leave to amend and refile. Plaintiff set out numerous allegations of interference with his practice of Asatru/ Odinism, as well as an allegation of retaliation. However the complaint failed to adequately link particular defendants to specific alleged violations.

In Johnson v. Schoen, 2010 U.S. Dist. LEXIS 90053 (SD IL, Aug. 31, 2010), an Illinois federal district court held that a prisoner's allegation that a correctional officer refused to give him a Bible during his visit with his mother was insufficient to support a free exercise claim.

In Williams v. Beard, 2010 U.S. Dist. LEXIS 89492 (MD PA, Aug. 30, 2010), a Pennsylvania federal district court rejected a Muslim inmate's free exercise and RLUIPA challenges to disciplinary action that led to a loss of his kitchen job for offering prayers in an unauthorized area and failing to obey staff orders to stop.


In Walden v. Smith, 2010 U.S. Dist. LEXIS 90084 (ND IA, Aug. 30, 2010), an Iowa federal district court dismissed on qualified immunity grounds a Muslim prisoner's complaint that his free exercise rights were violated when, because of his security status, he was not permitted to participate in communal daily prayers during much of Ramadan in 2007. During those times, he was restricted to one communal prayer service per week and thus attended the Friday Jum'ah prayers.


In Kuperman v. Wrenn, (D NH, Aug. 27, 2010), a New Hampshire federal district court rejected challenges by an Orthodox Jewish prisoner to rules that limited the length of beards that can be grown for religious reasons to 1/4 inch. The court found that plaintiff had not sustained his free exercise, equal protection or RLUIPA claims.

In Grayson v. Schuler, 2010 U.S. Dist. LEXIS 89239 (SD IL, Aug. 30, 2010), an Illinois federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 89240, July 20, 2010) and granted summary judgment for defendant on qualified immunity grounds in connection with a claim by an inmate who was a member of the African Hebrew Israelite faith. Plaintiff argued that the prison's grooming policy violated his free exercise rights because he had taken the Nazarite vow that required him to grow his hair long.


In Shelton v. El Paso County, 2010 U.S. Dist. LEXIS 91248 (WD TX, Sept. 1, 2010), a Texas federal magistrate judge recommended dismissing an inmate's complaint that a county jail refused to allow him access to his hard cover Qur'an, failed to supply him with a soft cover version, denied him a prayer rug, did not give him access to a Muslim representative and denied him a pork-free diet. Plaintiff asserted free exercise, RLUIPA, establishment Clause and equal protection claims.

In Ortiz v. Baker, 2010 U.S. Dist. LEXIS 91430 (D NV, July 27, 2010), a Nevada federal court judge dismissed, with leave to refile an amended complaint, a suit by a Jewish prisoner that merely alleged, without elaboration that defendants refused to permit him to practice Judaism and receive a kosher diet in violation of his First Amendment rights.

In Montague v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 91616 (MD TN, Sept. 2, 2010), a Tennessee federal magistrate judge recommended denying a Muslim inmate's request for a temporary restraining order to permit Muslim inmates to pool funds to purchase requested food for Eid ul-Fitr and Eid Adha banquets.

In Soria v. Skolnik, 2010 U.S. Dist. LEXIS 91543 (D NV, Aug. 10, 2010), a Nevada federal district court permitted an inmate to proceed with his claim that his rights under the free exercise clause, RLUIPA and the equal protection clause were violated by a prison policy requiring that for an inmate to receive a kosher diet, he must be recognized as a practicing Jew by the Aleph Institute or other recognized Jewish organization.

Maryland High Court Hears Arguments On Refusal To Reschedule Trial To Accommodate Religious Holiday

Last week, Maryland's Court of Appeals-- the state's highest court-- heard oral arguments in Neustadter v. Holy Cross Hospital of Silver Spring, Inc., posing the question of whether the religious freedom rights of a plaintiff in a medical malpractice case were infringed when the trial court refused to reschedule the trial in the case.  (Video of full oral argument). According to Saturday's Baltimore Sun, plaintiff, an Orthodox Jew, was denied a postponement or a two-day suspension of the trial for the Jewish holiday of Shavuot. Plaintiff did not attend those two days of trial and ordered his attorney not to work on his behalf on those days either. This led to crucial testimony by defendants' witnesses going unchallenged.

In Australia, Challenge Planned To School Chaplaincy Program

WA Today reports that in Australia, Queensland parent Ron Williams is planning to file suit to challenge the constitutionality of the country's school chaplaincy program.  Politicians have pledged to find $220 million to fund another 1000 chaplains in the schools. Meanwhile the Australian Psychological Society says the program is dangerous to children's mental health because many children are seeking out chaplains rather than psychologists to deal with mental health problems. At least one school even replaced its psychologist with a chaplain to save money. Program rules bar school chaplains from proselytizing.

Israeli Labor Court Says Private Catholic School Can Ban Muslim Teacher From Wearing Hijab

In Israel, the Jerusalem District Labor Court upheld the dress code requirements of a private Catholic school that barred a Muslim teacher from wearing a hijab (headscarf).  Today's Jerusalem Post reports that teacher Nada Nimri, who taught Arabic and Islam at the 120-year old Schmidt School for Girls, operated by the Mary Ward Sisters and owned by the Diocese of Cologne, decided after 27 years of teaching without wearing a hijab that she wanted to begin wearing one.  The school, which has both Catholic and Muslim students, enforces its dress code "in order to create uniformity between the students and teachers from Muslim and Christian backgrounds." Nimri argued that the requirement violated the Equal Opportunity in Work Law and the Equal Rights for Women Law (legislative background). The Labor Court held that because the school was a private school operated by a religious order, its pedagogical and educational concerns outweighed the burden on Nimri's religious beliefs.

Suit Against Scientology Creates Conflict Between State and Federal Judges

Saturday's St. Petersburg (FL) Times reports on an unusual clash between a state and a federal court judge in a case involving the Church of Scientology. Six years ago, attorney and vocal critic of Scientology, Ken Dandar, settled a state court wrongful death suit he brought against the Church of Scientology on behalf of the family of Lisa McPherson. She died in 1995 after being under the care of Scientology members for 17 days. As part of the settlement, Dandar agreed never to take another case against the Church of Scientology. However last year, Dandar filed a suit in federal court against Scientology's Flag Service Organization and the twin sister of Scientology's world leader, David Miscavige. Church attorneys claimed this violated the earlier settlement agreement, and state court Circuit Judge Robert Beach agreed. He ordered Dandar to withdraw from the federal case.

In response, Dandar filed a motion to withdraw, but attached an affidavit from his client asking that Dandar stay on because no other attorney will take the case. Federal district judge Steven Merryday decided that Dandar had not violated the settlement agreement and refused to allow him to withdraw. In response, state court judge Beach held Dandar in contempt and imposed a judgment of $130,000 to be paid to the Church of Scientology. Scientology's attorney said that Dandar could have gotten off the federal case by filing an affidavit claiming a conflict of interest. This angered federal Judge Merryday who saw it as an attempt to deceive the court. So he got Scientology's attorney and Dandar to agree to stop all proceedings in state court, including attempts to collect the judgement, until both sides can present full arguments in federal court. State court judge Beach says he does not think that a federal district court has jurisdiction to overturn his contempt finding.

Court OKs Menorah Display, But Not Use of City Personnel and Equipment To Light It

In Chabad of Mid-Hudson Valley v. City of Poughkeepsie, (NY App. Div., Aug. 31, 2010), a New York state appellate court held that the display of an 18-foot high menorah on public property in downtown Poughkeepsie (NY) did not violate the Establishment Clause because:

in the immediate vicinity of the menorah, as well as throughout the downtown area, are garlands, wreaths, and white lights, which ... "typify the secular celebration of Christmas".... These nearby secular decorations serve to emphasize the cultural message of Chanukah as represented by the menorah.... The relevant context also includes the symbols in the public lot ... 250 east [or the menorah display] ... which ... included not only a Christmas tree but a display of the Muslim faith in the form of a star and crescent. Therefore while the menorah does not lose its its religious symbolism, its surroundings negate any appearance of government endorsement....

The court concluded however that the Establishment Clause was violated in "allowing the plaintiffs to use municipal funds, labor, and equipment for the nightly menorah lighting, even if the plaintiffs repaid the City for such labor and equipment" because this "would foster the perception of an unconstitutional excessive governmental entanglement with religion."

White House Press Secretary: President Is a Committed Mainstream Christian

The Christian Science Monitor reported last week that Fox News commentator Glenn Beck is accusing President Obama of not being a true Christian, but instead of believing in Marxist-based "Liberation Theology". The issue was raised by reporters at yesterday's White House press briefing (full text) in this exchange with press secretary Robert Gibbs:

Q    Robert, for the last four days, Glenn Beck has criticized the President for believing in liberation theology, which he calls a Marxist form of Christianity.  I’ve got two questions.  One, does the President, to your knowledge, even know what liberation theology is?

MR. GIBBS:  I don’t know the answer to that.  I will say this, Bill, a crude paraphrasing of an old quote, and that is people are entitled to their own opinion, as ill-informed as it may be, but they’re not entitled to their own facts.  The President is a committed mainstream Christian.  I don’t -- I have no evidence that would guide me as to what Glenn Beck would have any genuine knowledge as to what the President does or does not believe.

Q    When is he going back to church?

Q    So this Marxist form of Christianity --

MR. GIBBS:  Again, I can only imagine where Mr. Beck conjured that from.

Mormon Church Talks With China Will Likely Lead To Regualarizing LDS Operations In China

In Salt Lake City (UT) this week, the Mormon Church announced that recent meetings with an official of the People's Republic of China are expected to lead to regularizing of the Church's operations in China. However the Church will not be sending missionaries to China. Instead the initiative means that the way in which the Church can legally proceed with daily activities in China will be clarified.

Abercrombie Sued For Second Time Over Clash Between Its "Look Policy" and Wearing Hijab

For the second time in a year, the EEOC has brought a lawsuit against clothing retailer Abercrombie & Fitch over the conflict between its "Look Policy" for its personnel and the need of Muslim women to wear a headscarf (hijab). The EEOC announced on Wednesday that it had filed suit in a California federal district court on behalf of an 18-year old whose application for a job stocking merchandise at an Abercrombie Kids store in Milpitas, California was rejected. According to the complaint, the applicant wore a headscarf to the job interview. The Abercrombie manager asked her if she was a Muslim and required to wear a headscarf. When she replied she was, the manager marked "not Abercrombie look" on her application. In September 2009, the EEOC sued Abercrombie in an Oklahoma federal district court for rejecting a prospective employee because she wore a hijab. (See prior posting.) Also in February 2010, a complaint was filed with the EEOC on behalf of a Muslim stockroom worker who was fired from Hollister (an Abercrombie subsidiary) in San Mateo, California, because she insisted on wearing her hijab. (See prior posting.)

California Trial Court Affirms Religious Court's Decision On Ownership of Torah Scrolls

The Los Angeles Daily News reports that on Tuesday a Los Angeles trial court confirmed a ruling by a Jewish religious tribunal in a dispute over ownership of four Torah scrolls. The court agreed with the bet din (Jewish religious court) that the scrolls belong to the widow of Rabbi Norman Pauker, and that they were merely on loan to Pauker's former assistant, Rabbi Samuel Ohana. (See prior related posting.) That conclusion was based on a handwritten loan agreement seen as authentic by the bet din.  Ohana is using the scrolls at his Sherman Oaks, California synagogue. Pauker's widow wants her nephews, who are rabbis, to have the scrolls for their synagogues instead.  The challenge to the ruling of the bet din was based on the fact that the religious tribunal ordered the scrolls returned not to Pauker's widow personally, but to Pauker's orgainzation, Valley Mishkan Israel Congregation. Ohana claimed the religious panel had no authority to do that since the widow personally, not the Congregation, was the party to the action. (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Court Refuses To Mandamus California Governor and AG To Defend Prop 8

The Recorder reports that the Pacific Justice Institute on Tuesday filed a petition for a writ of mandamus in California's Third District Court of Appeal, seeking to force California's governor and attorney general to defend Proposition 8-- the state's ban on same sex marriage-- in court. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have said publicly that they do not intend to defend the constitutionality of the voter-approved state constitutional amendment. Brown is the Democratic candidate for governor this fall. Apex News Network reports that on Wednesday the court refused to grant the mandamus petition. The court gave no reasons for its decision.

Army Accommodates Third Sikh Recruit

According to a release yesterday by the Sikh Coalition, the U.S. Army, for the third time in less than a year, has agreed that a Sikh recruit may enlist and continue to wear his religiously-mandated turban along with unshorn hear and a beard. Simran Preet Singh Lamba was brought into the army in 2009 through the Military Accessions Vital to the National Interest (MAVNI) program-- designed to recruit non-citizens who have needed language skills.  Lamba, a native of India, speaks Punjabi and Hindi. The Army's ruling (full text) granting Lamba religious accommodation said the exemption from the Army's hair and grooming policy is granted for basic training and military occupational school, and emphasizes that accommodation requests are considered on a case-by-case basis.

Fraud Claim Against Diocese For Nondisclosure of Priest's Past Sex Abuse Is Dismissed

In Doe v. Diocese of New Ulm, (MN Ct. App., Aug. 31, 2010), the Minnesota Court of Appeals dismissed claims against a Catholic diocese by several women who alleged that they were sexually abused as children by a priest, Father David Rooney. The court held that while plaintiffs' fraud claims were not barred by the statute of limitations, the claims stemmed from the diocese's failure to disclose Father Rooney's history of sexual abuse.  Nondisclosure amounts to fraud only if the diocese had a duty to disclose, and plaintiffs did not allege or establish any such duty.  The court rejected plaintiffs' theory that the diocese engaged in an implied affirmative misrepresentation that it was safe for Father Rooney to be around children when the diocese permitted him to serve as a pastor and have unsupervised access to minor children.

7th Circuit Says University of Wisconsin Must Make Student Activity Fees Available To Religious Worship

In a 2-1 decision yesterday in Badger Catholic, Inc. v. Walsh, (7th Cir., Sept. 1, 2010), the U.S. 7th Circuit Court of Appeals invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing  or religious instruction by recognized student groups. The majority opinion, written by Judge Easterbrook, concluded that the University acted improperly in refusing to fund certain programs of a Catholic student group. The group, Badger Catholic, was formerly known as the Roman Catholic Foundation. The majority held that funding religious programs on the same basis as programs of other student groups does not violate the Establishment Clause, and that the University must fund  the Catholic group's programs if similar programs that espouse a secular perspective receive money. The majority held however that an award of damages is not available to plaintiffs. They may obtain only a declaratory judgment or injunction as relief.

Judge Williams, dissenting, argued that while it is not required to do so, the University may create a limited forum and exclude worship from it because the practice of religion does not serve the purpose of the limited forum. She argued that the majority's treatment of purely religious activities as being merely a species of dialog, discussion or debate "degrades religion and the practice of religion." She asks:

If religion, and the practice of one’s religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise clause of the First Amendment do?

The Chronicle of Higher Education reports on the decision.

City Relents On Collecting Tax Assessment That Violates Religious Beliefs of Hindu Woman

The city of Evanston, Illinois has decided that it will no longer press a Hindu woman and her mother for a $635 tax bill reflecting an assessment that the woman says violates her religious beliefs. At issue is the removal of a box elder tree that stands mostly on common property of Padma Rao's condominium.  She says that her Hindu religion prohibits the needless killing of any living thing. (See prior posting.) Yesterday's Evanston Review reports that a city attorney now says the city is in the process of removing Rao from the delinquent tax notification list it sends the county.

City Rents Space For Satanist Exorcism Ceremony

Oklahoma City's Parks and Recreation Department, saying that it cannot constitutionally discriminate on the basis of viewpoint in renting out its Civic Center auditoriums, has agreed to rent out its smallest room, seating 100, to a Satanist Church for a public exorcism ceremony.  ABC News today reports that James Hale, the leader of the Church of the IV Majesties, says he wants to erase  fears about Satanism by opening the ritual exorcism of God to the public. He says that the ceremony, which is "a parody of the Catholic rite of exorcism," is designed to extract the gods of the "right handed path," that is, traditional religions such as Christianity, Judaism and Islam. Tickets for the Oct. 21 exorcism are $15.