Utah Supreme Court Hears Arguments On FLDS Bishops Intervention In UEP Reformation Proceedings

The Utah Supreme Court on Tuesday heard oral arguments (audio of full arguments) in In re: United Effort Plan Trust.  The appeal involves the attempt by two bishops of the FLDS Church to intervene in proceedings in which a state trial court is reforming the terms of a trust that holds land of FLDS members. The trial court refused to permit intervention, saying that potential beneficiaries of charitable trusts have no right to make claims on the trusts. (See prior posting.) AP reports that the bishops' case is complicated by the fact that two weeks ago the trial court allowed the Corporation of the President-- the legal entity that constitutes the FLDS Church-- limited status to present its views in the case.  However the bishops argue that only they are charged with tending to the temporal needs of FLDS members.

8th Circuit: Religion Did Not Influence Trial Judge's Sentencing of Evangelist

In United States v. Hoffman, (8th Cir., Dec. 2, 2010), the 8th Circuit Court of Appeals upheld the conviction and 175 year sentence imposed on evangelist Tony Alamo for Mann Act violations. (See prior posting.) The court rejected Alamo's argument that his sentence was improperly influenced by religious factors.  In sentencing Alamo, the trial judge said: "Mr. Alamo, one day you will face a higher and greater judge than me. May he have mercy on your soul."  The Court of Appeals concluded, however: "Nothing suggests that the district court's personal view of religion in any way influenced an aspect of Hoffman's sentence."  It said that because religion pervaded the entire trial of the evangelist on charges of taking underage girls across state lines for the purpose of sex, "it is ... not surprising that religion might have been mentioned at sentencing." The Washington Post yesterday reported on the decision.

Kyrgyz City Will Monitor Muslim Clerics

In Kyrgyzstan, the city council in Osh has set up a new commission made up of religious leaders and law enforcement officials to monitor Islamic clerics in the city.  Central Asia Newswire yesterday quoted a source who said: "The decision has been prompted by clerics' frequent and not always positive interference in social and political developments, including the June tragic riots and failed terrorist attacks." Friday prayers will be permitted only at a few mosques in the city.

Supporters of Prop 8 Seek Recusal of 9th Circuit Judge

As the U.S. 9th Circuit Court of Appeals moves to hear arguments next week in the lawsuit challenging the constitutionality of Proposition 8, California's ban on same-sex marriage, supporters of Prop 8 have filed papers seeking to have one of the judges on the appellate panel disqualify himself.  AP reports that in a filing with the court, appellants say that Judge Stephen Reinhardt's impartiality is open to question. The judge's wife, Ramona Ripston, is head of the Southern California chapter of the ACLU and in that role has been an outspoken opponent of Prop 8.  Also the ACLU has filed an amicus brief in the case on behalf of plaintiffs who are challenging the law. Reinhardt has recused himself in past cases involving the Southern California ACLU.  In August a federal district court held Prop 8 to be unconstitutional. (See prior posting.)

UPDATE: The Silicon Valley Mercury News reports that on Thursday, Judge Reinhardt refused to disqualify himself from hearing the case, saying: "I will be able to rule impartially in this appeal, and I will do so." Backers of Prop 8 will not challenge that ruling. [Thanks to Alliance Alert for the lead.]

Illinois Passes Civil Union Bill

The Chicago Sun-Times reports that the Illinois legislature yesterday gave final approval to the Illinois Religious Freedom Protection and Civil Union Act. Gov. Pat Quinn has pledged to sign the bill which passed the House on Tuesday by a vote of 61-52-2 and the Senate on Wednesday by a vote of 32-24-1.  The statute provides for the state to license civil unions between either same-sex or opposite-sex couples and confirms that "a party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses...." (Sec. 20).  It also provides (Sec. 15) that:

Nothing in this Act shall interfere with or regulate the religious practice of any religious body. Any religious body, Indian Nation or Tribe or Native Group is free to choose whether or not to solemnize or officiate a civil union.

When signed by the governor, Illinois will become the sixth state to recognize civil unions.

Egyptian Court Reinstates Order Directing Coptic Church To Allow Remarriages

In Egypt on Tuesday, the State Council's Administrative Court rejected a challenge by the Coptic Church to the court's ruling last May that ordered the Church to allow divorced men to remarry even though the remarriage was not permitted under Coptic Christian religious law. Coptic doctrine allows men to remarry only in cases of adultery or a marriage that was based on deceit. The Court said that family formation is a constitutional right and takes precedence. (See prior posting.) In July, Egypt's Constitutional Court suspended the judgment so that the Church could challenge it. (See prior posting.) In Tuesday's ruling, according to Bikya Masr, the court reinstated its earlier ruling.

Kentucky Gives Tax Incentives To New Noah's Ark Theme Park

Kentucky Gov. Steve Beshear announced yesterday that, subject to approval by the state Tourism Development Finance Authority, the state will grant tax incentives that could total more than $37 million to developers of a new theme park, Ark Encounter. The park's centerpiece will be a 500 foot long replica of Noah's Ark, and will also feature an ancient walled city, a petting zoo, live animal shows featuring giraffes and elephants and a replica of the biblical Tower of Babel. The day-to-day operation of the park will be handled by Answers in Genesis, the group that operates the successful Creation Museum in northern Kentucky.  Mike Zorvath, co-founder of Answers in Genesis ministry says the mission of the new park is to dispel doubts that Noah could have fit two animals of every kind on his ark. The Lexington (KY) Leader-Herald reports that the Governor at a news conference yesterday rejected church-state concerns about the state subsidies, saying that the law does not allow the state to discriminate against a non-profit business on the basis of subject matter.  According to AP, Bershear said: "There's nothing even remotely unconstitutional about a for-profit organization coming in and investing $150 million to create jobs in Kentucky and bring tourism to Kentucky."  The park is expected to create 900 full- and part-time jobs and have an annual impact of over $200 million on the state's economy. It is expected to attract 1.6 million visitors in its first year. The site for the new park is apparently an area in Grant County south of Williamstown.

Workers Comp Denial Did Not Violate Free Exercise Rights

In Lippert v. Lumpkin, (OH App, Nov. 29, 2010), an Ohio appellate court rejected an employee's claim that his free exercise rights were violated when the state denied him unemployment compensation benefits after he was terminated for refusing to work at the employer's site rather than from home on Sundays. The court observed:

appellant offers no evidence addressing the sincerity of his beliefs or describing how the work schedule infringes upon his constitutional right to freely engage in his religion, other than stating that he irregularly attends church on Sunday. There is no evidence in the record describing the tenets of appellant's religion, the sincerity of his religious beliefs, whether Sunday church service is integral to his religious practices, or if no alternative means of worship are available such as services only being offered during his working hours on Sunday.... Moreover, there is no indication that appellant informed [his employer] that the new schedule would interfere with his religious practices.

As Hanukkah Begins, Palestinians Deny Jewish Origins of Western Wall; U.S. Responds

Tonight begins the eight-day Jewish festival of Hanukkah which commemorates the rededication of the Second Temple in Jerusalem by the Maccabees in 165 BCE. Last week, leading up to the holiday, the Palestinian Authority Ministry of Information published as an official paper a study claiming that the Western Wall is part of Al-Aksa Mosque and Haram al-Sharif, rejecting Jewish claims to the site that Jews revere as the remains of the wall that surrounded the original Temple courtyard.  According to the Jerusalem Post, the PA paper claims that Al- Buraq Wall (as the Western Wall is known to Muslims) is property of the Waqf and is owned by an Algerian- Moroccan Muslim family. The study claims: "This wall was never part of the so-called Temple Mount, but Muslim tolerance allowed the Jews to stand in front of it and weep over its destruction."

In a U.S. State Department press briefing yesterday (full text), Assistant Secretary William J. Crowley said:

[R]egarding a claim by a senior Palestinian official that the Western Wall is an Islamic Waqf, we strongly condemn these comments and fully reject them as factually incorrect, insensitive, and highly provocative. We have repeatedly raised with the Palestinian Authority leadership the need to consistently combat all forms of delegitimization of Israel, including denying historic Jewish connections to the land. As the United States has long maintained, the status of Jerusalem must be resolved in final status negotiations between the parties. We recognize that Jerusalem is a deeply important issue to Israelis and Palestinians, to Jews, to Muslims, and to Christians everywhere. We believe it is possible to reach an outcome that both realizes the aspirations of all parties for Jerusalem and safeguards its stature for the future.

Virginia Federal District Court Rejects Constitutional Challenges To Obama Health Care Law

Yesterday in Liberty University, Inc. v. Geithner, (WD VA, Nov. 30, 2010), a Virginia federal district court rejected a broad range of constitutional challenges to the Patient Protection and Affordable Care Act of 2009 (the Obama health care reform bill). In addition to broadly upholding the statute as a valid exercise of Congress' commerce clause power, Judge Norman K. Moon, in a 54-page opinion, also rejected free exercise and establishment clause challenges by various of the plaintiffs. On the commerce clause issue, the court wrote:

I hold that there is a rational basis for Congress to conclude that individuals's decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.... [and] that the terms of health coverage offered by employers to their employees have substantial effects cumulatively on interstate commerce.

The court went on to reject Establishment Clause challenges to the Act's religious conscience exemption and its health care sharing ministry exemption. Both were seen as permissible religious accommodations. It also rejected plaintiffs' claim that the Act requires them to violate their sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions.  The court said:

[Plaintiffs] fail to allege how any payments required under the Act ... would be used to fund abortion. Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered.

Reuters reports on the decision. In a post by Stephanie Cutter, Assistant to the President, the White House reacted, saying: "In the weeks ahead, there will be additional court cases examining this matter and the health reform law. We can’t predict the outcome of each case, but we are confident that we will ultimately prevail in court and continue to deliver the benefits of reform to the American people."

Liberty Counsel, representing plaintiffs, issued a release saying that an appeal will be filed. Judge Moon's decision comes less than a week after the New York Times speculated in a lengthy article that another Virginia federal district court judge, Judge Henry E. Hudson,  in a separate case-- a challenge filed by the state of Virginia-- is likely to find the statute unconstitutional.

Final Approval Given In Settlement of Charges Against Ohio Science Teacher

The final chapter in the litigation involving Mt. Vernon, Ohio suspended middle school science teacher John Freshwater seems to have been written last week.  The Mount Vernon News reported yesterday that the Licking County Probate Court has approved on behalf of student Zachary Dennis a previously reported federal court settlement agreement under which Freshwater agreed to pay $300,000 to parents Stephen and Jennifer Dennis, another $150,000 for an annuity for student Zachary Dennis and $25,000 for legal fees.  The lawsuit grew out of widely-publicized charges that Freshwater taught creationism or intelligent design in class, told his class that anyone who is gay is a sinner, improperly used an electrostatic device to put a cross on the arm of a student, was excessively involved in the school's Fellowship of Christian Athletes and was insubordinate in failing to remove religious materials when ordered to do so by his principal. (See prior posting.) Originally school officials had also been sued, but it settled in 2009. (See prior posting.) A counter suit by Freshwater against the school board was dropped in October. (See prior posting.) [Thanks to National Center for Science Education for the lead.]

Michigan Officials File No Charges In Unusual Qur'an Burning Case

Sunday's Lansing (MI) State Journal carries an interesting article about prosecutors who decided not to file charges in an unusual Qur'an burning case. A 46-year old East Lansing, Michigan resident who was merely scraping by economically went out on the eve of this year's 9-11 anniversary, riding his mountain bike, and got drunk.  He says his wife doesn't allow him to get drunk in the house.  He carried with him a copy of the Qur'an. After he stopped 5 or 6 times for beer, he went down by railroad tracks, ripped pages out of the Qur'an and burned them. Then he rode by the local Islamic Center on his bike and tossed the burnt pages on the sidewalk. He bragged about what he did on Facebook, using as his profile picture one of the controversial Muhammad Danish cartoons. He turned himself in to police at his wife's urging, telling them that he was still "pissed off" about 9-11 and wanted to make a statement of disrespect.

East Lansing prides itself on being a diverse community However ultimately authorities decided not to file charges since the man-- still not identified publicly-- did not damage anyone else's property. He made no physical contact with anyone and the Qur'an he burned was his own. The only possible charges were ethnic intimidation (unclear on these facts) or littering (which would trivialize the incident). Charging the man would make his identity public for the first time. Lansing's assistant city attorney said he was also affected by the fact that police received e-mails from extremists on both sides. He asked: "Do we really want to endanger this person's life for a littering charge?" The local Islamic community has reluctantly accepted the prosecutors' decision. [Thanks to Ken Braithwaite for the lead.]

Pentagon's DADT Report Includes Consideration of Moral and Religious Objections

Today the Defense Department released its Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell". Overall the report concluded that "when coupled with the prompt implementation of the recommendations we offer ..., the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low."  The Report gives significant attention to moral and religious objections to repeal. The Executive Summary of those concerns reports:

In the course of our review, we heard a large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay.  Some feared repeal of Don’t Ask, Don’t Tell might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality.  The views expressed to us in these terms cannot be downplayed or dismissed.  Special attention should also be given to address the concerns of our community of 3,000 military chaplains.  Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplain corps.  A large number of military chaplains (and their followers) believe that homosexuality is a sin and an abomination, and that they are required by God to condemn it as such.

However, the reality is that in today’s U.S. military, people of sharply different moral values and religious convictions—including those who believe that abortion is murder and those who do not, and those who believe Jesus Christ is the Son of God and those who do not—and those who have no religious convictions at all, already co-exist, work, live, and fight together on a daily basis.  The other reality is that policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate.  Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.

Within the chaplain community, the solution to this issue can be found in the existing guidance developed by and for our chaplains, which we believe should be reiterated as part of any education and training concerning repeal.  Those regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and a chaplain’s duty to care for all.  Existing regulations state that chaplains “will not be required to perform a religious role...in worship services, command ceremonies, or other events, if doing so would be in variance with the tenets or practices of their faith.”  At the same time, regulations state that “Chaplains care for all Service members, including those who claim no religious faith, facilitate the religious requirements of personnel of all faiths, provide faith-specific ministries, and advise the command.”

Extensive additional discussion of religious objections  is found at pp. 134- 136 of the Report and in the Findings from the Qualitative Research Tasks, pp. 2, 15, 22-23, 71-72, 125-26, 135-37.  The Report along with additional supporting material is available at a special DOD web page devoted to DADT. The New York Times reports generally on today's developments.

Federal Court Issues Preliminary Injunction Against Oklahoma Anti-Shariah Amendments

Yesterday an Oklahoma federal district court issued a preliminary injunction barring the Oklahoma State Board of Elections from certifying the election results for State Question 755-- the state constitutional amendment that would prevent Oklahoma courts from considering international law or Shariah law. (See prior posting.)  In Awad v. Ziriax, (WD OK, Nov. 29, 2010), the court found that plaintiff, a Muslim, has standing to challenge the amendment because he has suffered injury in fact:

Plaintiff has sufficiently set forth a personal stake in this action by alleging that he lives in Oklahoma, is a Muslim, that the amendment conveys an official government message of disapproval and hostility toward his religious beliefs.... [I]t would be incomprehensible if, as plaintiff alleges, Oklahoma could condemn the religion of its Muslim citizens, yet one of those citizens could not defend himself in court against his government’s preferment of other religious views.

Second, plaintiff claims that his First Amendment rights will be violated by the invalidation of his last will and testament which incorporates various teachings of Mohammed. 

The court went on to find that plaintiff's facial challenge to the amendment is ripe for review.  Finally the court concluded that plaintiff had made a strong showing of the likelihood of success on his Establishment Clause claim:

While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff’s faith....

Additionally, the Court finds that plaintiff has made a strong showing that the amendment will foster an excessive government entanglement with religion. Because, as set forth above, Sharia Law is not “law” but is religious traditions that differ among Muslims, the Court finds that plaintiff has shown that to comply with the amendment, Oklahoma courts will be faced with determining the content of Sharia Law, and, thus, the content of plaintiff’s religious doctrines.

The Oklahoman reports on the decision.

UPDATE: On Tuesday, the Oklahoma State Election Board voted to appeal the district court's ruling. (Fox News 11/30).

Indian Court Says Census Information On Religion of Public Figures Is Confidential

In India, the Punjab and Haryana High Court yesterday ruled that the 2005 Right to Information Act does not authorize disclosure of the religion that an individual listed on his or her census form. Law et al News reports that  the case grew out of a request by an individual for information about the religion listed by United Progressive Alliance Party leader Sonia Gandhi and her family members. Section 15 of the Census Act of 1948 protects the confidentiality of census records. The court held that the later Right to Information Act did not change that protection because the RTI Act excludes from disclosure information that has no relationship to any public activity or interest. The court rejected the argument that disclosure of information about the religion of leaders of the nation is in the public interest.

Brooklyn Cop Forces Rabbi To Write On the Sabbath

Yesterday's New York Post reports on a run-in between a 27 year old Orthodox rabbi and Brooklyn police when Rabbi Sholom Emert was stopped for jaywalking after sundown on Friday.  Because the rabbi could not carry on the Sabbath, he had no identification. He offered to show his ID to the police if they would accompany him home. The police officer instead told him that he must write down his name.  Writing also violates the Sabbath, but the rabbi complied under threat of otherwise being detained.  Rabbi Emert says this is the first time in his life that he has broken the Sabbath.

Traditional Marriage Group Cannot Intervene In DOMA Challenge

In Benson v. Alverson, (MN Dist Ct., Nov. 24, 2010), a Minnesota state trial court denied a motion filed by the Minnesota Family Council seeking leave to intervene in a lawsuit challenging Minnesota' Defense of Marriage Act.  Plaintiffs in the case are three same-sex couples and the minor children of one of the couples. The Council is organized to defend traditional marriage, based on Judeo-Christian principles. The court concluded that lobbying for a law does not give an organization a sufficient interest to be entitled to intervention as of right.  In addition, the court concluded that the Council lacks standing to intervene in the case:

[A]lthough the Council attempts to cloak its interest in the nomenclature of organizational injuries and interest, the alleged interest is simply the expression of a desire that the DOMA as written be obeyed. The Council believes that same-sex marriage would harm society, but the Court finds no precedent equating societal non-economic harm to a private organization's injury-in-fact.

The Council had argued that if DOMA is struck down, it will have to divert resources to a campaign to restore a ban on same-sex marriage.  Yesterday's Minnesota Independent reported on the decision.

Religion Clause Chosen In ABA Top 100 Blogs; Voting On For Top 12

I am pleased to announce that Religion Clause has been chosen this year by the American Bar Association as one of the top 100 legal blogs.  Readers can now vote among those 100 for the top twelve-- one in each of the categories designated by the ABA.  To vote for your favorites, click here or on the icon in the side bar.

Pakistan Court Temporarily Bars Pardon For Christian Woman Sentenced To Death For Blasphemy

In Pakistan today, the Lahore High Court issued a temporary stay barring Pakistani President Asif Ali Zardari from issuing a pardon to Aasia Bibi (also known as Aasia Noreen), a Christian woman who has been sentenced to death on blasphemy charges. (See prior posting.) Continental News and Sify News report that the order comes after Bibi filed a clemency appeal with the President through the Governor of Punjab, Salman Tasseer. Tasseer, who believes the charges against Bibi were fabricated, assured her of a sympathetic response. However hard line Islamic parties began protests against the governor and any pardon. The court ruled that because the case was still in the courts, any pardon would be premature, and ordered the President and the Punjab governor to reply by December 6 when another hearing is scheduled.

Utah High Court Won't Block Jeffs' Extradition To Texas

Last week, the Utah Supreme Court refused to block the extradition of FLDS leader Warren Jeffs to Texas to face bigamy and sexual assault charges.  Washington Post  and Deseret News reported last week that the Utah high court issued a brief order lifting the stay on extradition that had been imposed by the Court of Appeals and cleared the way to implement the extradition agreement signed by the governors of Utah and Texas. Jeffs has previously been convicted of rape as an accomplice in Utah, but the Utah Supreme Court reversed the conviction because of faulty jury instructions. (See prior posting.) Jeffs argued that extradition while his case is on remand to the trial court will deny him a speedy trial. He also objected to provisions in the extradition agreement that would deny him bail in Texas. [Thanks to Modern Pharisee for the lead.]

All-Day Holiday Music Will Play Again This Year In Arizona Jail

In Phoenix, Arizona, Sheriff Joe Arpaio plans again this year to play Christmas music over speakers in his county jail for 12 hours a day. The Washington Times reports that the music will begin today with the playing of "Rudolph the Red Nosed Reindeer", Frosty the Snowman" and "Feliz Navidad.".  The sheriff has prevailed in six lawsuits-- most recently in December 2009-- in which inmates challenged the practice as a violation of their religious rights and as cruel and unusual punishment. So again this year, 8,000 inmates will hear multi-ethnic and culturally diverse holiday music all day during the holiday season. Apparently they can avoid the music only by remaining in their cells. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

Ban On Kosher Slaughter of Poultry In New Zealand Lifted After Disclosure of Improper Considerations By Agriculture Minister

According to today's Jerusalem Post, two days before a scheduled court trial on New Zealand's ban on kosher slaughtering, the parties have reached a settlement that allows kosher slaughter of poultry to resume. The government has also agreed to negotiate on kosher slaughtering of sheep. As a practical matter, kosher beef and most kosher mutton is imported from Australia anyway. The ban was put in place because of concern that kosher slaughtering takes place without the animals first being stunned. (See prior posting.) A temporary stay during pending litigation was entered in August. (See prior posting.)

According to today's New Zealand Herald, the government's change of heart came after it was disclosed in a High Court opinion released Friday that Agriculture Minister David Carter had a conflict of interest and improperly considered trade issues when originally imposing the ban. The opinion also indicated that Carter was unaware that kosher chicken could not be imported and that importing kosher lamb was very expensive.  Carter owns shares in two companies that export meat to Muslim countries.  New Zealand requires stunning of halal slaughtered animals, a practice to which some Muslims object. Officials of Silver Fern Farms, one of the  companies in which Carter holds shares, told Carter that their trade with Muslim countries would be adversely affected if the country allowed kosher slaughter to proceed without stunning, but required it for halal meat.

Hindu Group Seeks To Reclaim Religious Roots of Yoga

Today's New York Times carries a front page article on the efforts by the Hindu American Foundation to acquaint Americans with the Hindu religious foundations of yoga.  Its "Take Back Yoga" campaign has created a controversy over whether the roots of yoga pre-date Hinduism. Dr. Aseem Shulka, co-founder of the Hindu American Foundation, says that Hinduism has become a victim of "overt intellectual property theft" through yoga teachers who have commercialized the religion's spiritual wealth.

Recent Prisoner Free Exercise Cases

In Luke v. Willliams, 2010 U.S. Dist. LEXIS 123752 (D OR, Nov. 18, 2010), an Oregon federal district court dismissed an Intensive Management Unit prisoner's claims that correctional facility employees infringed his free exercise, RLUIPA and equal protection rights by interfering with his ability to practice Wicca. He alleged they denied him the ability to bring religious items into the prison yard, did not have a full time Wicca volunteer and denied him books from the general population Chapel Library and items from the Internet.

In Zajrael v. Harmon, 2010 U.S. Dist. LEXIS 123829 (D AR, Nov. 22, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 123780, Nov. 10, 2010) and dismissed claims that an inmate's free exercise rights and his rights under RLUIPA were infringed when authorities confiscated from his cell religious books and study materials in excess of the number of books permitted for prisoners in administrative segregation.

In Stilton v. Albino, 2010 U.S. Dist. LEXIS 124717 (D NJ, Nov. 23, 2010), a New Jersey federal court rejected an inmate's free exercise claim that for 12 days he was denied access to his personal property, including his Bible.

Rabbi Hoping To Be First Jew Elected To Uganda's Parliament

The London Jewish Chronicle reported yesterday that in Uganda, a 41-year old rabbi hopes to become the first Jewish member of Uganda's parliament. Rabbi Gershom Sizomu, who grew up in the country under Idi Amin, hopes to win a seat in February's elections to represent the area of Bungonkho North in the city of Mbale.  Sizomu is a member of the Abayudaya Jewish community founded by a military chieftain 91 years ago. Sizomu's campaign is centered on raising medical standards.  His campaign manager is a Muslim.  Some supporters of Sizomu's Muslim opponent are using religion as an issue-- urging residents to vote for a fellow-Muslim and raising fears that Sizomu could convert many Muslims to Judaism.

British Teen Charged After Facebook Posting of Her Burning Qur'an

The London Guardian yesterday reported that a 15-year old girl from a town near Birmingham has been arrested on suspicion of inciting religious hatred after she posted on Facebook a video of her burning an English language translation of the Qur'an. She has been released on bail. The video has now been removed and the incident was reported to the girl's school where it took place with other students looking on.

Court Rejects Challenges By Members To Their Expulsion From Religious Organization

In Khan v. Fiji Jamaat-Ul Islam of America, (CA Ct. App., Nov. 23, 2010), a California appellate court rejected a challenge by two individuals to their expulsion from membership in a religious organization by the organization's board.  The court said:

Here, the lower court found that Fiji Jamaat’s evidence established a deliberative process that was religious in nature. Specifically, the court found that the decision to expel appellants was based on a consideration of whether appellants’ conduct was improper, unbecoming, or likely to endanger the interest of Fiji Jamaat based upon the religious beliefs of the organization. This presents an ecclesiastical question, and the court correctly refused to consider appellants’ contentions pertaining to the reasons for expulsion in greater depth. The trial court stated that Fiji Jamaat abided by the terms of the bylaws for termination of membership, provided adequate notice of the charges brought against appellants, and afforded them an opportunity to be heard.

Atheist and Catholic Groups Compete Over Holiday Displays

A press release from American Atheists issued on Tuesday describes the latest jousting over holiday displays between the Atheist group and a Catholic organization that wants nativity scenes displayed this year in all 50 state capitols:

The Catholic League for Religious and Civil Rights announced over the weekend that it was purchasing and shipping the displays along with a letter to every governor claiming that the crèches would pass constitutional muster. League President Bill Donohue added that this was in reaction to a huge American Atheists billboard going up on November 27 at the entrance to the Lincoln Tunnel. The sign depicts the Christian nativity and Star of Bethlehem, declaring "You KNOW It's a Myth!"...

"The fact that the League is paying for the crèches does not automatically make them constitutional," said [AA President David] Silverman. "The governors will also have to welcome in a variety of secular displays -- and American Atheists feels that it is appropriate that they also have the opportunity to include something from Atheists and other non-believers."..... "We are offering to send every governor a placard with a reproduction of our [Lincoln Tunnel] billboard, and letter asking for 'equal time' in the public square next to the Catholic League display." ... [This will] test the commitment of state governments to Supreme Court guidelines on the matter, and free speech.

UPDATE: UPI shows a photo of the small creche that the Catholic League has sent to each governor for display in the capitol rotunda next to its Christmas tree. The League also informed each governor that its monthly journal Catalyst has published the names of each governor's chief of staff so readers can contact them if the creche does not appear.

White House Receives Report Urging More Faith-Based Involvement In Health and Development

On Tuesday, over 80 religious leaders and Obama administration officials gathered at the White House to receive a report from the newly formed Global Initiative for Faith, Health and Development. (OFNP Press release .) An 83-member international task force prepared the report which lays out a framework for engaging faith communities in advancing the cause of health and development. (Center for Interfaith Action press release.) The report, Many Faiths, Common Action: Increasing the Impact of the Faith Sector on Health and Development, among other things, recommends increasing collaboration within the faith community and with secular actors.

On a related matter, the White House announced that next Monday, First Lady Michelle Obama will host a conference call with faith and community leaders to obtain their involvement in her Let's Move! campaign to end childhood obesity.

Facebook Helps Israeli Army Find Women Falsely Claiming Religious Military Exemption

In Israel last Monday two Knesset (Parliament) committees held hearings on the exemption from military service granted to religiously observant Jewish women under present law.  According to the Jerusalem Post, women may obtain an exemption by signing a declaration that they maintain a religious life style, including not traveling on the Sabbath and eating only kosher food.  35% of Jewish women have signed such a declaration, but the army estimates that thousands of these are false.  Army investigators have used innovative techniques to discover the women who have filed false declarations according to committee testimony from Brig.-Gen. Amir Rogovsky.  Through Facebook, IDF investigators have discovered 1000 women who have lied. Some of the women posed for Facebook photos in immodest clothing that would not be worn by Orthodox women. Another woman was shown in a Facebook photo eating at a non-kosher restaurant. Investigators also sent invitations to Friday night parties to some women and caught those responding that they would attend.

Quebec Court Permits Class Action In Clergy Sex Abuse Case

In the Canadian province of Quebec, a Superior Court judge has for the first time in Quebec approved the filing of a class action on behalf of clergy sex abuse victims. Yesterday's Montreal Gazette reports that the suit has been brought against a religious order, Congregation du Tres-Saint-Redempteur, on behalf of all students of Seminaire Saint-Alphonse, in Ste. Anne de Beaupre, who were sexually abused by priests between 1960 and 1987. At least five priests, including the school's former director were involved. The suit alleges that the priests planned among themselves which boys would be victims.

Florida County Sues Homeowners Association Charging Religious Discrimination

On Tuesday, Hillsborough County, Florida filed a federal lawsuit against the Lake St. Clair Homeowners Association in Apollo Beach charging discrimination against an Orthodox Jewish homeowner who was a member of the association.  According to today's St. Petersburg (FL) Times, the lawsuit charges that in 2005 current homeowners association president James Knott told resident Richard D. First: "Your kind of people are not welcome here."  More recently in response to a request by First to see homeowner association records, First was told by Knott that board members were available only on Friday afternoons and Saturdays-- timing that would violate First's observance of the Sabbath. Knott denies charges of discrimination, saying that "First likes to run his mouth" and has "turned ... people off."

Iranian Christian Pastor Sentenced To Death For Apostasy

According to BosNewsLife, in Iran on Tuesday the 11th Chamber of the Assize Court in Gilan province sentenced Christian pastor Yousef Nadarkhani to death by hanging for apostasy.  Nadarkhani was born a Muslim, but converted to Christianity at age 19.  He has organized a house church and evangelical meetings inviting others to convert to Christianity. He was arrested after protesting enforced reading of the Qur'an.  Under Iranian law, the defendant has 20 days from the date the written verdict is handed donw to appeal to the Supreme Court.  No one has been executed for apostasy in Iran since 1990.

President Obama Issues Thanksgiving Proclamation

On Tuesday the White House issued a Presidential Proclamation declaring today as a "National Day of Thanksgiving." The Proclamation reads in part:

Thanksgiving Day is a time each year, dating back to our founding, when we lay aside the troubles and disagreements of the day and bow our heads in humble recognition of the providence bestowed upon our Nation.... 

In confronting the challenges of our day, we must draw strength from the resolve of previous generations who faced their own struggles and take comfort in knowing a brighter day has always dawned on our great land. As we stand at the close of one year and look to the promise of the next, we lift up our hearts in gratitude to God for our many blessings, for one another, and for our Nation. This Thanksgiving Day, we remember that the freedoms and security we enjoy as Americans are protected by the brave men and women of the United States Armed Forces....

This harvest season, we are also reminded of those experiencing the pangs of hunger or the hardship of economic insecurity.

Vatican Objects To Ordination In China

As reported by CNS, yesterday the Vatican issued a statement (full text) denouncing China for ordaining Rev. Joseph Guo Jincai without consent of the Vatican. Dozens of government officials attended the Mass at which 8 current bishops participated in the ordination. Emphasizing that it had clearly communicated its objections to the ordination to Chinese authorities several times this year, the Vatican said:

in recent days, various bishops were subjected to pressures and restrictions on their freedom of movement, with the aim of forcing them to participate and confer the episcopal ordination. Such constraints, carried out by Chinese government and security authorities, constitute a grave violation of freedom of religion and conscience. The Holy See intends to carry out a detailed evaluation of what has happened, including consideration of the aspect of validity and the canonical position of the bishops involved.

7th Circuit: Baha'i Groups Not Bound By Old Trademark Injunction

In National Spiritual Assembly of Baha'is of the United States of America Under the Hereditary Guardianship, Inc. v. National Spiritual Assembly of Baha'is of the United States of America, Inc., (7th Cir., Nov. 23, 2010), the 7th Circuit Court of Appeals refused to apply a 1966 injunction in a trademark infringement case to defendant religious groups finding that they were not in sufficient privity with the original defendants to be covered by the 40-year old injunction. At issue is the use of the Baha'i name by break-away U.S. Baha'i groups.

UPDATE: The case is discussed at greater length at Baha'i Rants.

Apartments Not Covered By Historic Preservation Exemption For Religious Property

In Or Khaim Hashalom v. City of Santa Monica, (CA App., Nov. 22, 2010), a California appellate court held that an apartment complex did not qualify for the exemption from historic preservation designation granted by state law to non-commercial property owned by a religious organization.  OKH, which incorporated as a religious organization several months after acquiring the building (and after landmark designation proceedings had begun) had applied to demolish it and use the land for housing for Jewish refugees from Iran and Iraq.  The court concluded that the property has always been a commercial enterprise and so is not covered by the exemption. The court said that the exemption is limited to property used for a religious institution's mission before the religious institution seeks to invoke the exemption.

OSCE Releases 2009 Hate Crimes Report

Yesterday the Organization for Security and Cooperation in Europe released its 2009 report on "Hate Crimes in the OSCE Region-- Incidents and Responses."  A release from Human Rights First called hate crimes a "serious challenge" for governments in the region.  Separate chapters in the report cover racist and xenophobic crimes and incidents; actions against Roma and Sinti; anti-Semitism; anti-Muslim actions; incidents against Christianity and other religions; and crimes against LGBT individuals and against the disabled.

No Private Action Under Federal Statute Barring Discrimination Against Health Care Workers

In Cenzon-DeCarlo v. Mount Sinai Hospital, (2d Cir., Nov. 23, 2010), the U.S. Second Circuit Court of Appeals held that there is no private right of action for either damages or inunctive relief under the federal statute barring discrimination in employment against health care workers who refuse to participate in sterilization or abortion procedures.  42 USC Sec. 300a-7(c) (the Church Amendment) bars recipients of federal funds from refusing to hire or promote, or from firing, employees with conscientious objections to such participation. Plaintiff, an operating room nurse, claimed she was coerced by her supervisors into participating in a late-term abortion procedure. The court concluded that the language of the statute does not indicate a Congressional intent to create a private remedy. [Thanks to Steven H. Sholk for the lead.]

Court Rejects Free Exercise Defense To Khat Possession Conviction

In State of Minnesota v. Ahmed, (MN Ct. App., Nov. 23, 2010), a Minnesota appellate court upheld defendants' convictions for possession of khat.  Finding that khat is a controlled substance, the court rejected defendants' free exercise defense.  It held that the U.S. Supreme Court's 2006 O'Centro decision is distinguishable.  It involved an interpretation of the federal Religious Freedom Restoration Act, and that statute is inapplicable to the states. Yesterday's Minneapolis Star Tribune reports on the decision.

TRO On Oklahoma Anti-Shariah Amendment Extended For A Week

After a two hour hearing yesterday, an Oklahoma federal district judge extended for another week the previously issued temporary restraining order (see prior posting) barring Oklahoma election officials from certifying the ballot results on a state constitutional amendment that precludes courts from considering Shariah law or international law in reaching decisions. The Oklahoman reports that plaintiffs are seeking a temporary injunction to prevent State Question 755 from taking effect, arguing that it targets Islam. The state argued that the purpose of the amendment is to prevent courts from using precepts of other nations or cultures in their decisions.

Montana High Court OK's Valedictorian's Religious References

In a 6-1 decision last week, the Montana Supreme Court held that school officials violated the free speech rights of a graduating senior when it censored on the basis of viewpoint her proposed valedictory remarks.  In Griffith v. Butte School District No. 1, (MT Sup. Ct., Nov. 19, 2010), school officials objected to the religious references in following passage in the prepared remarks of one of the co-valedictorians:

I learned to persevere these past four years, even through failure orndiscouragement, when I had to stand for my convictions. I can say that my regrets are few and far between. I didn’t let fear keep me from sharing Christ and His joy with those around me. I learned to impart hope, to encourage people to treat each day as a gift. I learned not to be known for my grades or for what I did during school, but for being committed to my faith and morals and being someone who lived with a purpose from God with a passionate love for Him.

The majority rejected any Establishment Clause conerns about the propoed seech, saying:

We find it unreasonable for the School District to conclude that Griffith’s cursory references to her personal religious beliefs could be viewed by those in attendance at the BHS graduation ceremony as a religious endorsement by the School District.

Justice Leaphart dissenting argued that the student's proposed remarks created Establishmnet Clause concerns:

Attendance at high school graduation is compulsory. The speakers chosen by the school clearly have a “captive” audience. The student body of a public school is presumably very diverse with a mix of Christians, Jews, Muslims, atheists, and agnostics, many of whom would resent being required to attend a ceremony in which Christ and His Joy was being shared with those present in the captive audience.

The Missolian reports on the decision.

New Center Will Study Marriage, Religion and Public Policy

According to today's Catholic Culture, Ave Maria law school has announced the creation of a new Center for Research on Marriage, Religion and Public Policy. Yesterday's National Catholic Register carried an interview with the Center's director, Maggie Gallagher. Emphasizing the importance of  "fighting for marriage and family in the political and legal arenas," Gallagher said:

Truth is truth. If marriage is the union of a husband and wife, because children need a mother and father, we can’t abandon non-Catholic children. We have an obligation in justice, as well as love, to fight against an unjust civil order that redefines marriage and its purposes.

The new Center's first conference was on "Children, Kinship, Psychological Health, and Identity Formation: The Cases of Divorce and Donor Insemination."

FBI Releases 2009 Hate Crimes Data

The FBI yesterday released its latest data on hate crimes.  Hate Crimes Statistics 2009 reports that there were 6,604 criminal incidents involving 7,789 bias-motivated offenses.  This is a drop of 15% from the year before and the lowest number reported in at least a decade.  However there are signifcant variances in the number of agencies participating and reporting from year to year. (Huffington Post.)  Of the 6,598 single-bias incidents in the latest report, 19.7% were motivated by religious bias.  Of these 1303 incidents motivated by religious bias, 931 were anti-Jewish, 107 were anti-Islamic, 51 were anti-Catholic, 38 were anti-Protestant and 10 were anti-Atheist/ Agnostic. (Table 1.) In 2008, there were 1606 hate crimes motivated by religious bias reported. (See prior posting.)

An ADL release welcoming the drop in hate crimes expressed disappointment that more than 60 cities with over 100,000 population did not submit data.

Egyptian Animal Rights Activists Wants Reform of Eid al-Adha Slaughter

A New York Times article Monday chronicles the efforts of Egyptian animal-rights proponent Amina Abaza to encourage more humane slaughtering methods on Eid al-Adha. The Muslim holiday, celebrated last week, commemorates the story of Abraham who was permitted to sacrifice a ram instead of his son. Traditionally Muslims slaughter a sheep, cow or camel, and divide the meat between themselves, relatives and the poor. In working class neighborhoods in Egypt, crowds watch butchers wrestle animals to the ground and slit their throats. Little boys play with the blood and teenagers help remove the entrails.  Activists say the butchers fail to abide by Islam's own requirements that the animal should not be mistreated and should not hear or see other animals being killed.

No RLUIPA Violations In Processing Use Permit Applications By Mosque

In Islamic Cultural Center of Monticello, Inc. v. Village of Monticello, (NY Sup. Ct., Nov. 17, 2010), a New York trial court found no RLUIPA violations in a village's handling of applications for a special use permit and a certificate of occupancy for a mosque and related parking lot. The court noted: "the mosque has been allowed to operate in the building for years without a special use permit or approved parking while the required municipal approval was being processed; and the parking lot across the street has also been used and continues to be used illegally..... [T]here certainly in not evidence of religious discrimination; rather, the record speaks to a community and local government endeavoring to accommodate the need for a house of worship for the local Islamic community."

Many Charter Schools In Texas Have Religious Connections

Today's Dallas (TX) Morning News reports on the blurring of church-state lines as over 20% of the state's publicly-funded charter schools have religious ties. Religious groups can set up separate non-profits to run charter schools. According to the paper:

Dozens of Texas charter school leaders or board members hold prominent positions in the church, where the schooling sometimes takes place. Parochial schools reinvent themselves as charters, often with little guidance on running a public school. And the mission of the school itself typically stems from the values of the religious group.

While most of the religiously affiliated charter schools are connected to Christian groups, in Houston one is operated by a Turkish Muslim group.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, An Overview of Tax Issues for Religious Congregations, (The Practical Tax Lawyer, Vol. 55, Fall 2010).
• Jeremy J. Patrick, Jeremy J., The Curious Persistence of Blasphemy, (November 17, 2010).
• Perry Dane, The Natural Law Challenge to Choice of Law, (The Role of Ethics In International Law, Donald Earl Childress III, ed., Cambridge University Press, 2010).
• Patrick McKinley Brennan , Lawmaking, Administration, and Traces of Civic Republicanism: Thought’s on Jean Porter’s Ministers of the Law, (Villanova Law/Public Policy Research Paper No. 2010-22, Nov. 18, 2010).
• Barbara P. Billauer, Message from Mt. Moriah: The Non-Permutable Law of War and Conflict, (October 18, 2010).
• Joan MacLeod Heminway, Martha Stewart and the Forbidden Fruit: A New Story of Eve, (Michigan State Law Review, Vol. 2009, p. 1017, Winter 2009).
• Tobias Lock, Religious Symbols in Germany, (November 15, 2010).
• Rahul Shrivastava, Protective Discrimination and Tribal Welfare in India, (November 19, 2010).

From SmartCILP:

• John Alan Cohan, Honor Killings and the Cultural Defense, 40 California Western International Law Journal 177-252 (2010).
• Liaquat Ali Khan, Protection of Languages and Self Expression under Islamic Law, 19 Journal of Transnational Law & Policy 61-122 (2009).
• Bruce Ledewitz, The New New Secularism and the End of the Law of Separation of Church and State, 28 Buffalo Public Interest Law Journal 1-30 (2009-2010).
• Article, Reply & Response. In Celebration of Steven Shiffrin's The Religious Left and Church-State Relations. Article by Kent Greenawalt; reply by Bernadette Mayler; response by Steven H. Shiffrin. 19 Cornell Journal of Law & Public Policy 741-772 (2010).
• Symposium. Twenty Year Anniversary of Employment Division v. Smith: Reassessing the Free Exercise Clause and the Intersection Between Religion and the Law. Introduction by Marci A. Hamilton; articles by Richard F. Duncan, Mark S. Kende, Zackeree S. Kelin, Kimberly Younce Schooley, David S. Day, Matthew L.M. Fletcher and student Jessica L. Fjerstad. 55 South Dakota Law Review 385-562 (2010).

Canadian Court Will Hear Challenge To Polygamy Law Today

Today the Supreme Court of the Canadian province of British Columbia will begin to hear arguments on the validity Criminal Code Sec. 293, Canada's laws banning polygamy.  The Toronto Globe & Mail reports that over 30 witnesses are expected to testify, including members of the polygamous FLDS community of Bountiful. A number of organizations, on both sides of the issue, have been granted "interested person" status to make submissions to the court. The province's attorney general decided to bring the reference case to ask the court to clarify the validity of the polygamy ban under Canada's Charter of Rights and Freedoms after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

Does New Atlanta Public School Official Have Too Religious An Agenda?

Atlanta (GA) Journal Constitution reporter Maureen Downey yesterday questioned the focus the newly selected chief of staff for the Georgia Department of Education will bring to his job.  Her concerns are based on blog postings by the new pick, Joel Thorton.  Among the views Thorton has posted online on his blog: "We cannot offer any type of spiritual help to struggling youth because we have no place for God in our schools." In a long blog post on home schooling, Thorton lamented hostility to Christianity found in many public school systems.

Religious Leaders Express Doubt About New Governor's Call For Faith-Based Social Services To Fill Budget Gaps

Today's Greenville (SC) News reports that a number of South Carolina religious leaders question whether Gov.-elect Nikki Haley's call for a coalition of faith-based organizations to fill the gaps in social services and educational programs that have been created by state budget shortfalls. Many congregations are also financially stretched, some worry about church-state questions, and others say that it is unfair to ask the portion of the population that are church members to pay for services that should be borne by all the taxpayers.

Company Settles With EEOC In Case Charging Religious Harassment of Jewish Employees

The EEOC announced last week that One Communications Corp. has settled a lawsuit filed against it by the EEOC charging religious harassment of three Jewish employees, one of whom resigned as a result.  The EEOC's lawsuit filed in a Pennsylvania federal district court charged that the company's vice president of sales regularly subjected the three account executives to harassment, including anti-Semitic remarks, and that the company failed to take effective remedial action. In the settlement, the company agreed to pay $66,000 in damages and agreed to a 5-year consent decree banning religious harassment or retaliation. The company will also provide training to all managers and employees at the Conshohocken, Pennsylvania facility where the violations occurred, and will post a remedial notice.

Lawsuit Filed Against San Antonio Archdiocese Alleging Cover-Up of Priest Abuse

The San Antonio (TX) Express News reports that on Thursday a lawsuit was filed against the Catholic Archdiocese of San Antonio accusing it of covering up the repeated sexual abuse of a 12-year old boy by a priest. The abuse of the victim, an altar boy in the Floresville Parish school, is alleged to have occurred in 1976-77 by priest Louis White who was associate pastor of Sacred Heart Church. White was removed from the priesthood in 1989. The suit also alleges that sometime during the past 18 months, a priest at Mass in the Floresville parish chastised anyone who planned to come forward ab out being abused. He suggested that instead they make penance for themselves and the abusing priest.

Recent Prisoner Free Exercise Cases

In Riggins v. Clarke, (9th Cir., Nov. 18, 2010), the 9th Circuit upheld a prison policy that required an inmate's committed name be used first on incoming and outgoing mail before any other official or religious name. It also rejected plaintiff's claim that his rights were violated by the refusal to allow him to buy prayer oils.

In Bonner v. Randle, 2010 U.S. Dist. Lexis 120717 (CD IL, Nov. 15, 2010), an Illinois federal district court  held that a Muslim inmate had adequately alleged a violation of the Establishment Clause.  Plaintiff claimed that his regularly scheduled Narcotics Anonymous class was combined with Christian religious services and he was required to attend and submit a written summary of what he learned from the Christian speaker.

In Taylor v. Grannis, 2010 U.S. Dist. LEXIS 121103 (ND CA, Oct. 28, 2010), a California federal district court dismissed on res judicata grounds an inmate's complaint that he was not permitted to use tobacco for his "Wheel of Love" religious ceremony.

In Ashby v. Sherman, 2010 U.S. Dist. LEXIS 120735 (WD WA, Nov. 12, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist LEXIS 120742, Oct. 1, 2010) and dismissed an inmate's complaint that he was not allowed to attend the Eid ul-Fitr feast and that an exclusive Nation of Islam Eid feast was not held.

In Burnight v. Sisto, 2010 U.S. Dist. LEXIS 120975 (ED CA, Nov. 15, 2010), a California federal magistrate judge concluded that nothing in the record of petitioner's parole hearing indicated that he was required to attend the religiously-based Alcoholics Anonymous program even though the parole board discussed his participation in it. Nor did petitioner ever indicate to prison officials that his Wicca religion conflicted with AA.

In Searles v. Werholtz, 2010 U.S. Dist. LEXIS 121339 (D KS, Nov. 15, 2010), a Kansas federal district court dismissed an inmate's complaint that he was denied a kosher diet because defendants who were employees of Aramark food service were never served with process.

Pope Quoted In New Book Suggesting Use of Condoms To Prevent HIV Is Permissible In Some Cases

Associated Press and the Guardian today reports on excerpts from a long interview with Pope Benedict XVI taken from a new book to be released Tuesday.  The excerpts published  yesterday by the Vatican newspaper L'Osservatore Romano are from the book Light of the World: The Pope, the Church, and the Signs of the Times by German journalist Peter Seewald.  The remarks suggest a modification of the Church's stance on the use of condoms to prevent AIDS.  Previously some Church officials had said that abstinence and fidelity are the only way to stop the spread of HIV, while the Pope had merely said that condom use exacerbates the AIDS crisis. Now the Pope is quoted as saying that in some cases, such as for male prostitutes, the use of condoms "in the intention of reducing the risk of infection" could represent "a first step in the direction of moralisation, a first assumption or responsibility, on the way toward recovering an awareness that not everything is allowed and that one cannot do whatever one wants." Theologians suggest that the Pope may be applying the notion that an evil act can be tolerated where it is performed for an intended good, or that where the intended purpose is to protect from disease rather than trying to block pregnancy use is permissible.

Appeals Court Reverses Decision On Validity of Replacing Episcopal Bishop

In Schofield v. Superior Court of Fresno County, (CA App., Nov. 18, 2010), a California appellate court held that in a lawsuit brought by the Episcopal Church to establish its title to property of the break-away San Joaquin Diocese, the trial court must apply neutral principles of law to determine ownership of the property.  It held that the trial court had erred in preliminarily deciding who is the rightful bishop of the Diocese of San Joaquin. The trial court had approached the issue by deciding that the Diocese's attempt to withdraw from the national church was ineffective and that therefore the national church's replacement of the incumbent bishop John-David Schofield by Jerry A. Lamb as provisional bishop was valid.  The Court of Appeals held instead that the validity of the removal and appointment of a bishop is a matter of ecclesiastical law as to which the determination of the Episcopal Church controls. So the issue remaining for the trial court is the validity of property transfers allegedly made by Schofield before he was replaced. That is to be decided by reference to "general California statutory and common law principles governing transfer of title by the legal title holder, the law of trusts, including the establishment of trusts and transfers by a trustee in contravention of a trust upon the property (if a trust is established by the evidence), and corporations law...." (See prior related posting.) Anglican Curmudgeon discusses the decision and the controversy over its implications at length.

Maryland County Concedes, Settling RLUIPA Land Use Lawsuit In Mid-Trial

Both The Capital and the Maryland Daily Record report that on Thursday in the midst of a RLUIPA trial, Anne Arundel County, Maryland signed a settlement in the lawsuit brought against it by Riverdale Baptist Church which sought to build a school on 57 acres of land it owns.  Initially, in 2004, county planners approved the plans, but after objections by neighbors the County Council passed two new zoning restrictions that effectively prevented building of the school. The county attorney admitted in court that the county had targeted the church with its new legislation and had timed the legislation so it would not affect two other private schools.  The settlement-- agreed to on the 12th day of trial just before the county's last witness took the stand-- will allow the Riverdale Baptist to build its school and also awards $3.25 million in damages to the church. The complaint asked for $8.7 million.  In 2008 the parties negotiated a settlement that would have cost the county only $300,000, but at that time the County Council refused to approve its terms. [Thanks to Roman P. Storzer for the lead.]

County Takes Control of Holiday Displays

The Chester County Daily Local reports that yesterday the Chester County, Pennsylvania commissioners voted 2-1 to have the county place its own holiday displays at the Historic Courthouse, eliminating the rivalry of past years between those erecting Christian and Jewish displays and a secular group that has put up a Tree of Knowledge. Tension between the Pastors Network and the Freethought Society were particularly intense last year as the Tree of Knowledge displayed book titles as ornaments and included titles such as "The God Delusion." The new resolution calls for the county to put up displays to celebrate the traditions of the holidays, to support the troops, celebrate peace and promote commerce. The resolution says the displays will comply with constitutional limitations. A member of the Freethought Society which opposed the new arrangement told commissioners: "This is about you deciding whether atheists are people, too...."

9th Circuit Will Permit Live C-SPAN Broadcast of Arguments In Prop 8 Appeal

According to today's San Francisco Chronicle, the U.S. 9th Circuit Court of Appeals has decided that C-SPAN  will be permitted to broadcast live the appeals court arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of California's Proposition 8 that bars same-sex marriage. The two-hour arguments scheduled for 10:00 a.m. on December 6 will be split between arguments on standing and arguments on the constitutionality of Proposition 8. (9th Circuit order on oral arguments.) Attempts to allow limited televising of the federal district court trial in the case were ultimately prevented by a U.S. Supreme Court decision finding that the district court followed improper procedures in adopting its rule permitting broadcasting. (See prior posting.)

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).