South Dakota High Court Rejects Jurisdiction Over Hutterite Colony Dispute; Lower Court Dissolves Colony

In Hutterville Hutterian Brethren, Inc. v. Waldner, (SD Sup. Ct., Nov. 17, 2010), the South Dakota Supreme Court held that it lacks jurisdiction over a dispute between two factions of the Hutterian Church, both claiming control of the non-profit corporation that controls the Hutterville Colony.  The dispute grew out of a 1992 schism in the church, after which each faction tried to obtain control of the corporate governance of Hutterville. The court held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite by the "true" church elders.  The First Amendment shields such issues from scrutiny by civil courts. Religious issues pervade the dispute, and corporate governance cannot be decided without extensive inquiry into religious doctrines and beliefs.

Meanwhile the state circuit court judge whose opinion was affirmed by the Supreme Court has now held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members. That decision was handed down one day before release of the Supreme Court's opinion. Reporting on the decision, KELO Land Television quotes one of the attorneys involved as saying that the dissolution decision will probably not be affected by the Supreme Court's holding. Colony members still have the option of  reconciling and continuing to live communally.

EU Official Says Church Schools Cannot Refuse To Hire Gays and Lesbians

In a September, Elzbieta Radziszewska, a senior Polish official who deals with anti-discrimination issues, told a Catholic newspaper that church-owned schools and colleges could refuse to hire homosexuals and could fire those already employed where that is consistent with their church's values and principles.  Yesterday's Christian Century reports that European Union Justice Commissioner Viviane Reding disagrees, saying that sexual orientation cannot be a genuine occupational requirement for a teacher. On October 26, in response to parliamentary questions, Redding issued a written statement saying that while under EU's directive on equal treatment in employment religious organizations are allowed to take a person's religion or belief into account where necessary, that exception does not justify discrimination on ground other than religion or belief. Radziszewska responded that the EU directive allows religious organizations to insist that employees be loyal to the organization's ethics, and those who are not need not be employed in institutions where these are essential job qualifications.

Parents Object To Planned School Play "Santa Goes Green"

In DuBois, Pennsylvania, some parents have raised a new kind of objection to a planned school Christmas play. The Progress reported yesterday that four residents have asked the DuBois School Board to reconsider the choice of the play "Santa Goes Green" that is to be produced by 4th and 5th graders on Dec. 8-10. The play was written by author and composer John Jacobson, who was also an unsuccessful candidate for the U.S. House of Representatives from California's 2nd District in this month's elections.  Parent Patty Fisch says the play contains a hidden political and environmental agenda that she does not want her child exposed to. She says that "several parts in the play drill into kid's heads the world's going to end if they don't go green." Another parent argued that environmentalism is a matter of personal belief and so the play could be seen as advancing religion.

Israeli Jewish Anti-Missionary Group Sues State-Run Radio Stations Over Ad Refusal

Yad L'Achim is an Israeli non-profit group, one of whose goals is to counter Christian missionary activity aimed at Jews in Israel. Arutz Sheva reported on Wednesday that the organization has filed suit against two Israeli state-operated radio stations which have refused to run Yad L'Achim's ads. The organization wants to run the ads prior to music festivals and major concerts at which Christian missionaries reaching out to young people are particularly active. Both the Israel Broadcasting Authority and Army Radio have refused. Army Radio says that it cannot run ads that "may damage the religious sentiments of different groups."  In a letter to the court, Yad L'Achim said:

a public service announcement or paid ad warning Jews not to fall prey to missionaries would not violate the religious feelings of anyone in Israel. It is the radio stations' social and legal obligation to broadcast the ads. There is, in fact, no more suitable message for Jews in a Jewish state than to tell them to remain strong in their identities and reject anti-Semitic missionary activity.

Yad L'Achim attorneys threaten to go beyond their present suit which demands the ads be run either as a public service announcement or a paid ad. They say they if the stations do not change their stance, Yad L'Achim will file a discrimination claim with the High Court as well.

9th Circuit: Christian Legal Society Failed To Preserve Pretext Argument For Review

Last June in Christian Legal Society v. Martinez, the U.S. Supreme Court upheld Hastings Law School's policy of only recognizing student groups that are open to all students. The policy was challenged by CLS that required its members and officers to sign a statement of faith. (See prior posting.)  However the Supreme Court remanded the case to the 9th Circuit, saying that, "if and to the extent it is preserved," the Circuit Court could still consider CLS's argument that Hastings applied its all-comers rule in a biased fashion, using it as a pretext for religious discrimination. In Christian Legal Society of University of California Hastings v. Wu, (9th Cir., Nov.17, 2010), the 9th Circuit held on remand that plaintiffs had failed to preserve this selective application argument for appeal. The Washington Post reports on the decision. [Thanks to Religion News Service for the lead.]

State Department Issues 2010 Report On International Religious Freedom

Yesterday the U.S. State Department released its 2010 Report on International Religious Freedom. The annual report to Congress is mandated by Section 102 of the International Religious Freedom Act of 1998. In releasing the report, Secretary of State Hillary Clinton (full text) said:

Religious freedom is under threat from authoritarian regimes that abuse their own citizens. It is under threat from violent extremist groups that exploit and inflame sectarian tensions. It is under threat from the quiet but persistent harm caused by intolerance and mistrust which can leave minority religious groups vulnerable and marginalized.... [W]ith this report as our guide, the United States will continue to advance religious freedom around the world as a core element of U.S. diplomacy.

Assistant Secretary Michael H. Posner then answered reporters questions. (Full text of briefing.)

The report surveys the status of religious freedom separately for every country around the world (except for the U.S. itself). The Executive Summary highlights 27 countries in which there have been noteworthy developments, either positive or negative. It reports on U.S. efforts to promote religious freedom in the 8 countries the State Department has formally designated as "Countries of Particular Concern." (See prior posting.) However the Report did not update these designations. Secretary Posner, though, said that a new list will be forthcoming "in the next couple of months."

The Executive Summary reiterates U.S. opposition to continuing efforts by Muslim countries to obtain a U.N. resolution on "defamation of religions." Citing China and Uzbekistan, it also condemns "the growing trend of forcibly returning individuals from another country to face persecution or abuse in their home country in retribution for their religious activism." [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

In Battle For Texas House Speaker, Religion Becomes An Issue

In the Texas state legislature, Joe Straus, the current speaker of the House of Representatives, is being challenged by two other Republicans who are more conservative. Yesterday's Dallas Morning News reports that  supporters of challengers Rep. Warren Chisum and Rep. Ken Paxton are stressing their candidates' Christian values and in e-mails are alluding to the fact that Straus is Jewish. A Houston Chronicle opinion piece carries a detailed examination of what it calls the "religious campaign against Straus."  Some of the opposition pieces claim Straus favors abortion and points out that his rabbi is on the board of Planned Parenthood. A Dallas Morning News report analyzes the claim that Straus received a 100% National Abortion Rights League rating for 2007.  It reports:

In 2007, Straus voted 100 percent of the time with NARAL Pro-Choice Texas. However, he only voted on one of nine votes the group considered crucial that session. Straus voted "aye" on an unsuccessful amendment to the state budget that would have shifted to child-abuse prevention efforts $5 million previously allotted to "pregnancy crisis centers," which advise women and girls about alternatives to abortions.

The ADL yesterday issued a release calling appeals based on a candidate's religion "offensive and inappropriate."

Russia's Lower House Approves Bill Allowing Orthodox Church To Reclaim Nationalized Property

Reuters reports that yesterday the State Duma, the lower house of Russia's Parliament, adopted a bill authorizing the Russian Orthodox Church to reclaim up to 17,000 building and churches nationalized after the 1917 Bolshevik revolution. Under the bill, the Church cannot reclaim museum pieces or public buildings. The bill easily passed on its second and main reading in the lower house. It must still pass a perfunctory third reading before going to the upper house (the Federation Council) for approval and then being signed into law by the president. (Background on legislative process).

Ponzi Scheme Targets Investors In Shariah-Compliant Financial Products

A Department of Justice press release yesterday unveiled an indictment against three owners of a bankrupt Chicago real estate development firm charging that they ran a Ponzi scheme aimed at investors seeking Shariah-compliant investments. The indictment alleges that two of the owners of Sunrise Equities, Inc. misrepresented that an investment in the company was Shariah compliant, and promised returns of between 15% and 30%.  Hundreds of Muslims in the Chicago area invested, and collectively they lost some $30 million in the fraud. Sunrise was not generating any profits from real estate development and prior investors could be paid only out of funds later invested by others. The two defendants charged in the affinity-group fraud have now fled the country.

New Survey Identifies Religious Concerns For 2012 Election

The Public Religion Research Institute this week released a report on its  2010 Post-Election American Values Survey. The report titled Old Alignments, Emerging Fault Lines: Religion in the 2010 Election and Beyond,  reports on three findings that may have importance for the 2012 elections:  (1) only 4 in 10 Americans believe that President Obama has religious beliefs similar to their own; (2) 49% of Americans believe that the values of Islam are compatible with American values; and (3) 58% agree that God has granted America a special role in human history. ABP yesterday reported on the survey.

Court Refuses To Stop Murfreesboro Mosque

According to NPR, a Tennessee Chancery Court judge yesterday refused to issue a temporary restraining order to stop construction of an Islamic Center in Murfreesboro (TN). The formal issue in the trial was whether Rutherford County planning officials violated the state's open meeting law when they approved the site plan for the Center. (See prior posting.) However the trial drew national attention as plaintiffs argued that Islam should be classified as a political movement, not a religion. (See prior posting.) After seven days of testimony since late September, Chancellor Robert Corlew heard closing arguments yesterday (WRCB TV) and then issued his ruling. While expressing some concern about the notice requirements, Corlew ruled that plaintiffs had not shown the county acted illegally, arbitrarily or capriciously in approving the site plan.

Senate Hearing Held On Nomination of Ambassador at Large for International Religious Freedom

Religion News Service reports that yesterday the Senate Foreign Relations Committee held a hearing on the nomination of Suzan D. Johnson Cook to be Ambassador at Large for International Religious Freedom. In her prepared testimony (full text) Cook outlined some of her relevant experience. Cook retired last year as pastor of New York's Bronx Christian Fellowship Church.  Religious freedom advocates have been concerned that the religious freedom ambassador's post has been unfilled for so long. Some, however, question Cook's lack of foreign policy experience.

Executive Order Adopts New Criteria For Organizations Receiving Faith-Based Grants

President Obama today signed an executive order (full text) making changes in the operations of the White House Office of Faith-based and Neighborhood Partnerships.  As reported in a press release from the Baptist Joint Committee, the order implements many of the recommendations made in February by a task force on reform of the faith-based office. (See prior posting).  However the Executive Order does not implement a split recommendation that houses of worship use separately incorporated affiliates to receive federal grant funds. (The recommendations were published as part of a larger report last March. See prior posting.) Today's Executive Order, titled Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations, includes the following directives:

(c)  No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) ... [O]rganizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e)  The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause ... and must monitor and enforce standards ... in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f)  Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance ..., separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.

(g) ...  [A] faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance ... to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization)....  [Organizations] may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

 (h)  ... If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider....

The Executive Order also sets up a Working Group to draft a set of model regulations and guidance documents for adoption by federal agencies involved in distributing funds.

Illinois Village Sued For Refusal To Accommodate Jehovah's Witness Employee

A former Oak Park, Illinois employee on Friday filed a lawsuit against the village claiming that it wrongfully refused to accommodate her religious beliefs.  The TribLocal and the Pioneer Press report that Jehovah's Witness adherent Shawnya Robinson originally worked in Oak Park's community relations department, but was transferred the clerk's office when her original position was eliminated for budgetary reasons. Robinson had religious objections to registering domestic partnerships. She also objected to being involved in voter registration, interpreting her church's teaching of political neutrality as preventing her from being involved in any way in the voting process. Although Robinson was originally told that it would not be a problem to accommodate her religious beliefs, eight days after she began her new job she was fired because her supervisor became concerned about office morale problems that would be caused by Robinson's being exempted from some duties. The Illinois Department of Human Rights in September dismissed similar charges filed with it by Robinson.

Court Rejects Bivens Claim For Religious Discrimination By CIA

Ciralsky v. Central Intelligence Agency, 2010 U.S. Dist. LEXIS 120617 (ED VA, Nov. 15, 2010), is a suit originally filed ten years ago by a former CIA employee challenging the revocation of his security clearance and his resulting termination from his position as an attorney with the CIA.  Plaintiff Adam Ciralsky claims that these actions were taken because he is Jewish and was viewed as a supporter of Israel. Some of plaintiff's claims have already been adjudicated or are still pending in the district court for the District of Columbia. The claims involved in this opinion are primarily Bivens claims for violations of various constitutional provisions. Among those are claims that defendants violated the free exercise clause and the equal protection component of the 5th Amendment's due process clause. The court dismissed plaintiff's claims on various grounds, including lack of subject matter jurisdiction. However it also discussed the merits of various claims, including those under the 1st and 5th Amendment:

Ciralsky has already challenged the revocation of his security clearance under Title VII in the District of Columbia, which dismissed that claim; he cannot use a Bivens action to receive a second chance at his failed Title VII claim.

Indeed, allowing this claim would require this Court to broaden the scope of Bivens, which courts are reluctant to do. Bivens creates an implied right of action for damages against federal officials who violate specific constitutional rights.... Ciralsky has not cited any precedent that creates a Bivens action for free exercise or equal protection claims.

Even if Ciralsky could bring such a Bivens action, he does not allege facts that make out a constitutional violation. Ciralsky alleges that the CIA revoked his security clearance because officials saw him as overly sympathetic to Israel. If true, the CIA's actions were within its broad discretion for granting and denying access to national security information.

USCIRF Vice-Chair Criticizes Russian Laws on Extremism

Elizabeth Prodromou, vice chair of the U.S. Commission on International Religious Freedom, spoke Sunday at a conference in Brussels on Religious Freedom in Russia (full text or remarks). She said in part:

Russia faces legitimate, serious threats from groups which advocate or perpetrate violence in the name of religion. This is a major security concern, not just in Russia, but in other nations. There is a problem, however, with Russia's approach to the challenge.  It defines extremism in such a way that religious groups that neither practice nor preach violence fall under that category.  Moreover, Russian authorities apply anti-extremist laws in an overly broad and arbitrary manner.  The result is a repeated and heavy-handed use of the law against religious adherents who pose no credible threat to security, and whose only "crime" is a failure to conform to mainstream ideas and beliefs.

USCIRF issued a press release on the talk.

British Tribunal Rejects Religious Discrimination Claim By Adoption Panel Member

In Britain, an employment tribunal in Leicester has rejected religious discrimination charges brought by a Christian pediatrician who was dismissed from her position on a Northamptonshire County Council adoption panel when she asked to abstain from voting in cases where same-sex parents were seeking to adopt. Brighouse Echo reports today that the employment judge concluded Dr. Sheila Matthews was treated no differently than any other panel member who might request to abstain from voting for any reason would have been.

Surprise Bishops' Conference Election Results Show Move To The Right

New York Archbishop Timothy Dolan yesterday was elected president of the United States Conference of Catholic Bishops.  Christian Century reports that Dolan's choice was a surprise.  Usually the sitting vice president-- who was Bishop Gerald Kicanas or Tuscon-- is elected president. However Kicanas had been criticized by sex abuse victims for failing to stop the ordination of a priest who was later convicted of sex offenses.  Also conservative Catholics criticized Kicanas as weak on social issues.  In the third round of voting, Dolan defeated Kicanas by a vote of  128-111. Archbishop Joseph Kurtz of Louisville was elected vice president, defeating Denver Archbishop Charles Chaput.  Observers say the elections foreshadow a sharp move to the right by the bishops' conference and suggest that the bishops will be leaders in the culture wars.

TSA Says Passengers With Religious Objections To Both Body-Scan and Pat-Down Cannot Board

John Pistole, head of the Transportation Security Administration told the Senate Homeland Security Committee yesterday that airline passengers who refuse both a full body scan and a pat down search will not be allowed to board a plane, even if the refusal is for religious reasons. AP reports that Pistole made the statement at hearing in response to a question by Nevada Sen. John Ensign.

President Sends Eid Greetings And Wishes Hajj Pilgrims Well

In Saudi Arabia, the Hajj is under way as yesterday pilgrims climbed Mount Arafat as part of the five days of rituals that trace the steps of the Prophet Muhammad (AP). Today marks the beginning of Eid al-Adha, the Festival of the Sacrifice that commemorates Abraham's willingness to sacrifice his son. (Washington Post). Yesterday the White House issued this statement from President Obama sending Eid greetings:

Michelle and I extend our greetings for a happy Eid-ul-Adha to Muslims worldwide and wish safe travels to those performing Hajj.  This year, nearly three million pilgrims from more than 160 countries - including the United States - have gathered in Mecca and neighboring sites to perform the Hajj rituals and stand together in prayer.

On Eid, Muslims around the world will commemorate Abraham’s willingness to sacrifice his son, and distribute food to those less fortunate - a reminder of the shared values and the common roots of three of the world's major religions.

On behalf of the American people, we extend our best wishes during this Hajj season – Eid Mubarak and Hajj Mabrour.

Teacher Reprimanded For Objecting To Student's Anti-Gay Statements

In Brighton, Michigan, a high school economics teacher is challenging a one day suspension without pay that was imposed on him for violating the free speech rights of a student. According to a Canadian Press report today, on Oct. 20 teacher Jay McDowell told a student in his class to remove a belt buckle carrying the Confederate flag. This led another student to challenge McDowell on how this differed from the rainbow flag that was depicted on an anti-bullying T-shirt worn by the teacher. The student said he did not accept gays. McDowell told him he could not say that in class. The student insisted, "I don't accept gays. It's against my religion." McDowell sent him out for a one-day suspension. Another student asked if he could leave also, because he too did not accept gays.  The reprimand letter that teacher McDowell received from the school district said that he "purposefully initiated a controversial issue" by wearing the anti-bullying T-shirt.

RLUIPA Lawsuit Challenges Zoning Limits on Church Affiliated Outreach Center

A RLUIPA challenge to the zoning laws of the city of Kelso, Washington was filed Friday in federal district court in Washington by the Victory Center which welcomes young people and the needy for fellowship, meals, worship and classes. The Center is affiliated with the Kelso Church of Truth and Mountain Ministries.  The Kelso city code limits a four block downtown area to pedestrian-related uses.  Victory Center moved in last spring and put a $15,000 deposit toward purchase of the building. The Victory Center defines itself as a cultural and educational center, which is a permitted use in the area.  However, as reported by the Longview (WA) Daily News (11/9), a hearing examiner last week ruled that it is instead a "community center" which is not permitted. In the lawsuit filed Friday, Victory Center charges that the city's community development director wrongly applied the zoning law based on his personal opinion and religious prejudice. (Longview Daily News 11/15).

Bishops' Head Defends Stance Opposing Health Care Reform Bill

Yesterday Catholic Cardinal Francis E. George, outgoing president of the U.S. Conference of Catholic Bishops, delivered the opening address at the fall general assembly of the USCCB.  According to Catholic News Service, Cardinal George spent much of his time justifying the Bishops' opposition year to final passage earlier this year of the federal health care reform law. George said that developments since the passage of the legislation" have confirmed that "our analysis of what the law itself says was correct and our moral judgments are secure."  The Bishops opposed passage on the ground that the bill did not go far enough in protecting against federal funds being used to pay for abortions. (See prior posting.)

Mullah Omar Calls On Young Educated Afghans To Defend Islamic Values

Threat Matrix yesterday published the full text of a lengthy Eid al-Adha statement by Afghan Taliban leader Mullah Omar. In a section of his statement addressed to university students and young educated Afghan men, Omar says:

As a young educated generation and men of letters (writers) of our Islamic country, you are the leaders of tomorrow of the country. Our enemy is turning every stone to spread their cultural and ideological influence over the young generation of this Muslim country and thus jeopardize our history, religious values and our future. Our religious and historical enemy has cunningly launched a propaganda drive, spending huge amount of money in order to gradually strip our young generation of their Afghan and Islamic identity. As a young generation of this Islamic country, you have an Islamic and Afghani responsibility to confront these hostile anti-Islamic and anti-Afghan endeavors of the enemy with all your capability of tongue and pen and indefatigable struggle. Do not let your historical, religious and cultural enemy succeed.

Holder Delegates Authority To Certify Hate Crime Prosecutions; First Federal Indictments Are Handed Down

The 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Act (18 USC Sec. 249) permits federal prosecution of hate crimes-- many of which would traditionally be prosecuted under state law-- only if the Attorney General or his designee certifies that one of several statutory criteria for acting federally exists. Last week, in a rule change that is to be published in the Federal Register today (full text), Attorney General Eric Holder delegated that authority to the Assistant Attorney General for Civil Rights and, in some cases, to the Assistant Attorney General, Criminal Division, of the Justice Department. Main Justice reports on the AG's action.

Meanwhile, on Friday the Justice Department announced the first federal indictments under the 2009 Act.  A New Mexico grand jury indicted three men on charges of carrying out a racially motivated assault on developmentally disabled man of Navajo dissent. The assault included burning a swastika into the man's arm. ADL yesterday issued a press release welcoming the indictments.

Israeli Government Appoints Alternative Marriage Registrars To Validate Conversions By Military Rabbis

Today's Jerusalem Post reports on the latest developments in the ongoing tensions within the governmental religious establishment over standards and procedures for conversion to Judaism. On Sunday, the government informed the High Court of Justice that the Chief Rabbinate had appointed four new rabbinical judges from the state-administered conversion courts to act as marriage registrars who could register marriages, allowing couples to bypass city registrars. At issue is the refusal in four cities by marriage registrars to recognize the validity of conversions carried out in the army by state-administered conversion courts. The government's announcement came in a brief filed with the High Court in a case challenging the four registrars who had refused to accept conversions performed in the IDF that were not not approved by the Chief Rabbinate. Some 4,500 soldiers have been converted by military chaplains.

Recent Articles and Books of Interest

From SSRN:

• Geoffrey P. Miller, Logos and Narrative, (NYU School of Law, Public Law Research Paper No. 10-78, Nov. 9, 2010).
• Jeremy Waldron, Two-Way Translation: The Ethics of Engaging with Religious Contributions in Public Deliberation, (NYU School of Law, Public Law Research Paper, Feb. 18, 2010).
• Jessie Hill, Property and the Public Forum: An Essay on Christian Legal Society V. Martinez, (Duke Journal of Constitutional Law & Public Policy, 2010).
• Roberta Rosenthal Kwall, Creativity and Cultural Influence in Early Jewish Law, (Notre Dame Law Review, Forthcoming).
• Wilson Ray Huhn, Ten Questions on Gay Rights and Freedom of Religion, (Akron Journal of Constitutional Law and Policy, Vol. 1, 2009-2010).

The weekly publication New Europe has just published a special edition on Religious Freedom. With contributions from over 30 Europeans and Americans, the issue focuses both on special problems in Turkey and broader European concerns over the role of religion.

New Books:

• Raymond A. Schroth, S.J., Bob Drinan: The Controversial Life of the First Catholic Priest Elected to Congress, (Fordham Univ. Press, Dec. 2010).
• Michelle U. Campos, Ottoman Brothers: Muslims, Christians, and Jews In Early Twentieth-Century Palestine, (Stanford Univ. Press, Nov. 2010).

Israeli Civil Court Reverses Rabbinical Court's Enforcement of Illegal Contract

Haaretz today reports on a decision by an Israeli district court in Tel Aviv taking the unusual step of reversing a decision of a rabbinical court as being in violation of public policy. At issue is an illegal agreement between two Haredi (strictly-Orthodox) real estate developers.  When the Jewish Agency invited tenders for the purchase of a parcel of land in downtown Jerusalem, developer Avraham Tzeinwirt agreed to pay developer Aharon Eisenberg $1.15 million in exchange for Eisenberg withdrawing from the bidding. Tzeinwirt won the bid, but then refused to pay Eisenberg. Eisenberg took the matter to an Orthodox rabbinical court (Badatz) in Bnai Brak. The rabbinical court, headed by Rabbi Nissim Karelitz ordered Tzeinwirt to pay. Unhappy with the result, Tzeinwirt appealed to a civil court which found that the developers' agreement was designed to defraud both the Jewish Agency and tax authorities. The entire deal has now been canceled and the judge sent a copy of her ruling to the Jewish Agency, the attorney general, the Justice Ministry and the Antitrust Authority for them to consider the possibility of criminal charges. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Saudi Supreme Court Reverses Death Sentence Imposed On TV Psychic For Sorcery

Amnesty International reports that last week Saudi Arabia's Supreme Court reversed a death sentence that had been imposed on Ali Hussain Sibat, a popular psychic who had appeared on the Lebanese satellite TV channel Sheherazade. Sibat was arrested last year by Saudi religious police while he was on the omra pilgrimage in Medina, and was charged with practicing sorcery. (See prior posting.) An appellate court had upheld the sentence, saying that Sibat's actions made him an "infidel". The Supreme Court said that the death penalty was not appropriate because there was no proof that others were harmed by his actions. The court remanded the case for retrial, saying the lower court should consider commuting the death sentence and deporting him to Lebanon at the end of his sentence.

Recent Prisoner Free Exercise Cases

In Smith v. Beauclair, 2010 U.S. Dist. LEXIS 118662 (D ID, Nov.4, 2010), an Idaho federal district court concluded that attorneys for an inmate who sued prison officials to accommodate his Cherokee religious beliefs are entitled to an award of attorneys' fees on in connection with two of plaintiff's claims on which he was deemed to be the prevailing party (wearing of beard and access to medicinal herbs). The court awarded $41,965.

In Collman v. Skolnik, 2010 U.S. Dist. LEXIS 118718 (D NV, Oct. 8, 2010), a Nevada federal district court allowed an inmate to proceed with his lawsuit seeking to have the Philadelphia Church of God listed as a recognized faith group by prison authorities.

In Rose v. California, 2010 U.S. Dist. LEXIS 119397 (ED CA, Oct. 26, 2010), a California federal magistrate judge held that a parole hearing panel did not violate an inmate's rights under the First Amendment or RLUIPA by considering, during the parole hearing, two disciplinary reports stemming from religiously-based violations of prison rules (hair length and tobacco possession that were part of his Native American religious practices).

In Antonetti v. Skolnik, 2010 U.S. Dist. LEXIS 120063 (D NV, Oct. 25, 2010), a Nevada federal district court permitted an inmate to move ahead with his claim that "he is a devout, practicing fundamentalist Christian and has been denied access to a priest, a place of worship, communion, confessional, and congregation with those of his faith [and]... has thereby been denied forgiveness, connection to his god and chances at atonement." He also seeks a kosher diet "that is in accordance with his beliefs."

Palestinian Blogger In West Bank Faces Possible Life In Prison For Heretical Postings

AP reported Friday from the West Bank Palestinian town of Qalqilya that a mysterious blogger who angered the Arab world by his Arabic language postings blog postings and Facebook pages claiming he was God and that Muhammad had the attributes of a "primitive Bedouin" has now been caught.  It turns out that the blogger, whose website spoofing the Qur'an drew over 70,000 visitors, is Walid Husayin, a quiet 26-year old son of a Muslim scholar. Husayin led a double life, working in his father's barber shop and praying each Friday with his family. But he spent evenings blogging, in English and Arabic, arguing in favor of atheism and criticizing Islam as fostering irrationality and ignorance.  Husayin has now been arrested and charged with "insulting the divine essence."  Seer Press News says that Husayin, who was apprehended because he spent an unusual amount of time in an Internet cafe, could be sentenced to life in prison. According to Dbglobal News,even Husayin's mother wants him to be imprisoned for life to restore the family honor and protect the family.

San Francisco Resident Seeks Signatures For Initiative To Ban Male Circumcision

San Francisco (CA) resident Lloyd Schofield has submitted a proposed initiative measure to the San Francisco Department of Elections seeking to ban circumcision of males under the age of 18. The proposed ban would include circumcisions performed for religious reasons. Violation of the ban could lead to a fine of up to $1000 and up to one year in jail. In support of the proposed ban, Schofield said: "Tattooing a child is banned as a felony and circumcision is more harmful than a tattoo."  Third Age reported yesterday that in order for the initiative to be placed on the November 2011 ballot, its proponent must collect 7,168 valid signatures.

Louisiana Panel Supports New Biology Textbooks Despite Objections To Their Treatment of Evolution

A Louisiana state Board of Elementary and Secondary Education advisory panel voted 8-4 yesterday to recommend adoption of new high school life science text books, despite opposition by some who argued the books should include information on the theory of intelligent design and should pose more questions about evolutionary theory.  WWLTV News reports that objections to the books were mostly submitted through written comments while most of those who testified before the panel supported their adoption arguing that intelligent design is not science.

New Jersey County Settles DOJ Lawsuit Charging Failure To Provide Religious Accommodation

The U.S. Department of Justice announced yesterday that it had reached a settlement in its Title VII lawsuit against Essex County, New Jersey. The suit was filed on behalf of an female Muslim corrections officer who was denied permission to wear a religiously-required headscarf because it violated the Department of Corrections uniform policy. (See prior posting.)  The settlement, which must still be approved by the court, calls for the county to pay the officer,  Yvette Bashir, $25,000. It also calls for the creation of a county religious accommodation policy and county employee training regarding religious discrimination and accommodation.

1st Circuit: New Hampshire Schools' Pledge of Allegiance Recitation Is Constitutional

In Freedom from Religion Foundation v. Hanover School District, (1st Cir., Nov. 12, 2010), the U.S. 1st Circuit Court of Appeals rejected an Establishment Clause challenge, as well as other constitutional challenges, to New Hampshire's School Patriot Act that requires a time during the school day for recitation of the pledge of allegiance. Any student's participation is voluntary. Those who wish not to recite the pledge are to either stand or sit silently. Plaintiff argued that the recitation of the pledge is a religious exercise because the pledge contains the words "under God." The court said:

At the heart of FFRF's claim is its argument that those students who choose not to recite the Pledge for reasons of non-belief in God are quite visibly differentiated from other students who stand and participate.... FFRF's premise is that children who choose not to recite the Pledge become outsiders based on their beliefs about religion. That premise is flawed..... There are a wide variety of reasons why students may choose not to recite the Pledge, including many reasons that do not rest on either religious or anti-religious belief. These include political disagreement with reciting the Pledge, a desire to be different, a view of our country's history or the significance of the flag that differs from that contained in the Pledge, and no reason at all.

The Becket Fund issued a press release announcing the decision. [Thanks to Volokh Conspiracy for the lead.]

Adjunct Union Says It Should Be Recognized By NLRB At Catholic College

Riverdale, New York's Manhattan College, which holds itself out as a Catholic institution, is in the midst of a fight by its adjunct faculty to unionize.  Inside Higher Ed today reports that the school is invoking the Supreme Court's 1979 decision in NLRB v. Catholic Bishop of Chicago that held church-operated high schools are not within NLRB jurisdiction. The Court focused on the risk of free exercise infringement involved. Subsequently appellate courts broadly applied the ruling to religious colleges as well.  However, the union is arguing that adjunct faculty unions have no power to change the religious nature of a college, that Manhattan College does not meet the test of a religious institution, and that it is morally wrong for the college to invoke decisions exempting religious institutions from NLRB jurisdiction. On the issue of whether the college is a religious one, its president, Brennan O'Donnell, complained:

[T]he fact that we are a welcoming, pluralistic community is being presented as proof that we cannot be an authentic Catholic college. Questions about the number of brothers in various roles imply that the work of lay faculty, staff, and administrators is negligible in forwarding our mission, and betrays a complete incomprehension of a full generation's hard and faithful work in passing forward the charism of religious orders to lay colleagues.

Pennsylvania Voter Was Required To Affirm Address By Placing Hand On Bible

Pennsylvania's election laws allow a voter who has moved to a new address in the same county can still vote by giving a "written affirmation of the change of address to poll workers in the new precinct. (Background.) Today's Philadelphia News reports that one poll worker instead required a voter to place her hand on a Bible and state her name and address before signing in. It turns out that for decades Bibles have been part of the package of polling-place supplies. They are used to swear in election workers before the polls open. The city's voter registration administrator says that poll-worker training will be updated to cover Bible issues.

Washington Pharmacy Board Moves Ahead On Rule Change To Permit Facilitated Referrals

As previously reported, in July the Washington State Board of Pharmacy settled a lawsuit against it by agreeing to begin rule-making proceedings to amend a controversial rule that requires pharmacies to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. The rule as interpreted did permit a pharmacist with objections to have the prescription filled by a co-worker in the same store if another pharmacist was also on shift.  According to the Tacoma (WA) News Tribune, yesterday the Board of Pharmacy took the next step, voting 3-2 to ask the Board staff for recommendations on drafting a rule allowing facilitated referrals to other pharmacies for "time sensitive" medications that the pharmacy will not or cannot fill. Two of the Board members who had originally voted for settling the case now changed their minds after the Board received 5,359 comments in its rule making proceeding, 4,448 in opposition to any change. Several pro-choice groups had prepared form letters online that could be sent as comment letters. The Board majority that still supports the change says there is too much focus on Plan B. They say that small pharmacies are being driven out of business under the current rule that requires them to stock even high-cost specialty drugs. Supporters of the change agree that more than Plan B is at stake. They say there might be religious objections to furnishing life-saving HIV drugs as well, for example.

United Methodist Church Sues Break-Away Oregon Congregation

The Oregon-Idaho Annual Conference of the United Methodist Church last week announced that it had filed suit in an Oregon state court against a break-away congregation, seeking to recover for UMC the real and personal property held by the Ontario,Oregon congregation.  The complaint (full text) in Oregon-Idaho Annual Conference of the United Methodist Church v. Ontario Community Church, Inc., (OR Cir. Ct., filed 11/3/2010), asserts that UMC is entitled to the property under provisions in its Book of Discipline that specify local church property is held in trust for the denomination. The congregation broke away after its members objected to a change in clergy imposed by the bishop.  The congregation filed amended articles of incorporation describing itself as a non-denominational church and purporting to revoke any express or implied trusts created for the benefit of UMC or other bodies.The complaint also alleges that the meeting at which a vote to break away was taken was improperly called and that members lack authority to alter restrictions on local church property. AP yesterday, reporting on the decision, says that congregations in California and Alabama have left the United Methodist Church in recent years, sparking similar litigation.

Pakistani Court Imposes Death Sentence On Christian Woman For Blasphemy

Christian Today reports that in Pakistan on Sunday, a court in Punjab province sentenced a Christian woman to death for blasphemy. It also imposed a fine equivalent to two and a half years' wages. In previous blasphemy cases, the death sentence has not been carried out and this may amount instead to a life sentence. Defendant Asia Bibi, a farm worker in the village of Ittanwali, got into a heated religious discussion with Muslim fellow farm workers.  When they tried to convince Bibi to accept Islam, Bibi told them that Jesus had died for mankind's sins and asked what Muhammad had done for them. Apparently the Muslim women, offended by Bibi's remarks, began to beat her while others locked her in a room and abused her and her children. Local Muslim leaders then pressured prosecutors to file charges against Bibi.

UPDATE: CathNews India (11/15) reports that Bibi's family has appealed the conviction and sentence to the Lahore High Court.

Spanish Court Acquits Muslim Tourists Who Attempted To Pray In Catholic Church

A judge in Cordoba, Spain has acquitted eight Austrian tourists who were charged in March with offending Catholic religious sentiments by attempting to recite Islamic prayers in the Mezquita Cathedral.(See prior posting.) Prior to the 13th century, the building was a mosque and Spanish Muslims have long asserted the right to pray there.  According to Wednesday's LifeSite News, the court ruled that the tourists' actions were merely a public disorder and not an attempt to offend religious sentiments. They were aimed at supporting joint use of the building by Catholics and Muslims, and that, according to the court, does not discredit Catholic beliefs.

Naval Officers Sues Seeking Conscientious Objector Status

Last week, the ACLU announced that it had filed a habeas corpus petition on behalf of a naval officer on active duty at Groton naval base, challenging the Navy's refusal to discharge him as a conscientious objector.  In Izbicki v. Mabus, (D CT, filed 11/3/2010), (full text of petition), Ensign Michael Izbicki alleged that after he graduated the Naval Academy, his Christian beliefs developed and he ultimately concluded that he could not take someone's life or aid others in doing so. The petition cites a long list of erroneous assertions made by the Navy in rejecting Izbick's two applications for CO status. [Thanks to God and Country blog for the lead.]

UPS Packages Containing Hajj Visas Delayed By Government Inspections

AP reported on Tuesday that the U.S. Customs and Border Protection temporarily seized for inspection four separate packages containing passports for Muslims to travel to Saudi Arabia for the Hajj. In one of the cases,  17 Virginia residents sent their passports to a California travel agent who had arranged for Hajj visas with the Saudi consulate.  The travel agent sent a package containing the passports and visas back to Virginia by UPS on November 1. However apparently UPS turned the package over to federal Customs and Border Protection officials, delaying its delivery and causing all but one of the Virginians to miss their scheduled flights. According to the Washington Post, Customs and Border Protection bought replacement tickets, at a cost of $34,000, for all the individuals involved. In another case, UPS identified packages containing passports and Hajj visas sent by a second California travel agent to Muslims in Minnesota, California and Washington state, again turning them over to CPB for a security check before they were ultimately delivered. In a release issued Tuesday, the Council on American Islamic Relations said: "The American Muslim community needs to know whether packages sent from point to point within our borders are being screened based on the religion of the sender or recipient, and whether or not such packages can be seized and opened by government officials without a warrant."

Rabbi Convicted of Wire Fraud and Blackmail

The Wall Street Journal reports that Rabbi Louis Balkany, dean of Bais Yaakov, a religious day school in Borough Park, New York, was convicted yesterday in federal court in Manhattan on charges of wire fraud, extortion, blackmail and making false statements.  The indictment (full text) charges that Balkany "was engaged in a scheme to extort a Connecticut-based hedge fund ... into paying millions of dollars to Balkany's school and to another school on behalf of Balkany." As summarized by the Wall Street Journal:

Balkany, who offer spiritual advice to prisoners, approached SAC Capital starting late last year with an offer: He would instruct an inmate not to squeal to the government about alleged insider trading at SAC Capital if the hedge fund made a $2 million donation to his religious school, plus a $2 million loan to another school.

New Church-State Separation Library Collection Dedicated

The State reports that the University of South Carolina Ernest F. Hollings Special Collections Library was scheduled yesterday to dedicate the Flynn T. Harrell Collection on the Separation of Church and State. The collection assembled by Flynn T. Harrell contains books, journals, an extensive clippings collection and 45 years of correspondence on the issue.

Paper's Report On Halal Slaughtering Highlights EU Labeling Proposal

Yesterday's London Mail carried an investigative report on Halal slaughtering of animals in Britain written by a reporter who went under cover into a slaughter house posing as a business man considering buying Halal meat for a chain of stores. Reporter Danny Penman obviously came away as no fan of the slaughtering practices, describing the killing of animals without stunning them first in graphic terms. The article goes on to report that supermarkets, fast food chains including McDonalds, schools, hospitals, pubs and sporting venues "are serving up halal meat to unwitting customers."  British law generally requires animals to be stunned before they are slaughtered, but the Welfare of Animals (Slaughter or Killing) Regulations 1995 contain an exemption for slaughter by religious methods. Penman reports on growing objections to the exemption (which also covers kosher slaughter) and says that some Halal meat producers have taken to using stunning. He also reports that in June, the European Parliament proposed a labeling requirement that would force halal and kosher meat to be labeled as coming from "unstunned animals." A spokesman for Britain's Department for Environment, Food and Rural Affairs says that in principle the Government supports labeling, but it would rather have all animals stunned. A Halal slaughterhouse owner says he would also support a labeling requirement.

In Indonesia, Obama Speaks About Religious Pluralism In Major Address

Yesterday as part of his trip to Asia, President Obama delivered a major speech at the University of Indonesia in Jakarta. (CNN) Obama spent four years as a young boy in Indonesia, the country with the world's largest Muslim population.  A substantial portion of the President's remarks (full text) focused on religion in Indonesia.  He said in part:

Religion is the final topic that I want to address today, and – like democracy and development – it is fundamental to the Indonesian story.

Like the other Asian nations that I am visiting on this trip, Indonesia is steeped in spirituality – a place where people worship God in many different ways.  Along with this rich diversity, it is also home to the world’s largest Muslim population – a truth that I came to know as a boy when I heard the call to prayer across Jakarta.

Just as individuals are not defined solely by their faith, Indonesia is defined by more than its Muslim population. But we also know that relations between the United States and Muslim communities have frayed over many years. As President, I have made it a priority to begin to repair these relations.....

Innocent civilians in America, Indonesia, and across the world are still targeted by violent extremists. I have made it clear that America is not, and never will be, at war with Islam. Instead, all of us must defeat al Qaeda and its affiliates, who have no claim to be leaders of any religion – certainly not a great, world religion like Islam. But those who want to build must not cede ground to terrorists who seek to destroy....

We are two nations, which have traveled different paths. Yet our nations show that hundreds of millions who hold different beliefs can be united in freedom under one flag....

Earlier today, I visited the Istiqlal mosque – a place of worship that was still under construction when I lived in Jakarta. I admired its soaring minaret, imposing dome, and welcoming space. But its name and history also speak to what makes Indonesia great. Istiqlal means independence, and its construction was in part a testament to the nation’s struggle for freedom. Moreover, this house of worship for many thousands of Muslims was designed by a Christian architect.

 Such is Indonesia’s spirit. Such is the message of Indonesia’s inclusive philosophy, Pancasila.  Across an archipelago that contains some of God’s most beautiful creations, islands rising above an ocean named for peace, people choose to worship God as they please. Islam flourishes, but so do other faiths.

U.S. Summarizes and Responds To U.N. Universal Periodic Review Of Human Rights Conditions

Politico reports that last week in Geneva more than 30 U.S. officials went through a respectful, but challenging, interactive dialog with members of the United Nations Human Rights Council as part of the Council's Universal Periodic Review each four years of every country's human rights record. State Department Legal Advisor Harold Koh presented the U.S. response (full text) which summarized the recommendations that came out of the session. Here is Koh's response to issues raised regarding religious freedom:

The eighth set of recommendations concern freedom of expression and religion: The United States is committed to vigilance in the continued protection of fundamental freedoms of expression and religion for all, including laws and policies to protect Muslim, Arab, and other Americans from discrimination and to secure their freedom to practice their religion.

Another FLDS Conviction: 6 Years In Prison

A state court jury in San Angelo, Texas has sentenced 25-year old Kieth Dutson, a member of the FLDS church, to six years in prison and a $10,000 fine on on charges of sexual assault of a child.  Dutson was the seventh, and youngest, person to be tried on charges growing out of evidence seized during a 2008 raid on the FLDS Yearning for Zion Ranch. (See prior posting.) Yesterday's San Angelo (TX) Standard Times reports that Dutson, when he was 20, went through a wedding ceremony with the victim who was 15 years old. Prosecutor Eric Nichols said the trial demonstrated how the FLDS culturally conditioned girls to be married while they are still underage.

Vatican Official Speaks At INTERPOL Conference

Zenit reports on an address Monday by Archbishop Carlo Maria Viganò, secretary of the Governorate of Vatican City State, to the 79th General Assembly of Interpol meeting in Doha, Qatar. (Full text of remarks.)  Apparently the Archbishop chose to address the forum of police chiefs and law enforcement officers from around the world because of the Vatican's growing concern over violence against Christians in Iraq and other parts of the Middle East. Vatican security forces joined Interpol in 2008.  The Archbishop said in part:

Criminal behavior is an intrinsic part of the human experience, just as the conflict of good and evil is part of the world’s history, and, for Christians, a part of God’s saving plan. It is precisely this realization that inspires the Holy See to participate, either as a member or an observer, in the meetings and conferences promoted by international organizations to discuss issues which ultimately deal with man himself, the human being viewed holistically and with respect for all his complexity....

We are here today to renew, in one specific area, our commitment to cooperate in eliminating evil from the world. This is a enormous commitment if we think of the forces at play, yet we must remain undaunted. Indeed, we should be committed to even fuller cooperation.

Opinion Released In TRO Against Oklahoma Anti-Shariah Amendment

As previously reported, earlier this week an Oklahoma federal district court issued a temporary restraining order barring Oklahoma's State Board of Elections from certifying last week's election results reflecting approval of a proposed amendment to the Oklahoma constitution that bars state courts from considering international law or Shariah law in deciding cases.  Now the court's opinion supporting the TRO has been released.  In Awad v. Ziriax, (WD OK, Nov. 9, 2010), the court found that plaintiff has standing to assert that the amendment violates the Establishment Clause.  Plaintiff asserted three kinds of injuries: the amendment reflects official condemnation of his religious faith, it invalidates his will because the will incorporates various Muslim teachings, and the amendment will require state courts to unconstitutionally determine what is and is not encompassed in Shariah law. The court also concluded that plaintiff had made a preliminary showing of likelihood of success on the merits because the amendment does not have a secular purpose and fosters excessive entanglement of government with religion. Politico yesterday reported on the decision.

New Museum of American Jewish History Opens In Philadelphia This Month

RNS reports that the National Museum of American Jewish History in Philadelphia will open to the public on November 26, after grand opening ceremonies on the weekend of Nov. 12-14. Covering 350 years of the history of Jews in the United States, the museum is described by Prof. Jonathan Sarna, the Museum's lead historian, as "the first major Jewish history museum that isn't about death and destruction."

Proposed Bill In India Threatens 1000-Year Old Religious Festival

India's Pune Mirror today reports that the government of the Indian state of Maharashtra is set to enact the Prevention of Human Sacrifice, Sexual Harassment and Inhuman Acts Bill this winter. However warkaris complain that the proposed law may end up banning the Palkhi Festival during which for 1000 years adherents walk barefoot some 150 miles, singing and dancing, to the holy town of Pandharpur.  Confusingly worded Section 13 of the proposed Act is seen as banning any kind of physical pressure, torture or exertion in the name of religion.

Annual "Friend or Foe Christmas" Campaign Launched

Liberty Counsel yesterday announced that it is launching its "Eighth Annual Friend or Foe Christmas Campaign. The annual promotion takes aim at attempts to rename Christmas events as "holiday" activities and at decisions that have banned a range of items, from nativity scenes to wearing of red and green Christmas colors, from various public venues. A resource page on Liberty Counsel's website links to legal memos on public Christmas celebrations and on Christmas in the workplace.  The website offers buttons, bumper stickers and ads promoting Christmas. It also links to a "Naughty or Nice" list of retailers, based on whether they specifically promote "Christmas" in their advertising and displays ("nice") or merely use "holiday" or other generic seasonal depictions and language ("naughty").

Cert. Filed In Seventh Day Adventist Case: Does RFRA Apply To Suits Between Private Parties?

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in McGill v. General Conference Corporation of Seventh Day Adventists. In the case, the court refused to dismiss trademark infringement and related claims brought by two Seventh Day Adventist religious organizations against a break-away church that used a similar name. The court refused to carve out a special exception for religious intellectual property. The petition for review filed with the Supreme Court focuses on a second part of the 6th Circuit's decision that rejected a claim that the Religious Freedom Restoration Act applies to the case. The 6th Circuit held that RFRA applies only suits in which the government is a party. (See prior posting.) The cert. petition points out that the 5th and 7th Circuits agree with the 6th Circuit in this regard, while the 7th, 8th and D.C. Circuits have applied RFRA to suits brought under federal law involving only private parties. [Thanks to Seth Galanter for the lead.]

Federal Court Issues TRO Barring Certification of Oklahoma Anti-Shariah Amendment

AP reports that an Oklahoma federal district court today issued a temporary restraining order barring Oklahoma's State Board of Elections from certifying the results of last week's vote on an amendment to the Oklahoma constitution that bars state courts from considering international law or Shariah law in deciding cases. The lawsuit leading to the TRO was filed last week by CAIR, asserting that the amendment violates the Establishment Clause. (See prior posting.) The court's TRO remains in effect until Nov. 22 when the court will hold a hearing on a temporary injunction.

Mixed Reactions To Pope's Visit To Spain

London's Independent yesterday reported on Pope Benedict XVI's just-completed visit to Spain (Pope's itinerary). The paper says:

the visit has touched a sensitive nerve in Spanish society, divided between traditional Catholics and a growing movement to eliminate Church influence in state affairs.

The Socialist Prime Minister, who figured this was a good weekend to surprise Spain's 1,500 troops in Afghanistan, is on the secular side. He has stopped short of scrapping the teaching of Catholic doctrine in state-supported schools, but during his six-year tenure he has infuriated the Church hierarchy by legalising gay marriage, simplifying divorce proceedings and, most recently, allowing first-trimester abortion on demand.

As the Pope's motorcade moved through Barcelona, a hundred gay and lesbian couples greeted him with a "collective kiss" to protest the Vatican's views on sexual freedom, divorce and condom use.

Obama In India Responds To Question About Jihad

President Obama is on a trip to Asia, and yesterday he and Michelle Obama spoke with students at a Town Hall at St. Xavier College, in Mumbai, India. (Full text of remarks and Q&A). In the first question to the President in the Q&A, a college student asked Obama's "opinion about jihad."  Here is the President's response:

    Well, the phrase jihad has a lot of meanings within Islam and is subject to a lot of different interpretations.  But I will say that, first, Islam is one of the world’s great religions.  And more than a billion people who practice Islam, the overwhelming majority view their obligations to their religion as ones that reaffirm peace and justice and fairness and tolerance.  I think all of us recognize that this great religion in the hands of a few extremists has been distorted to justify violence towards innocent people that is never justified.

     And so I think one of the challenges that we face is how do we isolate those who have these distorted notions of religious war and reaffirm those who see faiths of all sorts -- whether you are a Hindu or a Muslim or a Christian or a Jew or any other religion, or your don't practice a religion -- that we can all treat each other with respect and mutual dignity, and that some of the universal principles that Gandhi referred to -- that those are what we’re living up to, as we live in a nation or nations that have very diverse religious beliefs. 

     And that's a major challenge.  It’s a major here in India, but it’s a challenge obviously around the world.  And young people like yourselves can make a huge impact in reaffirming that you can be a stronger observer of your faith without putting somebody else down or visiting violence on somebody else.

     I think a lot of these ideas form very early.  And how you respond to each other is going to be probably as important as any speech that a President makes in encouraging the kinds of religious tolerance that I think is so necessary in a world that's getting smaller and smaller, where more and more people of different backgrounds, different races, different ethnicities are interacting and working and learning from each other. 

     And those circumstances -- I think all of us have to fundamentally reject the notion that violence is a way to mediate our differences.   

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Book Review: The Handmaid of Politics, (Journal of Law and Religion, Forthcoming).
• Thomas Venzor, Protecting the Unborn Child: The Current State of International Law Concerning the So-Called Right to Abortion and Intervention by the Holy See, (Nebraska Law Review, Vol. 89, 2011).
• Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, (Minnesota Law Review, Vol. 94, p. 972, 2010).
• Jeremy Waldron, Toleration and Calumny: Bayle, Locke, Montesquie and Voltaire on Religious Hate Speech,  (October 29, 2010).

From SmartCILP:

• Adam Candeub, Shall Those Who Live By FCC Indecency Complaints Die By FCC Indecency Complaints?, 22 Regent University Law Review 307-321 (2009-2010).
• Sarah J. Conroy, Birth Control and the Citizen-Catholic in One-Child China, 25 Connecticut Journal of International Law 431-458 (2010).
• Michelle McKinley, Fractional Freedoms: Slavery, Legal Activism, and Ecclesiastical Courts in Colonial Lima, 1593-1689, 28 Law & History Review 749-790 (2010).
• Mark A. Noll, The Election Sermon: Situating Religion and the Constitution in the Eighteenth Century, 59 DePaul Law Review 1223-1248 (2010).

Court Rejects Establishment Clause Challenge To Waldorf Schools

Yesterday's Sacramento Bee reports that on Friday, a California federal district court dismissed a lawsuit that had been in the courts for 13 years challenging two California school districts for using the Waldorf teaching method in two of their schools. The suit alleged that the school districts violated the federal Establishment Clause and the church-state separation provisions of the California constitution. People for Legal and Non-Sectarian Schools argued that the teaching method, based on the philosophy of Rudolph Steiner, is religious. (See prior posting). At the non-jury trial, plaintiffs presented only a single witness and four admissible exhibits. The court held that plaintiffs had failed to establish that Steiner's philosophy of anthroposophy is a system of belief and worship.

UPDATE: The full opinion in the case is now available on LEXIS: PLANS, Inc. v. Sacramento Unified School District, 2010 U.S. Dist. LEXIS 117711 (ED CA, Nov. 4, 2010).

Recent Prisoner Free Exercise Cases

In Fabricius v. Maricopa County, (9th Cir., Nov. 1, 2010), the 9th Circuit upheld dismissal of a pre-trial detainee's complaint that a jalil's playing of holiday music violated the Establishment Clause.

In Freeman v. Julious, 2010 U.S. Dist. LEXIS 115367 (ED CA, Oct. 21, 2010), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that prison authorities failed to comply with his request to receive a Satanic bible and consult with a Satanic clergyman.

In Sylvian v. Florida Department of Corrections, 2010 U.S. Dist. LEXIS 115183 (ND FL, Oct. 29, 2010), a Florida federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 115189, Sept. 28, 2010) and dismissed a Muslim inmate's claim that prison rules requiring him to be clean shaven violate his free exercise rights.

In Hammer v. Johnson, 2010 U.S. Dist. LEXIS 115483 (WD VA, Oct. 29, 2010), a Virginia federal district court refused to grant an inmate a temporary restraining order he sought so he could received the prison's Common Fare religious diet.

In Planker v. Ricci, 2010 U.S. Dist. LEXIS 116083 ( NJ, Oct. 29, 2010), a New Jersey federal district court denied an Odinist inmate a preliminary injunction. Plaintiff claimed that Odinist religious services were scheduled to conflict with his lunch time and his outdoor recreation time, in violation of his rights under RLUIPA and the equal protection clause.

In Prentice v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 116248 (D NV, Oct. 19, 2010), a Nevada federal district court relied on a decision last year by a California federal district court (see prior posting) and held that the White supremacist Church of Creativity is not a "religion" for purposes of the First Amendment. It also found that authorities had sufficient reason to bar racist materials for security purposes.

In Soria v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 116866 (D NV, Oct. 19, 2010), a Nevada federal district court permitted a Jewish inmate to proceed with his complaint that prison officials refused his request for outdoor space and for materials that would permit him to put up a sukkah for the holiday of Sukkot.

In McCarroll v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 117414 (ND NY, Nov. 4, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 117418, Sept. 30, 2010), and dismissed on qualified immunity grounds a prisoner's complaint that he should have been permitted for religious reasons to submit a hair or saliva sample, instead of a blood sample, to be tested for tuberculosis.

Court Says Avoiding High Cost Alone Not A Compelling Government Interest Under RLUIPA

An Indiana federal district court has decided an important prisoner religious rights case brought as a class action by the ACLU, holding that RLUIPA was violated when an Indiana prison stopped serving kosher meals for cost reasons.  In Willis v. Commissioner, Indiana Department of Corrections, 2010 U.S. Dist. LEXIS 116280 (SD IN, Nov. 1, 2010), the facts showed that Indiana prisons had provided both pre-packaged kosher meals and pre-packaged Halal meals (after for a time using higher-cost kosher meals to satisfy requests of both Muslim and Jewish inmates). Costs of pre-packaged meals in total spiraled as the number of Muslim inmates requesting Halal meals increased. In response, the prison system stopped providing any pre-packaged religious meals and instead offered vegan meals prepared on site. But those did not meet strict kosher requirements.  The court held that the Department of Corrections (DOC) had "cited absolutely no relevant authority to support the conclusion that spiraling cost alone is a compelling government interest." The court also concluded that DOC had failed to consider other possible alternatives for serving kosher meals that might be less expensive.

Finally the court held that the lead plaintiff's individual free exercise rights had been violated. While pre-packaged kosher meals were still being served, the prison had a policy of removing from the kosher diet plan any inmate who did not eat 75% of his kosher meals.  Plaintiff did not meet that requirement because breakfasts-- which the prison claimed were kosher-- were not pre-packaged and plaintiff did not eat them because he disagreed that they met kosher standards The court set a hearing for Nov. 30 on the scope of the injunction that should issue.  Chicago Tribune reported on the decision. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

1st Circuit Hears Arguments On Whether FMLA Covers Accompanying Spouse For Faith Healing

Corporate Counsel reports that on Thursday the 1st Circuit Court of Appeals heard oral arguments in Tayag v. Lahey Clinic Hospital, Inc.  One of the issues in the case is whether the federal Family and Medical Leave Act provides leave for caregivers accompanying sick family members who are seeking spiritual healing.  Plaintiff was terminated by her employer for taking unauthorized leave when she accompanied her ill husband to their native Philippines for a seven-week trip. The couple spent 3 and a half weeks at a healing program at a Catholic church and then made religious pilgrimages to other churches in the Philippines as well. They also saw friends and family while in the Philippines. The decision under appeal was handed down by a Massachusetts federal district court in January. (Full text of decision.) The trial court held that

It is far from clear that caring for a seriously ill spouse on a trip for non-medical religious purposes is a protected activity under the FMLA.  Even if caring for a sick spouse on a trip for faith-healing were protected because of its potential psychological benefits, it is undisputed that nearly half of the Tayags’ trip was spent visiting friends, family, and local churches.  The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an “incidental consequence” of taking him on vacation. 

Malaysian Politicians Condemn Teacher's Caning of Student For Bringing Non-Halal Food to School

In the Malaysian state of Sarawak, politicians from the governing Barisan Nasional party, as well as from opposition parties, have condemned the actions of a public school teacher who caned a boy for bringing non-Halal food to school.  According to Saturday's Free Malaysia Today, the senior teacher of St. Thomas Primary School took the action against Basil anak Beginda for bringing fried rice with pork sausages to eat during school recess. Spokespersons for various political parties emphasized the tradition of tolerance in Sarawak, freedom of religion and their belief that the boy's infraction was not serious.