Senate Confirms 4 EEOC Recess Appointees

The U.S. Senate last week (Dec. 22) confirmed four of President Obama's long-pending nominations to positions at the Equal Employment Opportunity Commission. An EEOC press release announces the confirmation of Jacqueline A. Berrien to be EEOC Chair; Chai R. Feldblum and Victoria A. Lipnic to be Commissioners; and P. David Lopez as General Counsel. In March the President had given recess appointments to these four (see prior posting).  Christian conservatives had objected particularly to Feldblum's nomination as the first openly gay or lesbian person to be nominated to the EEOC. (See prior posting.) The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

En Banc Rehearing Granted In Suit Over Student Distribution of Religious Themed Materials

Earlier this month, the U.S. 5th Circuit Court of Appeals issued an order granting an en banc rehearing in Morgan v. Swanson.  A 3-judge panel in the case refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. Though the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) [Thanks to Don Byrd for the lead.]

Top Ten 2010 Religious Liberty/ Church-State Developments

Here are my nominations for the 2010 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. Most of these top ten were reflected in a number of Religion Clause postings over the year. I have linked to representative postings on each issue.

• (1) Ground Zero Mosque becomes national political issue while opponents of Tennessee mosque argue that Islam is not entitled to protection as a religion.
  
• (2) California federal district court invalidates Proposition 8, the California initiative that bars same-sex marriage.
  
• (3) Oklahoma voters approve anti-Shariah state constitutional amendment; court enjoins certification of results.
  
• (4) France bans wearing of burqa in public.
  
• (5) Leaders of women's Catholic religious orders split with bishops over health care reform proposals.
  
• (6)  Florida church creates international furor by proposing "Burn a Qur'an Day" for 9-11 anniversary. Eventually event is cancelled.
  
• (7) Military chaplains oppose repeal of Don't Ask Don't Tell.
  
• (8) Supreme Court upholds Hastings College of Law policy of requiring student religious groups to accept anyone as member in Christian Legal Society v. Martinez.
  
• (9) Federal district court declares that federal statute designating National Day of Prayer is unconstitutional.
  
• (10) 9th Circuit upholds pledge of allegiance, and "in God We Trust" on coins and currency, against Establishment Clause challenges.

Religion Newswriters Association and Huffington Post have their own Top Ten lists of religion stories.

Australian Anti-Discrimination Law Exempts Religious Foster Care Agency

In OW and OV v Members of the Board of the Wesley Mission Council, (NSWADT, Dec. 10, 2010), the Administrative Decisions Tribunal of the Australian state of New South Wales held that the New South Wales Anti-Discrimination Act does not require a religiously-sponsored social service organization to approve same-sex couples as foster care providers. Section 56 of the Act exempts any act or practice of a religious body "that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion." Here, Wesley Mission believed that a monogamous heterosexual partnership in marriage should be the role model for children for whom it provides foster care. Sydney's Daily Telegraph today reports on the decision.

South Korean Parliament Fails To Act On Tax Benefits For Sukuk At Urging of Christian Groups

Arab News reports today that the South Korean National Assembly failed to approve a bill introduced by the Ministry of Finance that would have given tax neutrality to Shariah-compliant financial instruments. It would have given sukuk (Islamic bonds) the same tax treatment as conventional bonds.  According to this report, some members of the National Assembly have been heavily lobbied by Christian evangelical groups, some of which have close ties to groups in the United States. The Korean Association of Church Communication is among the groups that have generated concern that approval would facilitate the flow of funds to terrorist groups.

Recent Articles of Interest

From SSRN:

• Reid Krell, And the Spirit of the Lord Spake within Them: Biblical References by State Supreme Courts, 1900-1999, (December 20, 2010).
• Charles Hillel Baron, Blood Transfusions, Jehovah’s Witnesses, and the American Patients’ Rights Movement, (Alternatives to Blood Transfusion in Transfusion Medicine, Alice Maniatis, Phillipe Van der Linden, Jean-François Hardy, eds., Wiley-Blackwell, 2010).
• Allen Mendenhall, The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India, (Libertarian Papers, Vol. 2, No. 44, 2010).
• Robert C. Blitt, The Bottom Up Journey of 'Defamation of Religion' from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas,  (December 22, 2010).
• Micah Schwartzman, The Ethics of Reasoning from Conjecture, (Journal of Moral Philosophy, Forthcoming).
• Seth Barrett Tillman, The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment and Assassination, (2010).
• Susan Haack, Belief in Naturalism: An Epistemologist's Philosophy of Mind, (Logos Episteme, Vol. 1, No. 1, pp. 67-83, 2010).
• Arthur J. Jacobson, Prophecy as Expertise, (Hebraic Political Studies, Vol. 4, No. 4, pp. 329-336, Fall 2009).

European Project On Religious Diversity and Secular Models Launches Website

RELIGARE, a project funded by the European Commission that brings together 13 European universities and research centers, has launched a website.  The project's longer descriptive title is Religious Diversity and Secular Models in Europe-- Innovative Approaches to Law and Policy. The website includes publications, documents, case summaries and more. A link now appears on the Religion Clause sidebar under Resources. [Thanks to Prof. Rafael Palomino for the lead.]

Teacher Loses Challenge To School's Demand She Apologize For Her Class On Evolution

In Hensley v. Johnston County Board of Education, 2010 U.S. Dist. LEXIS 135926 (ED NC, Dec. 23, 2010), a North Carolina federal district court dismissed free speech, equal protection and religious discrimination claims by an 8th grade science teacher who refused to apologize to parents over her method of teaching evolution and dealing with religious objections to evolutionary theory.  After a parent complained that teacher Pamela Hensley was antagonistic to "true Christian" students, the school presented Hensley with a letter to sign to go out to parents apologizing for the manner in which she conducted the class discussion about God, religion and evolution. Ultimately she refused to sign the letter and was transfered to a different school. The court concluded:

her decision not to send the letter requested by her employer, in her capacity as a teacher, is not protected by the First Amendment. Because Hensley was asked to speak in her official capacity as a public employee, her refusal to speak does not give rise to a claim for violation of her First Amendment rights....

Recent Prisoner Free Exercise Cases

In McKinnon v. Watson, 2010 U.S. Dist. LEXIS 133550 (WD VA, Dec. 17, 2010), a Virginia federal district court granted summary judgment to prison officials who had been sued by a Nation of Islam prisoner for delay in approving his religious diet request. The court held that defendants had qualified immunity.

In Norman v. Small, 2010 U.S. Dist. LEXIS 133507 (SD CA, Dec. 14, 2010), an inmate alleged among other claims that his free exercise rights were violated because prison policy allowed him to be searched in front of female officers in violation of his Islamic religious beliefs. A federal magistrate judge recommended (2010  U.S. Dist. LEXIS 133557, July 29, 2010) that this claim be dismissed both for failure to exhaust administrative remedies and for failure to state a claim. The district court adopted the recommendation to dismiss on exhaustion grounds, but said it would therefore not address whether the claims should also be dismissed on the merits.

In Wilder v. Sutton, 2010 U.S. Dist. LEXIS 134677 (SD IL, Dec. 21, 2010), an Illinois federal district court permitted a Wiccan prisoner to go to trial on claims that his rights  under the 1st and 14th Amendments were violated when his requests for materials that would permit him to practice his religion were ignored and he was told he could not practice his religion in prison.  However the court held that damages are not available in either individual or official capacity claims under RLUIPA (which he also invoked) and that his claim for an injunction is moot because he had been transfered to a different facility.

In Cullen v. Pennsylvania Department of Corrections, 2010 U.S. Dist. LEXIS 134882 (WD PA, Dec. 21, 2010), a Pennsylvania federal district court rejected that an inmate's complaint that his free exercise rights were infringed when his refusal to take part in a Therapeutic Community program was used against him in considering his parole. Plaintiff failed to allege his religious beliefs or how they were impinged. He alleged primarily that program required that inmates inform on one another's behaviors and prohibited the use of the words "God" or "Higher Power" in program sessions.

In Young v. Ericksen, 2010 U.S. Dist. LEXIS 134606 (ED WI, Dec. 20, 2010), a Wisconsin federal district court permitted a Muslim inmate who was held in protective custody and denied the right to attend group Jum'ah services, as well as being denied a visit by a volunteer imam, to proceed with his free exercise and RLUIPA claims.

Proposals In Pakistan To Temper Blasphemy Law Meet With Street Protests

CNN reported yesterday that Pakistan's federal minister for minority affairs has announced the formation of a committee of scholars to review the country's blasphemy laws to prevent them from targeting innocent people. The move comes in the wake of a controversial death sentence for blasphemy imposed on a Christian woman, Asia Bibi. Pakistan's President says he would pardon Bibi, but a court has ruled that the president cannot grant a pardon while the case is still working its way through the courts. (See prior posting.) Press TV reports that thousands of Pakistani Muslims demonstrated in major cities around the country protesting a bill that has been introduced into Parliament that would remove the death penalty for blasphemy.

White House Sends Christmas Greetings

CNN has the full text of the Weekly Address by the President, this week joined by the First Lady, wishing everyone a Merry Christmas. The President said in part:

Because this is the season when we celebrate the simplest yet most profound gift of all: the birth of a child who devoted his life to a message of peace, love, and redemption. A message that says no matter who we are, we are called to love one another – we are our brother’s keeper, we are our sister’s keeper, our separate stories in this big and busy world are really one....

[W]e're encouraging Americans to ask what you can do to support our troops and their families in this holiday season. For some ideas on how to get started, just visit Serve.gov..... America's brave servicemen and women represent a small fraction of our population. But they and the families who await their safe return carry far more than their fair share of the burden. They've done everything they’ve been asked to do..... So let’s all remind them this holiday season that we’re thinking of them – and that America will forever be here for them, just as they've been there for us.

The White House website today also carries an interview with Diane Roussel-Dupre, the "Santa Tracker Head Researcher" at the Department of Energy's Los Alamos Laboratory. Here is part of the interview:

Q: What is the hardest part of keeping track of Santa?

Diane Roussel-Dupre: Because of his wish to surprise, Santa does not file a flight path with the Federal Aviation Administration, so we never really know where he will be.

Q: What technologies do you use?

Diane Roussel-Dupre: We believe that Rudolph's glowing, bright red nose puts out optical and infrared light that makes him easy to detect, allowing an optical camera on FORTE to give us a glimpse of Santa and his team. Also, the Federal Aviation Administration requires Santa to fly with a radio transponder on his sleigh, similar to what airplanes use, to ensure flight safety around the world. This transponder can be detected with the radio receiver that flies on-board both the FORTE and Cibola Flight Experiment (CFE) satellites. We will also be using the star cameras on the CFE satellite to look for Rudolph and the rest of the reindeer pulling Santa's sleigh.

4th Circuit Rejects Establishment Clause Challenge To County's Role In Development That Includes Church

In Glassman v. Arlington County, Virginia, (4th Cir., Dec. 23, 2010), the U.S. 4th Circuit Court of Appeals rejected an Establishment Clause challenge to Arlington County, Virginia's participation in the financing and construction of a ten story building that houses a church on the first two floors and apartments on the upper 8 floors. Plaintiff unsuccessfully argued that (1) the County had engaged in disguised funding of the church by overvaluing the affordable housing units in the project; (2) the physical layout of the building, in which the apartment tenants will pass through church property, creates a religious overtone to the project; and (3) the County became excessively entangled with the church when it appointed a representative to the Church-controlled board of the non-profit corporation that will over see construction of the project. (See prior related posting.)

Woman Challenges Virgin Islands License Photo Rule

Yesterday's Virgin Island Daily News reports that a Muslim woman is challenging a policy of the Virgin Islands Bureau of Motor Vehicles that allows her to have her drivers' licence photo taken wearing her hijab (head scarf) only if she produces a letter from her imam.  License applicant Nailah Jamil says she was told she needed a notarized affidavit from the imam, though now authorities say notarization is not required. The Council on American-Islamic relations has sent a letter to the BMV director on behalf of Jamil saying that the Virgin Islands' photo policy is "contrary to all federal, state and local government photography guidelines, which provide for religious exemptions."

New Minnesota Judge Pick Represented Conservative Christian Groups

The Minnesota Independent reports that on Tuesday, Minnesota's Gov. Tim Pawlenty appointed attorney Jamie L. Anderson to a vacancy created by a retirement on the state's 4th District (Hennepin County) Court. Anderson is the wife of the Governor's chief of staff and has represented conservative religious groups in high profile cases.  She represented the Minnesota Family Council in its effort to intervene as a defendant in a case challenging Minnesota's ban on same-sex marriage. In 2009, she was one of the lawyers who represented the Child Evangelism Fellowship of Minnesota in a case in which it was seeking an equal right with secular groups to to send Christian literature home with students. In 2007, Anderson was a lobbyist for born-again-Christian Frank Vennes who was a large donor to evangelical groups. However Anderson's primary areas of practice are business law, wills and trusts, probate and real estate. In appointing Anderson, Gov. Pawlenty bypassed the state's Commission on Judicial Selection which makes recommendations to the governor.  Legally governors may bypass the Commission and others have also done so.

Pakistan's Federal Shariat Court Asserts Expanded Jurisdiction; Invalidates Provisions of Women's Protection Act

On Wednesday, according to Business Recorder, Pakistan's Federal Shariat Court (FSC) declared three sections of the 2006 Women's Protection Act void, finding that the provisions violate Section 203DD of Pakistan's Constitution. That section defines the jurisdiction of  the FSC as including the power to reveiw the finding of any criminal court under any law relating to the enforcement of Hudood. An editorial from the Pakistan's Daily Times describes the effect of the FSC's ruling. It says that the FSC decision:

seeks to restore the primacy of Hudood laws in cases relating to the offence of zina (adultery) and qazaf (false accusation of adultery), which have a long history of abuse and injustice. The Women’s Protection Act 2006 omitted two sections of the Hudood Ordinances which, to some extent, reduced the likelihood of abuse of these laws against women accused of adultery. Their cases could now be tried under the Pakistan Penal Code, instead of exclusively under the Hudood Ordinance. 

However, not only did the FSC declare Sections 11, 25, 28 and 29 of the Women’s Protection Act 2006 un-Islamic and unconstitutional on the premise that the overriding effect of the Hudood Ordinances over other laws could not be taken away, it also asserted that the jurisdiction to hear appeals under any law relating to ten offences covered by the term ‘hudood’ for the purpose of Article 203 DD of the constitution lies with the FSC and not the high courts. The FSC thus gave parliament time till June 22, 2011 to make amendments to the Women’s Protection Act to restore these clauses, otherwise the court’s verdict would stand and these clauses would be considered restored. The court also directed the government to amend the Control of Narcotic Substances Act of 1997 and Anti-Terrorism Act 1997 to lay down a procedure for filing of appeals to the FSC instead of a high court for such offences.... 

According to the Business Recorder, the ten offenses over which the FSC has asserted jurisdiction are: Zina (adultery), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of adultery), Shurb (alcoholic drinks/intoxicants/narcotics etc), Sarqa (theft simplicitor), Haraba (robbery, highway robbery, dacoity - all categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code), Irtdad (apostasy), Baghy (treason), Qisas (right of retaliation in offences against human body) and human trafficking.

TSA Procedures Continue To Offend Some On Religious Grounds

Today's Washington Post carries an article titles TSA Procedures Offend Followers of Many Faiths. It reports that while Muslim women are particularly offended by the full body scanners in use at airports, they are not alone. Sikhs (who are often required to remove their turbans), some Orthodox Jews and some evangelical Christians also object on religious grounds, citing modesty concerns. Some say that TSA's rules that call for secondary screening for those wearing "bulky clothing" are applied subjectively with a bias against religious headgear.

High School Teacher In Spain Sued By Muslim Family For Discussing Ham

Hudson New York reports on a lawsuit filed recently in Spain by parents of a Muslim high school student charging a high school geography teacher with violating Article 525 of the Spanish Penal Code that makes it illegal to "offend the feelings of members of a religious confession." José Reyes Fernández, a teacher at Menéndez Tolosa, a school in the town of La Línea de la Concepción, was focusing on the different climates in Spain. He said that the climate in Andalusia was perfect for curing Spanish ham. A Muslim student interrupted and said that talk of pork products is offensive to his religion. According to the article, this lawsuit follows several other controversies in Spain with members of the Muslim community. For example, in September a recently reopened night club in the southern Spanish resort town of Aguilas was pressured by Muslims to change its name from La Meca. The owners also agreed to change some of club's architecture such as a minaret-like tower that Muslims found offensive.

No Federal Jurisdiction Over Claim Against Church Alleging Homosexual Activities

In Hayes v. Wooten, 2010 U.S. Dist. LEXIS 134569 (ED NC, Dec. 14, 2010), a North Carolina federal district court dismissed a federal lawsuit against Elevation Baptist Church and several of its leaders by a pro se plaintiff who alleged various claims growing out of his attendance at a group discussion at which he claims homosexual approaches were made to him and his attendance with his son at a church event called "Boys to Men" which he claims turned out to have a "very homosexual character in nature and spirit." The court found no federal jurisdiction over the claims-- many of which were claims under state law. No diversity of citizenship existed; no facts were plead to support plaintiff's Title VII claim; and insofar as a First Amendment "conspiracy to violate religious expression" claim was alleged, no state action was involved.

UN Approves US-Led Campaign To Restore Reference To Sexual Orientation In Resolution Against Arbitrary Executions

Yesterday by a vote of 93 to 55 with 27 abstentions, the United Nations General Assembly approved a United States sponsored move to restore a reference to sexual orientation in a resolution that condemns extrajudicial, summary and arbitrary executions. Reuters reports that the resolution condemns killings for racial, national, ethnic, religious or linguistic reasons and killings of refugees, indigenous people and other groups. Similar resolutions in prior years also referred to sexual orientation, but this year a General Assembly committee approved a proposal by Arab and African nations to eliminate that reference. The United States led the effort to restore the reference. According to Politico, the U.S. though ended up abstaining when the overall resolution including the reference to sexual orientation was put to a vote. The U.S. action was for totally different reasons-- concern that the resolution obscures the relationship between international humanitarian law and human rights law.

After the U.N. vote approving the U.S. proposal, the White House issued a statement (full text) reading in part:

President Obama applauds those countries that supported the amendment offered by the United States to ensure that "sexual orientation" remains covered by the United Nations resolution on extrajudicial, summary, and arbitrary execution. Killing people because of their sexual orientation cannot be rationalized by diverse religious values or varying regional perspectives. Killing people because they are gay is not culturally defensible – it is criminal.

While today’s adoption of an inclusive resolution is important, so too are the conversations that have now begun in capitals around the world about inclusion, equality, and discrimination. Protecting gays and lesbians from state-sponsored discrimination is not a special right, it is a human right.

Lawsuit Claims Transportation Utility Fee Is Illegal Disguised Property Tax On Churches

On Monday, a lawsuit was filed in state court in Kansas on behalf of a Baptist and a Catholic church challenging a new tax provision adopted by the city of Mission, Kansas.  The complaint (full text) in First Baptist Church of Mission v. City of Mission, (Johnson Co. Dist. Ct., filed 12/20/2010), argues that the city's Transportation Utility Fee is in reality a property tax levied on churches that are exempt under state law from property taxation. The tax is based on the average number of vehicle trips which it is estimated are generated by a property each year.  For houses of worship, this is based on the number of seats in the building's worship area. The proceeds of the tax are used for street repairs and transit system maintenance.  An Alliance Defense Fund press release announcing filing of the case characterizes the Transportation Utility Fee as a tax that punishes churches based on their attendance.

Split 10th Circuit Denies En Banc Review In Utah Highway Patrol Cross Case

The 10th Circuit Court of Appeals this week by a 5-4 vote denied an en banc rehearing in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). The 4 dissenting judges filed two opinions detailing their concerns about the 3-judge panel's ruling handed down in August. That decision held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. [corrected]. (See prior posting.) Urging en banc review, Judge Kelly writing for all four dissenters said:

The court’s decision continues a troubling development in our Establishment Clause cases—the use of a "reasonable observer" who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion.

A second dissent from denial of review written by Judge Gorsuch and joined by Judge Kelly said in part:

Our court has now repeatedly misapplied the "reasonable observer" test, and it is apparently destined to continue doing so until we are told to stop.... It seems we must ... take account of our observer's selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia.

[Thanks to Don Byrd for the lead.] 

Human Rights Watch Publishes Its Stance On Europe's Ban on Muslim Veils

In response to the growing trend in European countries to ban religious dress in public places-- particularly face coverings worn by Muslim women-- Human Rights Watch yesterday published Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. It says in part:

Human Rights Watch takes no position on whether the wearing of the headscarf or face covering veils is desirable. We oppose both policies of forced veiling and blanket bans on the wearing of religious dress. Insofar as religious freedom is involved, we defend this right in the same spirit we defend freedom of expression - we uphold the right to express opinions which some deem contrary to the principles of human dignity, tolerance and respect, and which may deeply offend, because of the fundamental importance of freedom of religion and expression in democratic societies.

We also oppose laws prohibiting civil servants, including teachers, from wearing religious symbols at work, unless it has been shown that those symbols have a direct impact on their ability to perform their jobs.

6th Circuit Majority Holds Zoning Challenge By Religious Order Is Not Ripe

In Miles Christi Religious Order v. Township of Northville, (6th Cir., Dec. 21, 2010), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. Plaintiff, a Catholic Religious Order, had not appealed to the zoning board of appeals the township's demand for a site plan for continued use of its property. In response to the Order's argument that the township's actions chilled its constitutionally protected activity, the majority said:

a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities.

Chief Judge Bachtelder dissenting argued that: "the majority opinion does not adequately account for the First Amendment implications of this case and conflates the exhaustion of administrative remedies with the obtaining of a final decision...." [Thanks to Brian D. Wassom for the lead.]

6th Circuit: Collateral Estoppel Bars Relitigation of State Secrets Dismissal of Civil Rights Claim

In Tenenbaum v. U.S. Department of Defense, (6th Cir., Dec. 20, 2010), the U.S. 6th Circuit Court of Appeals held that the doctrine of collateral estoppel prevents plaintiffs from relitigating the application of the "state secrets" doctrine to their claim against the federal government. Plaintiff David Tenenbaum, a civilian employee of the Army, was subjected to an intensive investigation in 1997 over allegations that he had revealed classified information to the Israeli government. In 1998, Tenenbaum and his wife sued for violation of their civil rights, including an allegation that Tenenbaum's religion was a factor in the government's deciding to investigate him. That suit was dismissed when the government asserted that it could not mount a defense without disclosing state secrets. Following submission by DOD Inspector General of a report on the matter to the U.S. Senate Armed Services Committee in 2008, plaintiffs filed the present lawsuit alleging that defendants knowingly lied when they asserted the state secrets privilege in 1998. The Court held, however, that the question of whether the state secrets privilege had been properly invoked had already been litigated in 1998. Yesterday's Chicago Tribune reports on the decision. (See prior related posting.)

Italian Court Refuses To Release Vatican Funds Held In Money Laundering Probe

For a second time, a court in Italy has refused to release $30.2 million in funds belonging to the Vatican Bank (the Institute for the Works of Religion) seized in September by Italian authorities in a money laundering investigation. (See prior posting.) The funds were in a Vatican Bank account at the Rome branch of Credito Artigiano SpA.  According to AP yesterday, court documents show that prosecutors suspect that clergy may have been front men for corrupt businessmen or mobsters.

11th Amendment Protects Against Official Capacity, But Not Individual Capacity, Suit Against Judge

In Pucci v. Nineteenth District Court, (6th Cir., Dec.16, 2010), the U.S. 6th Circuit Court of Appeals held that a state court and its judge in his official capacity have 11th Amendment immunity in a suit by the former deputy court administrator who claims she was dismissed in retaliation for her complaints to state officials about the judge's use of religious language from the bench. The 6th Circuit went on to hold, however, that plaintiff may sue the judge in his individual capacity for declaratory and injunctive relief. The court concluded Chief Judge Mark Somers did not have qualified immunity as to plaintiff's due process or First Amendment claims against him. Local attorneys as well as plaintiff complained about Somers.  The 6th Circuit included this excerpt from the record setting out complaints about the judge's conduct:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] . . . [according to Foran,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during . . . Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

 Courthouse News Service reports on the decision. (See prior related posting.)

Virginia Legislator Plans To Propose Barring Gays From National Guard Service

Conservative Virginia state legislator Bob Marshall is raising a new kind of constitutional issue by his plans to introduce legislation in the Virginia legislature's House of Delegates that would ban gays from serving in the Virginia National Guard.  WTOP News reported yesterday that the move comes in response to Congress' recent passage of a repeal of Don't Ask, Don't Tell. Critics say that the National Guard is a federal military unit and that federal law would override any state limitation.  However Del. Marshall argues that states would never have ratified the U.S. Constitution if they did not retain unqualified control of their militias.

Turkey Will Include Alevis In New Textbooks

In Turkey, Faruk Celik, Minister of Work and Social Security, announced that new textbooks which incorporate information about the 6 to 12 million Alevis in the country will be available for the 2011-12 school year.  According to Today's Zaman, the new textbooks grow out of a government initiative directed at dealing with complaints by Alevis that their children in public schools are required to attend religious classes that focus on Sunni Islam. However Federation of Alevi-Bektaşi Associations Chairman Ali Balkız said his organization could not support compulsory religion classes, even if they include information about Alevism and Alevi figures.

Pope Sees Clergy Sex Abuse As Product of Moral Relativism

Pope Benedict XVI yesterday delivered an address (full text) during his traditional pre-Christmas meeting with the cardinals, archbishops, bishops, and members of the Roman Curia and of the Governorate of Vatican City State.  A significant portion of his remarks were an analysis of the clergy sex abuse scandal. He said in part:

In the vision of Saint Hildegard, the face of the Church is stained with dust.... We must accept this humiliation as an exhortation to truth and a call to renewal.... We must ask ourselves what we can do to repair as much as possible the injustice that has occurred. We must ask ourselves what was wrong in our proclamation, in our whole way of living the Christian life, to allow such a thing to happen....  

We are well aware of the particular gravity of this sin committed by priests and of our corresponding responsibility. But neither can we remain silent regarding the context of these times in which these events have come to light. There is a market in child pornography that seems in some way to be considered more and more normal by society. The psychological destruction of children, in which human persons are reduced to articles of merchandise, is a terrifying sign of the times. From Bishops of developing countries I hear again and again how sexual tourism threatens an entire generation and damages its freedom and its human dignity.... In this context, the problem of drugs also rears its head, and with increasing force extends its octopus tentacles around the entire world – an eloquent expression of the tyranny of mammon which perverts mankind.....

In order to resist these forces, we must turn our attention to their ideological foundations. In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained – even within the realm of Catholic theology – that there is no such thing as evil in itself or good in itself. There is only a "better than" and a "worse than"..... Everything depends on the circumstances and on the end in view.... Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today. Against them, Pope John Paul II, in his 1993 Encyclical Letter Veritatis Splendor, indicated with prophetic force in the great rational tradition of Christian ethos the essential and permanent foundations of moral action. Today, attention must be focussed anew on this text as a path in the formation of conscience.... 

Holidays At The White House Web Page

The White House Website currently features a page captioned Holidays at the White House. It carries videos of various holiday activities by the First Family, announces this year's White House holiday theme as "Simple Gifts," and furnishes holiday recipes and an online White House tour.

Court Says Father Can Talk With Children About His Belief In Plural Marriage

The Salt Lake Tribune reported Saturday that a Utah state trial court judge has changed the terms of a custody order to eliminate the restriction formerly placed on Joseph Compton that barred him from talking to his eight children about his belief in plural marriage and barred him from taking them to the 800-member community where Compton lives which is comprise mostly of members of the Apostolic United Brethren (the Allred Group). Kathleen Compton filed for divorce when Joseph refused to stop seeing a woman he wanted to become his second wife. (Joseph has not though entered into a polygamous relationship with the woman.) Kathleen is afraid that her children might join the Allred Group or marry someone from that community and become polygamists.  The judge wrote, however:

The court received no evidence that any of the petitioner’s children, adult or minor, have suffered real harm or will suffer substantiated potential harm as a result of his belief in the practice, even though the practice is criminal.... To restrict parent time based on illegal conduct may be appropriate, but the illegality [of polygamy] on its own is not sufficient to warrant restriction.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Russia’s "Orthodox" Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad, (December 14, 2010).
• Alan E. Brownstein, Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry, (University of San Francisco Law Review, No. 45, 2010).
• Leslie C. Griffin, Snyder v. Phelps: Searching for a Legal Standard, (Cardozo Law Review De Novo, p. 353, 2010).
• Leslie C. Griffin, Smith and Women's Equality, (Cardozo Law Review, Vol. 32, 2011).
• Benjamin L. Berger, Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010).
• Richael Faithful, Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections and Civil Rights Progress within the Employment Non-Discrimination Act, (The Legislation and Policy Brief, Forthcoming).
• Mohammad Fadel, Muslim Reformists, Female Citizenship and the Public Accommodation of Islam in Liberal Democracy, (Politics and Religion, Cambridge University Press, 2012).
• Jeff Redding, Beyond Exclusion: A Review of Peter J. Spiro’s 'Beyond Citizenship', (Minnesota Law Review Headnotes, Vol. 95, p. 29, 2010).
• Asifa Quraishi, On Fallibility and Finality: Why Thinking Like a Qadi Helps Me Understand American Constitutional Law, (Michigan State Law Review, Vol. 2009, No. 2, 2009).
• Jeremy Waldron, Torture, Suicide, and Determinatio, (The American Journal of Jurisprudence, Vol. 55, 2010).

From SmartCILP:

• Nicholas Parsons &  Marcus Mietzner, Sharia By-laws in Indonesia: A Legal and Political Analysis, [Abstract], 11 Australian Journal of Asian Law 190-217 (2009).
• Geoffrey R. Stone, The Second Great Awakening: A Christian Nation?, 26 Georgia State University Law Review 1305-1333 (2010).
• Kevin J. Worthen, The NCAA and Religion: Insights About Non-State Governance from Sunday Play and End Zone Celebrations, 2010 Utah Law Review 123-140.
• Symposium: A Celebration of the Twentieth Anniversary of Mulieris Dignitatem, Part II. Articles by Mary G. Leary, Ernest Caparros, Sr. Thomas Augustine Becker, Jane F. Adolphe, Robert L. Fastiggi, Fr. John J. Coughlin, Katherine Shaw Spaht, Mary Shivanandan, Lisa Lickona, Joseph Isanga and Howard Bromberg. 8 Ave Maria Law Review 247-442 (2010).

Ontario High Court Upholds "Motive" Clause In Canada's Anti-Terrorism Law

In Regina v. Khawaja, (Ct App. ON, Dec. 17, 2010), the Court of Appeal for Ontario reversed the holding of a trial court below and upheld the constitutionality of the "motive clause" in the definition of "terrorist activity" in Canada's anti-terrorism law. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." The trial court had found that because this provision will focus prosecutorial scrutiny on political, religious and ideological beliefs, its chilling effect renders it unconstitutional under Canada's Charter of Rights and Freedoms. (See prior posting.) The appeals court, however, reasoned:

There are many potential explanations for why people might feel a chilling effect when it comes to expressing extremist Islamic views. Perhaps, most obviously, there is the reality of the world we live in. Terrorism and the fear and uncertainty terrorism creates are facts of life. Fear can generate many things, including suspicion based on ignorance and stereotyping. Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fueled by a potent mix of religious and political fanaticism. It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists. Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist.

In making these observations, we do not intend to condone profiling or stereotyping. We do, however, mean to say that the most obvious cause of any “chilling effect” among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be “chilled” by its existence....

The Toronto Star reports that this is one of six decisions released by Ontario's highest court on Friday which increased the prison sentences of three individuals and ordered two others extradited to the United States. The other 5 cases are R. v. Amara, R. v. Banwait, R. v. Gaya, R. v. Houssari,and R. v. Khalid.

Sudan's President Promises Islamic Constitution, Defends Sharia Punishments

Reuters today reports that Sudan's president, Omar Hassan al-Bashir, at a rally today told supporters that if Southern Sudan votes to secede in January's referendum, the rest of Sudan will adopt an Islamic constitution.  An interim constitution adopted in 2005 limited shariah law to the north and recognized "the cultural and social diversity of the Sudanese people." Bashir says that the recognition of that diversity will disappear in his new constitution. Bashir also defended a YouTube video of police lashing a woman, saying: "If she is lashed according to sharia law there is no investigation. Why are some people ashamed? This is sharia."

Recent Prisoner Free Exercise Cases

In Tapp v. Proto, (3d Cir., Dec. 13, 2010), the 3rd Circuit held that a two-week delay in providing plaintiff kosher meals and plaintiff's complaint that the meals lacked variety and were often cold did not amount to a violation of plaintiff's free exercise rights.

In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 130879 (D CO, Nov. 30, 2010), a Colorado federal district court rejected a motion by convicted Oklahoma City bomber Terry Nichols to amend an earlier decision rejecting Nichols' free exercise and RFRA challenges to the diet he receives in prison. Nichols claimed that as a Christian, he must adhere to a high fiber diet of whole foods.

In Mauwee v. Palmer, 2010 U.S. Dist. LEXIS 131704 (D NV, Nov. 29, 2010), a Nevada federal district court dismissed a free exercise claim by a Native American spiritual leader who alleged that an eagle talon he possessed was confiscated by a prison officer.

In Wing v. Braye, 2010 U.S. Dist. LEXIS 131906 (SD IL, Dec. 14, 2010), and Illinois federal district court rejected as a de minimis burden on free exercise an officer's order to a Catholic inmate to either leave the prison chapel where no services were in progress or stay in a classroom where a Muslim class was under way.

In Howard v. Skolnik, 2010 U.S. Dist. LEXIS 132323 (D NV, Dec. 1, 2010), a Nevada federal magistrate judge concluded that plaintiff had not alleged sufficient irreparable harm to justify a preliminary injunction in his suit seeking reinstatement of Nation of Islam services in English at his former housing facility and an Order preventing his new housing facility from cancelling the Nation of Islam services.

In Lebaron v. Clarke, 2010 U.S. Dist. LEXIS 133156 (D MA, Dec. 3, 2010), a Massachusetts federal district court denied without prejudice ex parte injunctive relief requested by a Messianic Jewish prisoner who claimed that he was being retaliated against for requesting kosher meals, and that the kosher meals he receives are too small. He also claimed his request for religious materials and a place to study were denied.

In Riley v. Jones, 2010 U.S. Dist. LEXIS 132866 (D OK, Dec. 15, 2010), an Oklahoma federal district court adopted the recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 133064, Nov. 19, 2010) and dismissed plaintiff's free exercise and RLUIPA challenges to the prison's vegetarian diet and plaintiff's claim that his rights were violated when he was switched from a religious vegetarian diet to a health diet ordered by doctors.

County Commission Says Denial of Increased Occupancy To Chabad House Does Not Violate RLUIPA

The Ventura County,California Planning Commission ruled Thursday that the county's Board of Supervisors did not violate the Religious Land Use and Institutionalized Persons Act when it refused an application from Chabad of Oak Park to raise the occupancy limits for Jewish Sabbath and religious services at a converted house used by the group as a synagogue. According to the Ventura County Star, Chabad wants to raise the limits from 70 to 145, saying the building can safely hold that number. The Board of Supervisors says that Chabad agreed to the 70 person limit in 1994 when it negotiated for a permit for the house. Fire inspectors say the building can hold up to 168 people safely.  Chabad says its members, who do not drive on the Sabbath, cannot easily get to other religious services if they show up and find that 70 people are already attending. Even though the Planning Commission ruled 4-1 that the county had used the least restrictive means to carry out its compelling zoning interests, the Commission said it hoped that the Supervisors would decide to raise the occupancy limit over the current 70. Chabad says it is not interested in compromising on a number less than 145.

Temporary Injunction Bans Christian Prayers At Municipal Council Meetings

The ACLU of New Jersey announced Friday that a state trial court has issued a temporary injunction barring the borough of Point Pleasant Beach (NJ) from opening municipal council meetings with prayers that reflect the personal religious belief of the council member offering the invocation.  Under a previous policy, the council opened its meetings with the clerk reciting the Lord's Prayer and making the sign of the cross.  When the ACLU filed suit in September (see prior posting), council agreed to end that policy and the suit was dropped.  However council then adopted a policy that allowed council members to lead prayers, resulting in the continuance of only Christian prayers at meetings. The ACLU claims that the practice violates provisions in the New Jersey Constitution that require government not to show a preference for one religion over another.

Federal Reserve Board Backs Off Policy of Barring Religious Displays In Bank

The Federal Reserve Board's Regulation B (12 CFR Part 202) implementing the Equal Credit Opportunity Act prohibit banks from making statements in their advertising or otherwise that would discourage an applicant for credit from applying because of the applicant's race, religion,gender marital status or age. (12 CFR 202.4). A Staff Interpretation of that provision provides that: "The use of words, symbols, models or other forms of communication in advertising that express, imply, or suggest a discriminatory preference or a policy of exclusion in violation of the Act." Examiners inspecting a bank in Perkins, Oklahoma last week created a stir by insisting that the bank's display of religious messages is in violation of this policy.

According to KOCO News, display of a Bible verse of the day on a screen in the bank and on the bank's website, crosses on the teller’s counter and buttons that say "Merry Christmas, God With Us," were seen by examiners as violating Regulation B. According to another report by KOCO News, U.S. Sen. Jim Inhofe and U.S. Rep. Frank Lucas sent a letter to the Federal Reserve Board calling the action an "all-out assault on the faith, values and rights of the bank, its employees and the people it serves". This led the Fed changed its mind. The president of Payne County Bank, Lynn Kinder, said that both sides have agreed to work out the issue and in the meantime the Fed has allowed the bank to restore its display of Christian items and verses. [Thanks to ReligionLaw listserv for the lead.]

Senate Passes DADT Repeal for Obama's Signature; Opponents Vow To Fight On

AP reports that the U.S. Senate today voted 65-31 to approve and send to the President for his signature the Don't Ask, Don't Tell Repeal Act of 2010. An identical bill was passed by the House earlier this week. (See prior posting.) The bill provides for ending of DADT 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. The President has promised to sign the bill into law. Earlier today he issued a statement reading in part:

It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed. It is time to allow gay and lesbian Americans to serve their country openly. I urge the Senate to send this bill to my desk so that I can sign it into law.

In response to the Senate's action,  the Freedom Federation, a coalition of conservative religious and public policy groups issued a statement promising to fight for a reversal of Congress' action, saying:

Our armed forces should take heart, because the American people will not turn its back on you. This vote happened because opportunistic Senators – only days before Christmas – put political interest groups above supporting our men and women in uniform.

This action will be overturned in the next Congress because it breaks the bond of trust that must exist between the military and those who command in the Pentagon and Congress. Today’s vote will prove as costly to its proponents as ObamaCare was to its advocates. We promise a full mobilization of faith-based and policy organizations, veterans, and military families in the states of every Senator who voted for repeal of DADT against the advice of our service chiefs and during a time of war. Those Senators – and the Pentagon leaders responsible for this breach of trust – should understand that they will be the object of concerted political action against them.

Indiana County Will Not Remove Creche

Today's Richmond, Indiana Palladium-Item reports that Franklin County, Indiana Commissioners say that unless ordered to do so by a court, they will not remove a nativity scene owned by the town of Brookville and placed on the court house lawn around the flag pole each year by fire fighters.  The Freedom from Religion Foundation had complained about the display which is not part of a larger holiday display with secular symbols. (FFRF News Release with photo and letter.) A pair of reindeer is also on the court house lawn, but not near the nativity scene. County Commissioner Tom Wilson says that a donated Christmas tree was added to try to make the display more secular. 500 people rallied Saturday in support of the nativity scene. Wilson commented: "If we let them do this, let them take Christmas away, what's next?... If you ruffle the feathers of the people of Franklin County, you better be ready to fight because they know how to counterpunch."

Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials

Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.

European Court Finds Problem With Ireland's Abortion Law Implementation

Yesterday in Case of A, B and C v. Ireland, (ECHR, Dec. 16, 2010), the Grand Chamber of the European Court of Human Rights dealt with challenges by three Irish women to Ireland's ban on abortions. The country's Constitution bans abortion. It however allows women to travel abroad for an abortion and allows abortions in Ireland where the mother's life (but not merely her health) is threatened. The Court found that the failure of the Irish parliament to implement the provisions on protection of a mother's life violates the European Convention on Human Rights. As summarized in the court's Press Release on the case:

Having regard to the first and second applicants’ right to travel abroad to obtain an abortion and to appropriate pre- and post-abortion medical care in Ireland, as well as to the fact that the impugned prohibition in Ireland on abortion for health or well-being reasons was based on the profound moral values of the Irish people in respect of the right to life of the unborn, the Court concluded that, the existing prohibition on abortion in Ireland struck a fair balance between the right of the first and second applicants to respect of their private lives and the rights invoked on behalf of the unborn.

However the Court found a violation of Article 8 of the European Convention on Human Rights as to the third woman. Again from the Court's Press Release:

[T]he third applicant had a rare form of cancer and she feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to her life clearly concerned fundamental values and essential aspects of her right to respect for her private life.

It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective. The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment if an initial doctor’s opinion that abortion was an option as it posed a risk to the woman’s health was later found to be against the Irish Constitution.

Neither did the Court consider recourse by the third applicant to the courts (in particular, the constitutional courts) to be effective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion.... Consequently, the Court concluded that Ireland had breached the third applicant’s right to respect for her private life given the failure to implement the existing Constitutional right to a lawful abortion in Ireland. Accordingly, there had been a violation of Article 8.

Six dissenting judges would have found that the rights of all three women were infringed.  The Guardian reports on the decision.

White House Enlists Clergy To Back DREAM Act

Religion Dispatches reports that the White House yesterday hosted a call for reporters with four members of the clergy who are supporting passage of the DREAM Act.  The Act offers citizenship to young people brought to the U.S. illegally as children who pursue higher education or join the military. Speaking in favor of the bill, Noel Castellanos of the Christian Community Development Association; Rabbi Jack Moline of Agudas Achim Congregation in Alexandria, VA; Pastor Joel Hunter of Northland, A Church Distributed in Longwood, Florida; and Pastor Rich Nathan of Vineyard Columbus in Columbus, Ohio all focused on the religious imperative to welcome the stranger. A version of the DREAM Act passed the House earlier this month (Skokie Patch), but Senate action is now required.

New Swiss Policy Will Bar U.S. Missionaries

The Rexburg, Idaho Standard Journal yesterday reports that Switzerland will effectively bar all missionaries from non-European countries from serving in Switzerland beginning in 2012.  In 2002, a bilateral accord between Switzerland and the European Union provided that European nationals can enter Switzerland to work, but work permits for people from other countries were severely restricted. Then recently a Swiss court held that missionary work is "gainful employment" and so is subject to the quotas on work permits.  The restrictions pose a particular problem for the Mormon Church which has a long history of sending missionaries to Switzerland.  In August, 14 US Senators wrote the Swiss government urging that LDS missionaries be allowed to continue coming into the country, pointing out that these missionaries are not paid while on missions.  So theydo not compete with other workers nor do they receive social benefits from the Swiss government.

DC Circuit Upholds FTC Jurisdiction Over Purported Religious Organization

In Daniel Chapter One v. FTC, 2010 U.S. App. LEXIS 25496 (DC Cir., Dec. 10 2010), the D.C. Circuit Court of Appeals held that an organization's formal legal status as a religious corporation sole does not prevent the Federal Trade Commission from regulating its advertisements for dietary supplements.  The organization in fact operated as a for-profit entity generating economic benefits for its founder and his wife. The court also rejected petitioner's argument that the FTC violated the Establishment Clause by using "scientism" as the basis for its requirements.

DADT Repeal Passes House, Goes To Senate

Yesterday, by a vote of 250- 175, with 9 members not voting, the U.S. House of Representatives passed, and sent to the Senate, HR2965 [corrected]-- the Don't Ask Don't Tell Repeal Act of 2010.  The bill provides for ending of DADT 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. According to the Washington Post, the Senate, where passage seems likely, will not vote on the bill until next week at the earliest.

Indonesian Court Sentences American For Pulling Plug On Mosque Loud Speakers

AFP yesterday reported that a court in Indonesia has sentenced Gregory Luke, a 64-year old American who runs a guest house for tourists on Lombok Island, to five months in jail for blasphemy, carrying out an act of violence and hampering people in Kute village from performing their religious activities. The court found that in August during Ramadan, Luke pulled the plug on loud speakers used by the local mosque to broadcast the call to prayer. Luke has denied doing so, saying he went to the mosque to ask them to lower the volume when a group of local youths attacked him and ransacked his home with the police looking on. Luke says he is "satisfied" with the judge's ruling. Prosecutors had sought a 7-month sentence.

Federal Court Issues TRO To Prevent Sale and Subdivision of FLDS Property

According to KCSG TV, a Utah federal district court on Tuesday issued a temporary restraining order prohibiting a state-court appointed trustee from selling certain land belonging the the FLDS United Effort Plan Trust. Refusing to grant the broad injunction against all trust management activity requested by FLDS (see prior posting), Judge Dee Benson instead barred sale of Berry Knoll Farm, a site that FLDS members have set aside for a future temple, and barred subdividing land in Hildale, Utah and Colorado City, Arizona. He also barred any other action that might cause irreparable harm to the trust or FLDS members while the court decides on the constitutional challenge to the action of Utah in seizing control of the UEP Trust and moving to reform the trust which holds land of members of the polygamous FLDS sect.

Judge Accepts Claim That Festivus Requires Kosher Meals Until Hoax Is Discovered

The New York Post yesterday carried a report on a fabricated free exercise claim in Orange County, California's jail several months ago.  The story has been making the rounds online for several days, but the Post's coverage is the first that seems to create an coherent chronology.  In April, Malcolm Alarmo King was sentenced on drug charges.  King wanted to obtain kosher meals, rather than the salami that was often served in jail, because he thought kosher meals were healthier and would allow him to maintain his physique. When King's lawyer asked the sentencing judge to order kosher meals-- which cost the jail more than other meals-- the judge said he could order them only if he had a religion to put down in the order. So King's attorney, Fred Thiagarajah, responded "Festivus," the artificial holiday popularized on the Seinfeld show. Dutifully, the judge issued an order that "the defendant is to receive a high protein no salami diet three times per day for 'Festivism'."  Apparently the Orange County Sheriff's Office did not realize what had happened until they looked up Festivus on Wikipedia. They then asked King what his religion was, and he responded "Healthism." It then took county lawyers several months to get the order overturned.  King was released in October, but he is now in federal custody pending a deportation hearing. He is suspected of being in the country illegally from Liberia. (Orange County Register).

Bishop Threatens To Withdraw Catholic Designation From Hospital Over Abortion Controversy

USA Today reports that Bishop Thomas J. Olmsted, Catholic Bishop of Phoenix, Arizona, is threatening to remove the Catholic affiliation of Phoenix's St. Joseph's Hospital and Medical Center this Friday in a dispute over the hospital's actions to save the life of a pregnant woman earlier this year.  The hospital's ethics committee, including Sister Margaret McBride, approved terminating the pregnancy of a young woman who was near death from pulmonary hypertension, a condition made worse by hormones produced by the uterus during pregnancy. The Bishop subsequently denounced the procedure as an impermissible abortion.  In a Nov. 22 letter to the president of Catholic Healthcare West, St. Joseph's parent company, Olmsted demanded that Catholic Healthcare West acknowledge the hospital was wrong in its interpretation of the church's view on indirect abortions; that it submit to a diocesan review and certification; and that it agree to give its medical staff ongoing training on the U.S. Conference of of Catholic Bishop's Ethical and Religious Directives. The Diocese of Phoenix yesterday posted a release on its website indicating that the Bishop's letter was considered private and confidential, and indicating that it was continuing to work with the hospital and Catholic Healthcare West "to find the best way to provide authentic Catholic health care in accordance with the Church's teaching." Meanwhile a statement by St. Joseph's on its website stated they "continue to be in dialogue with Bishop Olmsted and we hope to achieve a resolution. We believe that all life is sacred. In this case we saved the only life we could save, which was the mother's."

Jail Booking Photo Without Hijab Approved Reluctantly

In a Boulder County, Colorado court, a judge has denied a request by a Muslim University of Colorado student to have her jail booking photo taken wearing a headscarf. The Boulder (CO) Daily Camera reported yesterday that Maria Hardman was sentenced to two days on a work crew for driving her scooter while under the influence of alcohol. When she reported to jail, authorities insisted she remove her hijab for her booking photo. She refused and her attorney filed in court for relief. The judge concluded that the jail's offer to allow her to have her photo taken in a private room accompanied only by a female staff member was a sufficient accommodation of her religious beliefs.  At the same time, the judge urged the sheriff's office to "reexamine whether their legitimate interests in recording useful identifying information and images of this defendant for this work crew sentence would truly he compromised by allowing her to take the booking photo with her scarf above her hairline and not obscuring her face."

Russian Regional Law Turns Confiscated Catholic and Lutheran Properties Over To Orthodox Church

Forum 18 reported yesterday on two laws enacted by the Duma in Russia's Kaliningrad Region at the end of October.  They provided for turning over to the Russian Orthodox Church various properties that had been confiscated years ago by Soviet authorities from the Lutheran and Catholic Churches. On Nov. 23, the head of the State Property Agency formally transferred two properties, and the Russian Orthodox Church promptly signed leases with the organizations now occupying the buildings allowing them to continue to do so. Holy Family Catholic Church currently houses the regional orchestra, while Queen Luise Lutheran Memorial Church is used by the puppet theater.  The controversial laws reflect the view of the Russian Orthodox Church that transfers of confiscated religious property should reflect the composition of the population of the area today and not be based on who built the places of worship. The Kaliningrad Region, formerly German East Prussia, was annexed by the Soviet Union during World War II and most of its ethnic German population was driven out.

Suit Charges Watch Wholesaler With Religious Discrimination Against Employee

The New York Daily News yesterday reported on the filing of a religious discrimination lawsuit in state court by the former vice-president for sales of Concepts in Time, a wholesale clock and picture frame store in Manhattan. The suit seems to be connected to a broader dispute between former employee Jamie Errico, a Catholic, and the wholesale company, owned by Saul Jemal, an Orthodox Jew. In April Jemal accused Errico of taking the company's confidential and proprietary information before leaving and going to work for a competitor.  Errico complains that Jemal would not let her wear a crucifix to work, even though Jewish employees wore stars of David. It also claims that while Jewish employees were allowed to take off early on the evenings of holidays, Errico's pay was docked when she did not show up on Christmas eve. Errico also complains that she was not allowed to make or sell watches with any kind of non-Jewish symbols, and says she was fired two weeks before Christmas of 2009. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Muslim Woman Sues Over Ban on Wearing Hijab In Court House

The ACLU of Georgia announced yesterday that it has filed a federal civil rights lawsuit against the city of Douglasville, Georgia and various city officials on behalf of a Muslim woman who who was told she could not enter a municipal courtroom where her nephew faced a traffic hearing unless she removed her hijab (religious headscarf). Plaintiff Lisa Valentine got into an argument with officers staffing the metal detector. They handcuffed Valentine and took her before the judge who sentenced her to ten days for contempt for creating a disturbance in the hallway and at the metal detector. She was not allowed to wear her hijab in the court holding cell or while being transported to jail. However after police reviewed the case, she was released that same evening and the judge rescinded the contempt order. The complaint (full text) in Valentine v. City of Douglasville, (ND GA, filed 12/14/2010) alleges that defendants violated RLUIPA as well as Valentine's 1st Amendment free exercise rights. It also alleges that her arrest without probable cause violated the 4th Amendment. The lawsuit seeks an injunction and damages. After the incident involving Valentine, the Municipal Court issued a local rule providing procedures for special arrangements when a head covering is needed for religious or medical reasons.

Report Focuses on Discrimination Against Christians In Europe

Last week, coinciding with an OSCE meeting in Vienna on Freedom of Religion, the Observatory on Intolerance and Discrimination Against Christians in Europe released a 39-page report (full text) covering a five year period and focusing on "instances in which Christians and Christianity are marginalized or discriminated against throughout Europe." Here is an excerpt from the Introduction to the report:

[E]ven if there are disputes amongst Christians, what we face all together are radical secularism and political correctness gone overboard, both of which limit fundamental freedoms.

Another common objection states, that what Christians encounter today is not intolerance or discrimination, but a process of losing historical privileges. Historical privileges, far from discriminating against other religious communities, are not necessarily bad, considering that they are, after all, historical and that no community exists void of a past with its own historically evolved identity and traditions. Full neutrality is impossible since even an empty white wall is a statement, especially if it is a consequence of the removal of the crucifix. One religious community holding privileges for historical reasons does not mean that others are being discriminated against – as long as their enshrined rights are protected.

To some extent the withdrawal of privileges from Christianity constitutes an unnatural break with history and identity and is an expression of hostility. This hostility does not stop at the removal of privileges. It causes marginalization and social exclusion, and it leads to the denial of rights of Christians. Equal rights for Christians are at stake.

The report concluded with a series of recommendations to European governments, the EU and international organizations. CNA yesterday summarized the report and reactions to it.

Battle Over Atheist Ads On Ft. Worth Buses

The New York Times reported yesterday on the battle over advertising signs on public buses in Ft. Worth, Texas. After an atheist group bought space on the outside of four city buses for signs reading "Millions of People are Good Without God," some businessmen arranged for a van that began following the buses around carrying signs that read "2.1 Billion People Are Good with God," and below it, "I Still Love You-- God." Black religious leaders in Ft. Worth have called for a boycott of buses, saying that the ads are a direct attack during the Christmas season. Others are urging the Ft. Worth Transportation Authority to ban all religious advertising on buses. Terry McDonald, chairman of the group Metroplex Atheists,says the bus ad was not intended to insult Christians, but was aimed at consoling atheists, adding: "It can be pretty lonely for a nonbeliever at Christmastime around here."

Dismissal Recommended In Challenge To Illinois Funding of Bald Knob Cross Renovation

In Sherman v. State of Illinois, 2010 U.S. Dist. LEXIS 131080 (CD IL, Dec. 10, 2010), an Illinois federal magistrate judge concluded that activist Robert Sherman lacks standing to bring an Establishment Clause challenge to a $20,000 renovation grant for Bald Knob Cross. The Illinois Department of Commerce and Economic Opportunity made the grant to Friends of the Cross to promote tourism to the Ozarks attraction. (See prior posting.) The court held that the Flast test for taxpayer standing was not met because the grant was made by the executive branch. It was not a specific legislative appropriation. The court, relying on Seventh Circuit precedent, also concluded that plaintiff's challenge became moot once the grant money was disbursed by the state to a private entity. The magistrate judge recommended the case be dismissed.

Polls Show Most Favor Religious Symbols on Public Property, Holidays in Schools

A Rasmussen poll released yesterday shows that 74% of adults surveyed believe that religious symbols such as nativity scenes, menorahs and Muslim crescents should be permitted on public property.  17% disagree.  80% of those surveyed favored celebrating religious holidays in public schools, while 14% do not.  The 80% figure is comprised of 43% who favor celebrating all religious holidays, and 37% who favor only celebrating some of them in the schools. A separate survey released a week ago by Rasmussen showed that 92% of Americans celebrate Christmas. Of those, 65% consider it a religious holiday while 28% say they celebrate it as a secular holiday.

Cert. Filed In Case On University Funding of Student Religious Groups

According to University of Wisconsin-Madison News yesterday, on November 30 the University of Wisconsin System Board of Regents filed a petition for certiorari seeking U.S. Supreme Court review in Badger Catholic, Inc. v. Walsh.  In the case, the 7th Circuit, in a 2-1 decision, invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing or religious instruction by recognized student groups. (See prior posting.)

DOJ Sues School District Over Its Refusal To Grant Unpaid Leave for Teacher's Hajj

The Justice Department announced yesterday that it has filed a Title VII religious discrimination lawsuit against the Berkeley, Illinois School District on behalf of a Muslim middle school teacher who was denied an unpaid leave that she requested so she could perform the Hajj. The school district denied the leave because it was not related to her professional duties nor was it for one of the reasons specified in the District's agreement with the teachers' union.  The lawsuit claims that the school district failed to reasonably accommodate the religious practices of teacher Safoorah Khan, causing her to lose her job when she chose to observe her religious obligations.  The suit seeks back pay, compensatory damages, reinstatement and a change in school district policies. According to the Justice Department's press release: "This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division."

Iraqi Christians Fleeing To North or Abroad

Today's New York Times reports that in Iraq a new wave of Christians are fleeing Baghdad and Mosul for protection in the Kurdish-controlled north, or abroad. The latest out-migration follows an October 31 attack on a Baghdad church that killed 51 worshipers and 2 priests, followed by bombings and assassinations targeting Christians. More than half of Iraq's Christian community has fled the country since 2003.

Controversy Continues Over National Portrait Gallery's Removal of Offending Video

Controversy continues (New York Times Op Ed 12/11) over the action two weeks ago by the National Portrait Gallery which removed a four minute video by the late artist David Wojnarowicz from an exhibit on sexual difference in American portraiture. The Dec. 1 Washington Post reported that the video titled A Fire in My Belly was removed from the Hide/Seek: Difference and Desire in American Portraiture exhibit after strong protests from Catholic League president William Donahue and the office of incoming House Speaker John Boehner over a portrayal in it of a small crucifix covered with ants.  Donahue called it "hate speech." Last Thursday, the Washington Post reported that James T. Bartlett, a member of the Museum's advisory panel, resigned over the decision to remove the video. A Q and A Release on the controversy posted on the Smithsonian's website last week says the action was taken "help focus attention on the central theme of the exhibition, which is portraiture and the representation of gay and lesbian identities in American art." Now Museum officials have been meeting with concerned staff.  According to the Washington Post: "Because the objections on Capitol Hill came initially from two powerful Republicans, John Boehner (R-Ohio) and Eric Cantor (R-Va.), and the Congress controls 70 percent of the Smithsonian's budget, employees said they feared to go public with their viewpoints."

Amish Victims of Investment Fraud Want To Administer Remaining Assets Instead of Bankruptcy Court

Yesterday's Columbus (OH) Dispatch reports that a member of central Ohio's Amish community, Monroe Beachy, has lost over half of the $33 million that 2,700 members of the Amish and Mennonite Church have given him to invest over the last 25 years, apparently in a fraudulent investment scheme.  Beachy has now filed for bankruptcy, but members of the Amish community have asked the court to dismiss the case and allow them to handle the matter internally within the Amish community-- including distribution of the $16.4 million in assets that the U.S. Trustee has recovered. They say that use of civil courts is forbidden by the Bible, and want to distribute the funds  based on "Christian principles of love and care for the poor and needy.”  Hundreds of investors have written the bankruptcy judge saying: "My participation as a creditor is abhorrent to deeply held spiritual principles on which my family and I have built our lives."  The U.S. Trustee opposes turning the case over to the Amish and says that religious beliefs are not a basis for dismissing the case.

Religious Talk Show Host's Comments on Gays Violated Canadian Broadcasting Standards

Last week the Canadian Broadcast Standards Council released the decision of its Ontario regional panel handed down in June relating to  the religious talk show Word TV (broadcast on CITS-TV, the Crossroads Television System in Ontario). (Full text of decision.)  While the panel cleared Word TV host Charles McVety of ethics charges relating to comments on several issues, it found that his comments about homosexuality violated the Canadian Association of Broadcasters Code of Ethics and its Equitable Portrayal Code. In particular the panel focused on four areas: he falsely claimed that the Ontario and Alberta Human Rights Commissions had a 100% conviction rate; he asserted that it is a crime to speak against homosexuality; he mischaracterized Ontario's revised school curriculum as one designed to teach homosexuality; and he mischaracterized gay pride parades as promoting sexual perversion and their advertising as promoting sex with children. The National Post reported Friday that in response to the decision, CTS has temporarily taken Word TV off the air. The CBSC decision requires CITS-TV to air a specified notice describing the decision once during prime time and once during the time slot in which Word TV was broadcast. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Omar Salah, Structuring Sukuk Al-Ijarah in the Netherlands, (TISCO Working Paper Series on Banking, Finance, and Services 08/2010, Nov. 26, 2010).
• Stephen Copp, A Theology of Incorporation with Limited Liability, (October 20, 2010).
• Christian J. De Ocejo, War Against God: How Iran Violates Islamic Law and What Human Rights Organizations Should Do About It, (December 3, 2010).
• Hassan Ahmad, Investigating Secondary Source Usage by Hanafi Jurists to Enhance Contemporary Relations in Muslim Minority Societies, (April 12, 2010).
• Pamela S. Karlan, Marriage, Method, and the Supreme Court, (Supreme Court Review, Forthcoming).
• Todd E. Pettys, Sodom's Shadow: The Uncertain Line Between Public and Private Morality, (Hastings Law Journal, Vol. 61, p. 1161, 2010).
• Jeremy Waldron, Secularism and the Limits of Community, (December 9, 2010).
• Todd E. Pettys, Letter from Iowa: Same-Sex Marriage and the Ouster of Three Justices, (Kansas Law Review, Forthcoming).

From SmartCILP:

• Paul E. McGreal, The Making of the Supreme Court's Free Exercise Clause Jurisprudence: Lessons from the Blackmun and Powell Papers in Bowen v. Roy, 34 Southern Illinois University Law Journal 469-532 (2010).
• Religious Legal Theory: The State of the Field. Articles by Robert K. Vischer, Mark L. Movsesian, John F. Coverdale, Michael V. Hernandez, Samuel J. Levine, Amelia J. Uelmen and David S. Caudill. 40 Seton Hall Law Review 845-990 (2010).