Court In India Hears Challenge To Hindu Ceremony Starting Courthouse Construction

In India yesterday, a two-judge panel of the Gujarat High Court heard arguments in a case challenging the constitutionality of a Hindu ceremony in which the Gujarat governor, the chief justice of the High Court and other judges had all taken part last year.  Articles last week in DNA and today in The Hindu explain the controversy.  The Gujarat government had acquired land on which to build advanced infrastructure for the court.  Before construction began, the traditional Hindu foundation-laying ceremony, known as bhoomi pujan, was held, apparently also as part of the court's Golden Jubilee celebration. In the arguments yesterday, petitioner's counsel asserted that since India is a secular state, no part of the government can sponsor a religious ceremony.

UDATE: According to an April 14 article in the Milli Gazette, the court dismissed plaintiff's challenge to the ceremony and "also fined the petitioner Rs 20000, doubting his bona fides."

Court Holds Exhaustion Not Required In RLUIPA Zoning Cases

In United States v. City of Walnut, California, (CD CA, Jan. 13, 2011), a California federal district court held that RLUIPA does not require plaintiffs in land use cases to exhaust administrative remedies before filing suit to challenge a zoning decision. The case involves a suit by the United States challenging the City of Walnut's refusal to grant a conditional zoning permit to a Zen Buddhist Center. The city's Planning Commission denied the permit and the city advised the Zen Center that an appeal would be pointless because of an upcoming municipal election. Nevertheless the Center sent the city a letter explaining its objections to the Planning Commission decision. While broadly rejecting an exhaustion requirement, the court went on to observe that even if private plaintiffs were required to exhaust their administrative remedies, the United States would not be bound by the Zen Center's failure to exhaust. Yesterday's San Gabriel Valley Tribune reports on the decision.

California High Court Denies Review In Release of Clergy Abuse Files

According to the Washington Post, yesterday the California Supreme Court denied review in Doe 1 v. Franciscan Friars of California, Inc. In the case, a California appellate court held that pursuant to a settlement in a clergy sex abuse case, various confidential files of nine alleged perpetrators, six of whom are still alive, can be released to the public. (See prior posting.) An attorney representing the clergy said that release of the files will have a chilling effect in the future on clergy being willing to be honest with therapists about child molestation incidents.

Britain's Home Office Bans Visit By Controversial Florida Pastor

Britain's Home Office has barred controversial Florida pastor Terry Jones from entering the United Kingdom.  BBC News reports that the pastor, who provoked international protests last year when his Dove World Outreach Center scheduled a "Burn a Koran Day" (see prior posting), had been invited to Britain by the group England Is Ours. He was scheduled to speak at a series of demonstrations against the expansion of Islam in the UK. A Home Office representative said: "Coming to the UK is a privilege not a right and we are not willing to allow entry to those whose presence is not conducive to the public good." [Thanks to Scott Mange for the lead.]

Islamic Scholars In Mauritania Ban Female Genital Mutilation

Magharebia reports that last week in the north African country of Mauritania, 34 Islamic religious scholars and national figures signed a fatwa banning female genital mutilation.  The document was issued at a seminar organized by the Forum of Islamic Thought, and attended by government and religious leaders. Dr. Sheikh Ould Zein Ould Imam, the Forum's secretary general and professor of jurisprudence at the University of Nouakchott, said: "There's no doubt that the fatwa will substantially curb [FGM], since it removes the religious mask such practices were hiding behind. We do need, however, a media campaign to highlight the fatwa, explain it and expound upon its religious and social significance." Magharebia had previously reported that the incidence of female circumcision in Mauritania had reached 72%.

Human Rights In China Is Part of Obama's Discussions With President Hu

Chinese President Hu Jintao is on a state visit to the United States.  At a joint press conference at the White House (full text), President Obama summarized his meeting with Hu, indicating that among the topics discussed was human rights, including religious freedom.  Obama said in part:

I reaffirmed America’s fundamental commitment to the universal rights of all people. That includes basic human rights like freedom of speech, of the press, of assembly, of association and demonstration, and of religion -- rights that are recognized in the Chinese constitution. As I've said before, the United States speaks up for these freedoms and the dignity of every human being, not only because it’s part of who we are as Americans, but we do so because we believe that by upholding these universal rights, all nations, including China, will ultimately be more prosperous and successful.

So, today, we’ve agreed to move ahead with our formal dialogue on human rights. We've agreed to new exchanges to advance the rule of law. And even as we, the United States, recognize that Tibet is part of the People’s Republic of China, the United States continues to support further dialogue between the government of China and the representatives of the Dalai Lama to resolve concerns and differences, including the preservation of the religious and cultural identity of the Tibetan people.

In the Q and A, reporters pressed President Hu on the issue of human rights, and Hu responded in part as follows:

China is always committed to the protection and promotion of human rights. And in the course of human rights, China has also made enormous progress, recognized widely in the world.

China recognizes and also respects the universality of human rights. And at the same time, we do believe that we also need to take into account the different and national circumstances when it comes to the universal value of human rights.

China is a developing country with a huge population, and also a developing country in a crucial stage of reform. In this context, China still faces many challenges in economic and social development. And a lot still needs to be done in China, in terms of human rights....

... [T]hough there are disagreements between China and the United States on the issue of human rights, China is willing to engage in dialogue and exchanges with the United States on the basis of mutual respect and the principle of non-interference in each other’s internal affairs....

Last week, the U.S. Commission on International Religious Freedom had written Obama urging him to publicly raise religious freedom issues with Hu.

1997 Vatican Letter Questions Irish Church's Policy of Mandatory Reporting of Sex Abuse To Civil Authorities

The New York Times today reports on a 1997 letter (full text) from the Vatican's Apostolic Nuncio in Ireland to Irish clergy questioning  a document issued by the Irish Catholic Bishops' Advisory Committee on handling of clergy sex abuse claims.  The document titled "Child Sexual Abuse: A Framework for a Church Response" called, among other things, for mandatory reporting of priests suspected of abuse of minors to police or civil authorities.  The Vatican's letter included the following statement:

In particular, the situation of 'mandatory reporting' gives rise to serious reservations of both a moral and a canonical nature.

The letter also cautioned that Canon Law procedures need to be followed strictly in taking action against accused priests. Otherwise hierarchical appeals might overturn the action. Apparently one concern was that the Irish procedures were issued in a "study document" rather than in some kind of more definitive manner.  Abuse victims in Ireland and the United States say the 1997 letter could be important evidence in lawsuits attempting to hold the Vatican liable for abuse committed by local priests. A Vatican spokesman said that Vatican policy changed in 2001 when the Congregation for the Doctrine of the Faith, headed then by the future Pope Benedict XVI, took over handling of sexual abuse concerns.

Quebec Refuses To Accommodate Kirpans At Hearing On Religious Accommodation

In Canada yesterday morning, a committee of Quebec's National Assembly held hearings on Bill 94, a proposed law to provide for reasonable accommodation of the religious and cultural practices of minorities.  However, as reported by CBC News, four members of the World Sikh Organization who were scheduled to testify were denied entry to the National Assembly building because they refused to remove their kirpans-- small religious ceremonial daggers worn against the skin under clothing.One member of the group, Balpreet Singh, called the refusal to accommodate Sikh practice "a bit ironic" under the circumstances. Security officials at the National Assembly consider the kirpan a weapon even though Canada's federal Parliament in Ottawa, as well as the federal Supreme Court, permit kirpans to be worn in their buildings.

New Alabama Governor's Christian Remarks Draw Criticism

Yesterday's Huntsville (AL) Times reports on the negative reaction to a statement made by Alabama's new governor, Robert Bentley, at a Martin Luther King Jr. Day commemoration on Monday. TPM covered the Governor's remarks delivered at Montgomery, Alabama's Dexter Avenue Baptist Church. Bentley said: "So anybody here today who has not accepted Jesus Christ as their savior, I'm telling you, 'You're not my brother and you're not my sister, and I want to be your brother.'" The Anti-Defamation League issue a particularly strong statement, saying in part:

It is shocking that Governor Bentley would suggest that non-Christians are not worthy of the same love and respect he professes to have for the Christian community.... Governor Bentley's remarks suggest that he is determined to use his new position to proselytize for Christian conversion.... If he does so, he is dancing dangerously close to a violation of the First Amendment of the U.S. Constitution....

Gov. Bentley's office issued a statement reading in part: "Gov. Bentley clearly explained in his inaugural address his belief that he is the governor of all of Alabama." [Thanks to Scott Mange for the lead.]


UPDATE: According to CNN, on Wednesday (1/19) Gov. Bentley apologized for his remarks both in a meeting with a Birmingham, Alabama rabbi and at a press conference following the meeting. Rabbi Jonathan Miller of Birmingham's Temple Emanu-El says the apology has put his concerns to rest.

Why The Disproportionate Religious Make-Up of Congress?

In a follow-up to a Pew Forum report earlier this month on the religious composition of members of the 112th Congress (see prior posting), yesterday's Dallas Morning News published an interesting set of responses from nine members of the clergy on why some faith groups have a greater presence in Congress than in the overall U.S. population.  In particular, Methodists, Episcopalians, Presbyterians, Jews and Catholics all have greater percentages in Congress than in the population as a whole. Explanations ranged from differences in theologies and traditions, to differences in education and affluence among different religious groups, to observing that some members of Congress adopt a religious affiliation label for convenience with very nominal adherence to the faith.

U.S. State Department Official Will Discuss Blasphemy Law During Visit To Pakistan

Dawn yesterday reported that U.S. Assistant Secretary of State for Democracy and Human Rights Michael H. Posner is visiting Pakistan this week.  One topic he plans to raise with the government, opposition leaders and civil society groups is U.S. concern over discriminatory or abusive use of Pakistan's blasphemy law. In an interview with the paper, Posner said: "We are reluctant to prescribe changes and alternatives. But we do believe that people should be free to practice their religion." Posner said he does not want to specifically focus on the controversial case of Aasia Bibi, a Christian woman who has been sentenced to death for blasphemy. But, he said: "We believe in the due process of law, i.e. a person is presumed innocent until proven guilty."

Settlement In Religious Discrimination Suit By Astronomer Against University of Kentucky

The Louisville (KY) Courier-Journal reported yesterday that the University of Kentucky has settled a lawsuit brought against it by Martin Gaskell, an astronomer who was was not selected for the position of founding director of a new observatory at the University. Gaskell claimed his rejection resulted from religious discrimination.  He was the leading candidate until his views on the theory of evolution became known.  He believes the theory has major flaws and has assigned students readings on intelligent design.  Physics and biology professors were concerned about his mixing of religion and science, and one professor feared linking of the University in the public mind with the Creation Museum, also in Kentucky. In the settlement, the University agreed to pay Gaskell $125,000 without admitting any wrongdoing. (See prior related posting.)

Supreme Court Denies Cert In D.C. Gay Marriage Referendum Case

Yesterday the U.S. Supreme Court denied review in Jackson v. D.C. Board of Elections, (Docket No. 10-511, certiorari denied 1/18/2011). (Order List.) In the case, D.C.'s highest appellate court, in a 5-4 decision, upheld election officials' refusal to accept a petition seeking an initiative vote to bar D.C. from recognizing same sex marriages. (See prior posting.) CNN reports on the denial of cert.

British Court Awards Damages To Gay Couple Denied Double Room By Christian Hotel Owners

The Daily Mail and the Guardian both report today on a decision by a British court awarding damages to a gay couple who were not permitted by a hotel in Cornwall to share a double room.  Hotel owners Peter and Hazel Bull, who are devout Christians, do not allow unmarried couples-- whether heterosexual or gay-- to rent out any of the three double rooms in their seven-room hotel.  The Bulls, who live on the ground floor of the hotel, say their policy is based on their Biblical beliefs.  In the case, one of the first under the Equality Act (Sexual Orientation) Regulations 2007, the Bulls argued that their policy was based on sex, not sexual orientation. Plaintiffs, civil partners Steven Preddy and Martyn Hall, were each awarded damages of £1,800 ($2880 US). Bristol County Court Judge Andrew Rutherford wrote that he has no doubt that defendants' beliefs are genuine, but that the changed social attitudes reflected in the Equality Act regulations prevail even though they "cut across deeply held beliefs of individuals and sections of society." He said they are: "a necessary and proportionate intervention by the state to protect the rights of others."

In a statement, the Equality and Human Rights Commission which supported and funded plaintiffs in the lawsuit, said: "The right of an individual to practice their religion and live out their beliefs is one of the most fundamental rights a person can have, but so is the right not to be turned away by a hotel just because you are gay." A release by the Christian Institute (which funded the hotel owners' case) quotes owner Hazel Bull who says that she believes "Christianity in being marginalized in Britain." She also said that the court has given plaintiffs permission to appeal its ruling. (See prior related posting.)

EEOC Releases Data On Employment Discrimination Charges Filed in Fiscal 2010

Last week, the U.S. Equal Employment Opportunity Commission released statistics for the numbers of workplace discrimination charges filed with the agency in fiscal 2010 (ending Sept. 30, 2010). The data shows that overall the number of charges was up 7% over fiscal 2009.  Of the 99,922 charges filed in fiscal 2010, 3,790 (3.8%) were charges of religious discrimination (up from 3.6% in fiscal 2009).

More Recent Prisoner Free Exercise Cases

In Lee v. Johnson, 2011 U.S. Dist. LEXIS 3298 (WD VA, Jan. 13, 2011), a Virginia federal district court rejected an inmate's request for an order directing officials to allow him "to conduct Sabbat services each day" and his request for an order barring retaliatory action because of events after his meeting with two fellow inmates of the same religion that was broken up by a corrections officer.

In Barnes v. Fedele, 2011 U.S. Dist. LEXIS 3402 (WD NY, Jan. 13, 2011), a New York federal district court dismissed a number of plaintiff's claims, but permitted him to proceed in his claim for equitable relief regarding confiscation of his religious head wear-- a crown for his dreadlocks.

In Rea v. Colorado Department of Corrections, 2011 U.S. Dist. LEXIS 3321 (Jan. 13, 2011), a D CO, a Colorado federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 139634, Dec. 7, 2010) and dismissed plaintiffs' attempt to obtain various changes in prison rules to allow greater practice of religious rituals by Native Americans, including daily prayer meetings on sweat lodge grounds.

In Flanagan v. Shipman, 2010 U.S. Dist. LEXIS 139643 (ND FL, Dec. 3, 2010), a Florida federal magistrate judge recommended dismissing objections by a Native American inmate to prison restrictions barring pipe-smoking and smudging ceremonies without an outside volunteer who is qualified to handle certain sacred objects, and the lack of such outside volunteers.

In Bennett v. Fischer, 2011 U.S. Dist. LEXIS 464 (ND NY, Jan. 3, 2011) a New York federal district court adopted a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 139587, Aug. 17, 2010), and dismissed an inmate's free exercise claim, as well as his 8th Amendment claim on the basis of failure to exhaust administrative remedies. Plaintiff claimed that as a result of his participation in a congregate religious service, he received a false misbehavior report accusing him of creating a disturbance, engaging in an unauthorized demonstration, and refusing a direct order. The court permitted plaintiff to proceed with his due process claim growing out of his disciplinary hearing.

In Pressley v. Pennsylvania Department of Corrections, 2011 Pa. Commw. Unpub. LEXIS 52 (PA Commonw. Ct., Jan. 11, 2011), a Pennsylvania state court overruled the Department of Corrections preliminary objections to a claim by a Muslim inmate that he should be permitted access to the same kosher diet as Jewish inmates because the prison's pork-free diet for Muslim inmates was prepared in pots and pans and served on plates and with utensils that had not been adequately cleansed of pork products.

MLK Day-- King Memorial On National Mall Will Include Quotes From Sermons and Speeches

President Barack Obama has issued a Proclamation declaring today as the Martin Luther King, Jr. Federal Holiday. The occassion will be marked by a Day of Service.  Meanwhile last week Secretary of Interior Ken Salazar and other officials visited the work site of the King Memorial currently under construction on the National Mall in Washington, D.C.  It is located on the northeast corner of the Tidal Basin. The memorial will include quotes from Dr. King's sermons and speeches. The federal government has contributed $9.85 million toward the construction. Nearly $100 million has been raised so far from private sources.  It is expected that the memorial will be completed this year.

Egypt Sentences Killer of 6 Christians and Muslim Guard To Death

According to Canadian Press, an Egyptian court in the city of Qena yesterday convicted Mohammed Ahmed Hassanein of killing six Christians and a Muslim guard last year outside a church in the town of Nag Hamadi. (See prior posting.) Hassanein was sentenced to death on murder and terror related charges. Two accomplices will be sentenced next month.  The sentence comes amid tension from the more recent attack on a Coptic church in Alexandria on New Years eve. (See prior posting.)

Men Plead Guilty To Painting Graffiti on California Synagogue

A U.S. Department of Justice press release on Friday announced that two men pled guilty in a California federal district court to conspiring to violate the civil rights of members of a Modesto, California synagogue. Brian Lews and Abel Gonzales admitted to spray painting anti-Semitic and neo-Nazi graffiti on the exterior walls of Congregation Beth Shalom. They also caused other damage to two churches in Modesto.  The defendants face a possible prison sentence of up to ten years and a fine of up to $250,000 at their sentencing hearing in April.

Recent Articles of Interest

From SSRN:

  U.S. Law

• Thaddeus Mason Post, Conscientious Objection by Health Care Providers, (Lahey Clinic Medical Ethics Journal, 2011.)
• Dena S. Davis, Line-Drawing, Embryonic Stem Cell Research, and the Dickey-Wicker Amendment, Cleveland-Marshall Legal Studies Paper No. 10-201, Nov. 3, 2010).
• Paula L. Abrams, The Reasonable Believer: Faith, Formalism, and Endorsement of Religion, (Lewis and Clark Law Review, Vol. 14, No. 4, p. 1537, 2010).
• Daniel O. Conkle, Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, (Cardozo Law Review, Vol. 32, 2011).
• Mark Strasser, DOMA and the Constitution, (Drake Law Review, Vol. 58, pp. 1011-1035, 2010).

  Non-U.S. Law

• Mel Cousins, Registration of the Religion of Children Under the Irish Poor Law, 1838-1870, (The Journal of Ecclesiastical History, Vol. 61, No. 1, pp. 107-124, 2010).
• Matt Gibson, Rastafari and Cannabis: Framing a Criminal Law Exemption, (September 1, 2010).
• Mahesh S., and Bhumika Mukesh Modh, International Humanitarian Law: An Ancient Indian Perspective, (January 12, 2011).
• Joel A. Nichols and James McCarty, When the State is Evil: Biblical Civil (Dis)Obedience in South Africa, (St. John's Law Review, Vol. 84, 2011).
• Eduard J. Bomhoff and Mary Gu, Religion and Support for Democracy: A Comparative Study for Catholic and Muslim Countries, (January 7, 2011).

From SmartCILP:

• Rohit De, The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India, [Abstract], 28 Law and History Review 1011-1041 (2010).
• Bilal Khan and Emir Aly Crowne-Mohammed, The Value of Islamic Banking in the Current Financial Crisis, 29 Review of Banking and Financial Law 441-464 (2009-2010).
• Chandra Mallampalli, Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness, [Abstract], 28 Law and History Review 1043-1065 (2010).
• Jeffrey A. Redding, Queer/Religious Friendship in the Obama Era, 33 Washington University Journal of Law and Policy 211-272 (2010).

The January 2011 issue of Church and State has recently been published online.

Recent Prisoner Free Exercise Cases

In Warren v. Schweitzer, 2011 U.S. Dist. LEXIS 1066 (D MT, Jan. 6, 2011), a Montana federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 138843, Oct. 29, 2010) allowing an inmate to move ahead against one defendant with his claim that denial of his Odinist religious books and medallion violated the free exercise, establishment and equal protection clauses as well as RLUIPA.

In Martinez v. Foulk, 2010 U.S. Dist. LEXIS 138974 (ED CA, Dec. 29. 2010), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that prison officials denied his requests for a "lucifarian (satanic) bible" and failed to provide him with spiritual guidance by "an authorized church representative/chaplain."

In LaBlanc v. San Bernardino County Board of Supervisors, 2011 U.S. Dist. LEXIS 1238 (CD CA, Jan 5, 2011), a California federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 138992, Sept. 29, 2010) and dismissed a complaint by a civilly committed detainee held as a sexual predator that while in Administrative Segregation he was not permitted to attend church services.

In Nixon v. Zickefoose, 2011 U.S. Dist. LEXIS 1601 (D NJ, Jan. 7, 2011), a New Jersey federal district court dismissed a prisoner's class action lawsuit that alleged among other things that inmates were denied access to religious services when they were put in lock down because of unauthorized cell phones in the prison. Leave to refile amended individual claims was granted.

In Solomon v. Caruso, 2011 U.S. Dist. LEXIS 1486 (WD MI, Jan. 6, 2011), a Michigan federal district court permitted an inmate to proceed against certain defendants on his claim that his rights under the 1st and 14th Amendments and RLUIPA were violated when prison officials insisted on scheduling Moorish Scinece religious services on Saturday instead of Friday.

In Thomas v. Lawler, 2011 U.S. Dist. LEXIS 1913 (MD PA, Jan. 10, 2011), a Pennsylvania federal district judge dismissed, with leave to amend, an inmate's claim that he is unable to use the prison chapel to practice his religion because of bolted chairs and bolted religious symbols in the chapel.

In Washington v. Chaboty, 2010 U.S. Dist. LEXIS 139336 (SD NY, Dec. 30, 2010), an inmate challenged disciplinary action taken against him for violating a prison rule barring messages of a personal nature from inmates to prison employees. Plaintiff had given a corrections officer a copy of the Quran and two sheets of notes explaining it.  The court concluded that plaintiff's religious freedom rights were not violated, but that the rule barring personal communications to a corrections officer violates the free speech protections of the First Amendment. However it went on to hold that defendants here were protected by qualified immunity.

In Garcia v. Cameron, 2010 U.S. Dist. LEXIS 139305 (MD FL, Dec. 30, 2010), a Florida federal district court rejected an inmate's complaint that he was denied counseling with a Catholic priest.

In Robinson v. Owens, 2011 U.S. Dist. LEXIS 2511 (SD GA, Jan. 4, 2011), a Georgia federal magistrate judge rejected free exercise claims against the defendants named in a lawsuit brought by an inmate whose request for vegan meals was denied at the state Inmate Classification level.

Feds Seek To Close Down "Corporation Sole" Scam

AP reported Friday that federal prosecutors have filed suit seeking an injunction to prevent a North Carolina man from selling clients a fraudulent scheme to avoid federal income tax. Promoter Andrew DeDominicis has encouraged individuals to form a religious "corporation sole" to shield their assets from creditors and avoid taxes.  DeDominicis falsely told clients that for-profit income transfered to the corporation sole is exempt from income tax. A corporation sole is the entity form traditionally used by the Catholic Church and some other churches to hold church assets. The IRS has identified 163 people who have formed corporations sole-- usually under Nevada law-- with the assistance of DeDominicis.

Vermont Settles Vanity Plate Case After 2nd Circuit Loss

Friday's Washington Examiner reports that the state of Vermont will not seek U.S. Supreme Court review of the 2nd Circuit decision last October invalidating its vanity license plate statute's exclusion of plates with religious rreferences. (See prior posting.) In a settlement reached last week, the state agreed that Vermonter Shawn Byrne will be issued the license plate "JN36TN", intended to refer to the Biblical verse John 3:16. It will also allow others to obtain vanity plates with religious references. In addition, the state will pay Byrne's $150,000 in legal fees.

President Proclaims Today Religious Freedom Day

President Barack Obama has issued a Proclamation declaring to day to be Religious Freedom Day, celebrated each year on the anniversary of the passage of Virginia's 1786 Statute for Religious Freedom. The Proclamation reads in part:

My Administration continues to defend the cause of religious freedom in the United States and around the world. At home, we vigorously protect the civil rights of Americans, regardless of their religious beliefs. Across the globe, we also seek to uphold this human right and to foster tolerance and peace with those whose beliefs differ from our own. We bear witness to those who are persecuted or attacked because of their faith. We condemn the attacks made in recent months against Christians in Iraq and Egypt, along with attacks against people of all backgrounds and beliefs.

Federal Court Issues Preliminary Injunction Against "Family Values" Ordinance Limiting City's Health Insurance

Last November, the voters of El Paso, Texas approved an ordinance aimed at barring the city from providing health benefits to domestic partners of city employees. According to KVIA News, on Thursday a federal judge issued a preliminary injunction barring implementation of the ordinance until he makes a final ruling in mid-April. The ordinance was placed on the ballot by a local Christian group that opposes homosexuality, however the language of the ordinance apparently disqualified a number of unintended individuals. The ballot measure read: "Shall the ordinance, endorsing traditional family values by making health benefits available only to city employees and their legal spouse and dependent children, be approved?"  Currently the city provides insurance to a number of non-employees, such as elected officials, retirees and affiliated contractors. It also provides insurance for dependent grandchildren, not just children. In granting the preliminary injunction, the court concluded that the city needs a legitimate governmental interest in order to take away health insurance, and that it is difficult to identify that interest when the term "traditional family values" does not have a clear definition. The court also concluded that the ordinance may violate the Contract Clause of the U.S. Constitution. The court also denied the motion by the proponents of the ballot measure-- El Paso for Traditional Family Values-- to intervene and limited it to appearing in an amicus capacity. The group argued that the city would not adequately defend the ordinance.

Justice Department Files Appellate Brief Defending DOMA

On Thursday, the federal government filed its much anticipated appellate brief (full text) in Massachusetts v. U.S. Department of Health and Human Services and a companion case defending the constitutionality of the federal Defense of Marriage Act, even though President Obama supports repeal of the law. A Massachusetts federal district court struck down the law last July, and the government appealed. (See prior posting.) The brief in the 1st Circuit appeal explains:

The Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here. This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and helps ensure that the Executive Branch will faithfully defend laws with which an Administration may disagree on policy grounds.

CBS News reports that the Justice Department consulted with gay rights groups to avoid arguments in its brief that are particularly offensive to gays and lesbians. The brief argues that DOMA "is rationally related to legitimate governmental interests" of maintaining a uniform status quo at the national level while states experiment with different approaches to same-sex marriage.

Stampede During Hindu Pilgrimage In India Kills 104

In India, the government of the state of Kerala took quick rescue and relief action after a stampede near a Hindu temple Friday night killed 104 Makar Sankranti pilgrims and injured more than 60 others.  The Times of India reports that the stampede which took place near the Sabarimala Temple caught authorities off guard since it occurred on a forest route in side the Periyar tiger preserve which is less used by pilgrims. The state government will pay compensation to the injured and the families of those killed. There are conflicting stories as to the cause of the stampede, but they all involve vehicles either losing control or turning over.

Injunction Against Illinois Moment of Silence Law Formally Lifted

In October, the U.S. 7th Circuit Court of Appeals upheld upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges. (See prior posting.) The court remanded the case to the district court with instructions to enter judgment for the state board of education. The Evanston (IL) Review reports that the district court on Thursday formally lifted its earlier injunction against implementing the moment of silence law. Schools will begin having a mandatory moment of silence each day starting this coming week.

Court Says AIG Bailout Did Not Violate Establishment Clause Despite Offering of Shariah-Compliant Products

In Murray v. Geithner, (ED MI, Jan. 14, 2011), a Michigan federal district court rejected an Establishment Clause challenge to the bailout of AIG insurance by the federal government under the Emergency Economic Stabilization Act of 2008.  Plaintiff claimed that because AIG is a leader in offering Shariah-compliant insurance products, the government is using appropriated funds to finance Islamic religious activities in violation of the Establishment Clause. The court concluded, however, that the government had secular purposes that are not secondary to religious purposes, that AIG is not engaged in religious indoctrination attributable to the government, and that the government has not become excessively entangled with religion. It also concluded that Treasury Department activities publicizing and studying Shariah-compliant financial products do not amount to governmental endorsement of religion. The Detroit Free Press reports on the decision. (See prior related posting). Plaintiff quickly filed a notice of appeal to the 6th Circuit.

Burmese Political Party Creates Group To Discourage Religious Conversions

Irrawaddy reported yesterday that in Burma (Myanmar), the ruling Union Solidarity and Development Party has formed a new organization to discourage residents from converting from Buddhism to other religions.The organization, Sasana Nugaha, was formed by businessman Khin Shwe, a USDP member of the upper house of Parliament. Critics say the organization is attempting to politicize Buddhism and violates Sec. 407 of Burma's 2008 Constitution that prohibits any political party from "directly or indirectly receiving and expending financial, material and other assistance from ... a religious association" or "abusing religion for political purpose."

Legislation Introduced To Permit Religious Symbols In U.S. Military Memorials

A press release issued Tuesday by Congressman Duncan Hunter announced that he and two other California members of Congress have introduced the War Memorial Protection Act (HR 290). The bill comes in the wake of a 9th Circuit Court of Appeals ruling holding that the Mt. Soledad veterans' memorial cross violates the Establishment Clause. (See prior posting.) The bill provides:

To recognize the religious background of members of the United States Armed Forces, religious symbols may be included as part of--
(1) a military memorial that is established or acquired by the United States Government; or
(2) a military memorial that is not established by the United States Government, but for which the American Battle Monuments Commission cooperated in the establishment of the memorial.

Stripes Central reports on the bill.

Utah Sheriff's Letter To Employees Questioned on Church-State Grounds

Weber County, Utah sheriff Terry Thompson has removed a letter he sent to his employees from the Sheriff Department's Facebook page after a church-state objection by an employee was sent to him by a Salt Lake City attorney. According to yesterday's Deseret News, the letter told employees: "Always know that God, in whatever form you picture Him, recognizes our sacrifice and service, understands our imperfections and blesses us." It went on to assert that the death penalty was morally sound and said that God was "OK with it." Today's Ogden (UT) Standard-Examiner reports that local clergy are split over the propriety of the sheriff's letter, and a number object to his views on capital punishment.

School Board Seeks To Enjoin Bus Stop Street Preacher

In Dauphin County, Pennsylvania, the Dauphin Central School District is seeking an injunction to prevent street preacher Stephen Garisto from proselytizing middle school and high school students at a school bus stop.  The Harrisburg (PA) Patriot News reports that at a hearing yesterday, a state court judge extended a temporary injunction while she considers the case. Garisto, who insisted on being sworn in on a Bible at the hearing, says he has been ministering to children since the 1980's. He says his goal is to "get them saved and get them discipled."  Parents who testified Thursday expressed concerns about their children's safety. The school district's attorney argues: "These are kids. They don’t have the wherewithal to say to Mr. Garisto, ‘I don’t want a Bible tract'." During the hearing, Judge Jeannine Turgeon told Garisto: "Mr. Garisto, you’re not Mr. Rogers. In our culture we tell children, 'Do not talk to strangers.'" She said his actions mimic those associated with pedophiles and child abductors.

New Motions To Dismiss ACLU Suit Challenging Minnesota Cultural Identity Charter School

In 2009, the ACLU of Minnesota filed a federal lawsuit  against Tarek ibn Ziyad Academy (TiZA), a publicly-funded cultural identity charter school operating in the Twin Cities area, alleging that school policies promote Islam and that the school has improperly leased land from sectarian organizations-- all in violation of the Establishment Clause as well as various state constitutional and statutory provisions. (See prior posting.) The lawsuit also named the state commissioner of education as a defendant.  The St. Paul Pioneer Press and the Minneapolis Star-Tribune on Wednesday reported on two new developments in the case. The state's new education commissioner, Brenda Cassellius, filed a motion in court to dismiss the suit against the state, arguing that TiZA made multiple misrepresentations to the state which interfered in the state's ability to oversee the charter school. Meanwhile separately TiZA filed a motion to dismiss the case on the ground that the ACLU of Minnesota cannot bring the suit because it was administratively dissolved  by the Minnesota Secretary of State in 2006 for inadvertently failing to renew its registration.

Eruv Dispute in The Hamptons Goes To Court

27 East and Hampton Bays Patch both report that a lawsuit was filed in federal district court in New York yesterday by the East End Eruv Association challenging actions by the villages of Westhampton Beach and Quogue and the town of Southampton in preventing agreements with Verizon and the Long Island Power Authority for use of utility poles to create an eruv-- a symbolic boundary that allows Orthodox Jews within it to carry items on the Sabbath. (See prior related posting.) The suit against the Long Island villages and town claims that local officials are campaigning against the eruv.  Officials assert that attaching small markings or strips (lechis) to utility poles violates local zoning rules and sign codes, and that since the poles are in the municipalities' rights of way, government approval is required.  The lawsuit alleges that blocking the eruv amounts to religious discrimination. It asks the court to rule that there is no basis for asserting that local law prohibits creation of the eruv, demands that defendants drop their objections to the eruv, and asks for damages.

Suit Challenges County's Refusal To Display Church-State Separation Posters

Yesterday Americans United announced that it has filed a federal lawsuit on behalf of a resident of Johnson County, Tennessee who sought to have the county display two posters on the separation of church and state in the lobby of the county court house.  The complaint (full text) in Stewart v. Johnson County, Tennessee,  (ED TN, filed 1/13/2010), alleges that the county has adopted a limited public forum policy permitting local residents and organizations to donate displays of historical documents that "directly relate to the development of law, the universally-valued principle of equal justice under the law, the history and heritage of the law of Johnson County, State of Tennessee, or the United States, and/or the specific function of the Courthouse itself."

Among the displays already in the court house is a display that features the Ten Commandments and other historical documents along with a 26-page pamphlet that includes an introduction titled "From Biblical Morality to Modern Law."  Plaintiff's proposed 44 inch by 28 inch posters were titled "On the Legal Heritage of the Separation of Church and State" and "The Ten Commandments Are Not the Foundation of American Law." The county rejected them because they did not contain historical documents.The lawsuit contends that the display of the Ten Commandments while rejecting these posters violates plaintiff's free speech rights, the Establishment Clause and Art. I, Sec. 3 of the Tennessee Constitution that prohibits giving legal preference to any religion. [Thanks to Bob Ritter for the lead.]

Appeals Court Rejects Anti-SLAPP Motion In Suit Growing Out of Sikh Temple Elections

In Grewal v. Jammu, (CA App., Jan. 11, 2011), a California appellate court rejected defendants' motion to strike plaintiff's defamation claims under California's anti-SLAPP statute.  The claims grew out of a series of articles published in the Punjab Times relating to contentious elections of members of the Supreme Council of the San Francisco Bay Area Sikh Temple.The articles made various allegedly false charges of religious and financial wrongdoing by plaintiff, including charges that plaintiff had referred to the Temple school as a training school for terrorists and students of the Taliban. In a decision that is highly critical of misuses of the anti-SLAPP statute, the court concluded that the statute did not apply here because plaintiff had carried his burden of showing that he was likely to succeed on the merits of his defamation claims. The court described defendants' anti-SLAPP motion as one "that should never have been brought, generating an appeal that ... is utterly lacking in merit."

Church is Employer of Parish School Custodian for Workers' Comp Purposes

In Bravo v. Church of the Annunciation at Manhattanville, (S. Ct. NY, Jan. 10, 2011), a New York state trial court held that a Catholic Church exercised complete domination and control over a parish school so that the Church will be seen as the employer of  a custodian at the Annunciation School. This finding precludes the custodian, who has received workers' compensation payments for an injury suffered while working at the school, from bringing suit for additional recovery against the Church. Workers compensation precludes further recovery from one's employer. Had the court found that the School, which had a separate tax identification number, was the custodian's employer, a suit could have been maintained against the Church for additional damages.

Westboro Agrees Not To Picket Tucson Funerals In Exchange For Radio Appearances

The Topeka (KA) Capital-Journal reports that the Westboro Baptist Church has agreed to call off its planned picketing of the funerals of victims of the Tucson shooting massacre (see prior posting) in exchange for appearances by church spokesperson Shirley Phelps-Roper on several radio talk shows.The protest at the funeral of 9-year old Christina Green was bartered for appearances on talk shows on a suburban Phoenix station and a Canadian station. Picketing of the other funerals was called off after the nationally syndicated talk show hosted by Mike Gallagher offered time to Phelps-Roper and her daughters on Monday's show.

Sarah Palin's Use of Term "Blood Libel" Draws Jewish Criticism

The Washington Post reports on the controversy that has been stirred up by Sarah Palin in her release of a video criticizing those who are blaming the Tucson shooting tragedy on political rhetoric such as hers. Her statement included the following:

Journalists and pundits should not manufacture a blood libel that serves only to incite the very hatred and violence they purport to condemn.

Jewish groups, such as the National Jewish Democratic Council, took umbrage at her use of the term "blood libel", pointing out that the term has traditionally described the anti-Semitic canard that Jews use the blood of Christian children for rituals such as baking of Passover matzoh. Critics found use of the term particularly insensitive because wounded Congresswoman Gabrielle Giffords is Jewish. However some, like Harvard law professor Alan Dershowitz, defended Palin saying that the term blood libel has taken on a broader meaning of any kind of untrue charges.

Vanderbilt's Nurse Residency Application Challenged As Violating Church Amendment

Alliance Defense Fund announced yesterday that it had filed a complaint (full text) with the U.S. Department of Health and Human Services Office for Civil Rights challenging Vanderbilt University's nurse residency application requirements. A federal statute, 42 USC 300a-7 (known as the "Church Amendment"), prohibits any entity reveiving grants under various federal programs from discriminating against applicants for training or study "because of the applicant's reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant's religious beliefs or moral convictions."  The Vanderbilt application packet contains an acknowledgement that must be signed by applicants seeking admission to the Women's Health Track of the Nurse Residency Program which states in part:

If you are chosen for the Nurse Residency Program in the Women's Health track, you will be expected to care for women undergoing termination of pregnancy....  It is important that you are aware of this aspect of care and give careful consideration to your ability to provide compassionate care to women in these situations. If you feel you cannot provide care to women during this type of event, we encourage you to apply to a different track of the Nurse Residency Program to explore opportunities that may best fit your skills and career goals.

UPDATE: On Jan. 12, Vanderbilt announced that it was changing its nurse residency application, according to a release by ADF. The application now says that "no health care provider is required to participate in a procedure terminating a pregnancy if such participation would be contrary to an individual’s religious beliefs or moral convictions." [Thanks to Friendly Atheist for the update.]

Sunrise Rock Cross Litigation Becomes Even More Complicated

The complex procedural history of the Establishment Clause challenge to the Sunrise Rock Cross in the Mojave Preserve veterans' memorial has just become more complicated. Liberty Institute announced yesterday that it has filed a new lawsuit on behalf of the VFW seeking to enforce the statute passed by Congress in 2003 (Defense Appropriations Act 2004, Sec. 8121) directing the Secretary of Interior to transfer title to the property to the VFW. The constitutionality of the transfer statute was challenged on Establishment Clause grounds in a previous lawsuit. Last year the U.S. Supreme Court reversed the 9th Circuit's decision that had found Establishment Clause problems with the transfer. However the Supreme Court's reversal and remand -- in six fragmented opinions-- did not clearly decide the merits of the case. (See prior posting.) Now in VFW Post 385 v. United States, (CD CA, filed 1/10/11) (full text of complaint), the VFW asks the court to quiet title to the parcel of land, to issue a declaratory judgment that the VFW is the owner of the land and to issue an injunction requiring the Secretary of Interior to consummate the land transfer. The lawsuit was apparently triggered by the district court's recent decision refusing to permit the VFW to intervene in the case on remand from the Supreme Court. Riverside (CA) Press Enterprise reports on the new lawsuit. For other developments, see prior related posting. [Thanks to Alliance Alert for the lead.]

Regional NLRB Decision Holds Manhattan College Is Secular; Representation Election Ordered

In In re Manhattan College, (NLRB, Jan. 10, 2010), a National Labor Relations Board regional director held that the judicially and administratively developed exemption from NLRB coverage for colleges whose purpose is the propagation of a religious faith does not apply to New York's Manhattan College. The holding comes in response to a petition by the Manhattan College Adjunct Faculty Union to hold an election for it to become the collective bargaining representative for part-time adjunct faculty.  The decision concludes that the evidence shows the purpose of the college is secular. It finds that there is little risk that exercising NLRB jurisdiction will lead to unconstitutional entanglement of government and religion because the "school's stated purpose does not involve the propagation of a religious faith, teachers are not required to adhere to or promote religious tenets, a religious order does not exercise control over hiring, firing, or day-to-day operations, and teachers are given academic freedom..." According to Inside Higher Ed yesterday, the case has been closely followed by both labor unions and religious organizations. The college administration has emphasized the Catholic nature of the institution. (See prior related posting.)

Pakistani Court Imposes Life In Prison For Blasphemy In Disagreement Between Sunni Sects

AFP reported yesterday on another controversial blasphemy conviction in Pakistan. An anti-terrorism court in the town of Muzaffargarah sentenced imam Mohammad Shafi and his son Mohammad Aslam to life imprisonment for tearing down and trampling a poster containing Quar'anic verses. The poster, which had been  put up outside their grocery store, advertised an event in a nearby village celebrating the birthday of the Prophet Muhammad.  Islamic sects differ on whether celebrating Mawlid (the Prophet's birth) is permissible. (Background.) Apparently those promoting the event were members of the Barelvi sect of Sunni Islam which publicly celebrates Mawlid, while defendants are members of the Deobandi sect of Sunni Islam which considers the celebration forbidden.

Arizona Moving To Pass Funeral Picketing Law In Face of Westboro Plans To Picket Massacre Victims' Funerals

The notorious Westboro Baptist Church has announced that it will picket the funerals of the six shooting victims in Tucson, Arizona. It claims God sent the shooter because of a veteran's plans last month to shoot at WBC members. The announcement also claimed that shooting a federal judge and a member of Congress occurred because WBC was placed on trial in Baltimore and because Congress' passed three laws against WBC. CNN reports that Tucson residents plan to shield mourners at the funeral of 9-year old victim Christina Green by wearing 8 x 10 foot angel wings. Meanwhile, according to TPM today, members of the Arizona state legislature are reacting by moving to quickly enact a law barring funeral protests.

UPDATE: Politico reports that on Jan. 11 the legislature passed and the governor signed SB 1101 barring protests within 300 feet of a funeral from one hour before to one hour after the ceremony.

Some Claims On Behalf of Muslim Student Over Classroom Content May Proceed

In Doe v. Cape Henlopen School District, (D DE, Jan. 7, 2011), the mother of a Muslim student sued claiming that her daughter's fourth-grade teacher created a classroom environment that promoted Christianity and excluded Muslim beliefs. The suit also alleged that the daughter was traumatized by a transfer to another classroom and her friends' reactions to her after that. The Court granted defendants' summary judgment on certain of the claims but found that as to a number of others there remained genuine issues of material fact so that the claims should proceed to trial. At issue were teacher Cindy Cunningham's class discussions of the events of 9/11 and her reading of Christmas books to her class every day between Thanksgiving and Christmas. The court concluded that the issue of whether the Christmas readings violate Art. 1, Sec. 1 of the Delaware Constitution (protecting religious freedom and barring religious preferences) and the federal equal protection clause should go to trial, but dismissed claims regarding the 9/11 textbook used and a deliberate indifference claim. The court also found that the student's transfer to another classroom may have been retaliation and ordered that claim to go to trial, and refused to find at this point that defendants had qualified immunity. [corrected]

Cert. Denied In RLUIPA Zoning Decision

The U.S. Supreme Court yesterday denied certiorari in Board of County Commissioners v. Rocky Mountain Christian Church,(Docket No. 10-521, cert. denied 1/10/2011) (Order List).  In the case, the 10th Circuit held that sufficient evidence was presented at trial to justify the jury's determination that the denial of a special use application to Rocky Mountain Christian Church violated the equal terms and unreasonable limitations provisions of RLUIPA. (See prior posting.) The Boulder (CO) Daily Camera reported on the Supreme Court's refusal to review the case.

Catholic Bishop At Odds With Rhode Island's New Governor

Tension seems to be developing already between Providence, Rhode Island Catholic Bishop Thomas Tobin and Rhode Island's newly-inaugurated governor, Lincoln Chafee. According to the Providence Journal, last week, for the first time in at least 20 years, no Catholic bishop offered a prayer at the governor's inauguration ceremony.  In a column published two days later in The Rhode Island Catholic, Bishop Tobin took issue with the reason for Chaffee's decision not to begin inauguration day with a public prayer service. Chaffee's spokesman said that the decision was made out of respect for the principle of separation of church and state. Bishop Tobin complained:

The point is this: religion has an important, indeed a unique contribution to make to the governance of our society. Can we, once and for all then, put to rest the bogus interpretations of the “separation of church and state” so often cited these days?

The Governor's spokesman later said that had misspoken.  He meant to say that the governor believed individuals should pray in their own ways instead of in a prayer service organized by the governor's office. Within days, Bishop Tobin again criticized Gov. Chaffee, this time for his support for a bill to legalize same-sex marriage in Rhode Island. According to the Providence Journal, a gay-marriage bill supported by the governor was introduced in the legislature last Friday.  Tobin called the bill morally wrong and divisive.

Aga Khan Wins Canadian Copyright Case Against Followers Who Published His Pronouncements

The Aga Khan, currently a resident of France, is the spiritual leader of the Shia Imani Ismaili Muslims around the world.  He gives advice and guidance to his followers through issuing Farmans (recorded talks) an Talikas (written religious messages). In 2009, one of the Aga Khan's followers, Nagib Tajdin (with the assistance of others) published Farmans 1957-2009 – Golden Edition Kalam-EIman-E-Zaman, a collection of the Aga Khan's Farmans and Talikas. Ismaili authorities asked them to cease publication, but they refused, claiming that they had the consent of the Aga Khan to publish them.  Tajdin claimed that a letter from the Aga Khan asking him to cease publication was a forgery.  This led to the Aga Khan bringing suit in Canada's Federal Court claiming copyright infringement. In Aga Khan v. Tajdin, (Fed. Ct. Canada, Jan. 7, 2011), the court concluded that the Aga Khan had not given his consent to others to publish his pronouncements and permanently enjoined defendants from publishing or distributing the Golden Edition.  It also issued a reference for the determination of damages. Vancouverite reports on the decision.

Pope Addresses Diplomatic Corps Calling For Expanded Religious Liberty

Yesterday Pope Benedict XVI delivered his annual address (full text) to the diplomatic corps accredited to the Holy See-- ambassadors from 178 countries. Zenit reports that Vatican officials characterized the Pope's remarks as opening a new chapter in the commitment to religious liberty. Here are a few excerpts:

[T]he attacks which brought death, grief and dismay among the Christians of Iraq, even to the point of inducing them to leave the land where their families have lived for centuries, has troubled us deeply. To the authorities of that country and to the Muslim religious leaders I renew my heartfelt appeal that their Christian fellow-citizens be able to live in security, continuing to contribute to the society in which they are fully members.

In Egypt too, in Alexandria, terrorism brutally struck Christians as they prayed in church. This succession of attacks is yet another sign of the urgent need for the governments of the region to adopt, in spite of difficulties and dangers, effective measures for the protection of religious minorities.....

Among the norms prejudicing the right of persons to religious freedom, particular mention must be made of the law against blasphemy in Pakistan: I once more encourage the leaders of that country to take the necessary steps to abrogate that law, all the more so because it is clear that it serves as a pretext for acts of injustice and violence against religious minorities....

Turning our gaze from East to West, we find ourselves faced with other kinds of threats to the full exercise of religious freedom. I think in the first place of countries which accord great importance to pluralism and tolerance, but where religion is increasingly being marginalized. There is a tendency to consider religion, all religion, as something insignificant, alien or even destabilizing to modern society, and to attempt by different means to prevent it from having any influence on the life of society.....

UPDATE: The Jan. 11 Wall Street Journal reports that in response to the Pope's criticism, Egypt recalled its ambassador to the Vatican. [Thanks to Pew Sitter for the lead.]

Canadian Court Rejects Exemption for Marriage Commissioners from Performing Same-Sex Unions

The Court of Appeal for Saskatchewan has held that it would be unconstitutional under Canada's Charter of Rights and Freedoms for the provincial legislature to accommodate the religious beliefs of government marriage commissioners by exempting those who object from solemnizing same-sex marriages.  The decision came in Marriage Commissioner's Reference, (Ct. App. SK, Jan. 10, 2011), a request of the Saskatchewan government to pass on the validity of two possible amendments to the Marriage Act. Here is a summary of the court's holding as set out in the court's case summary:

The reasoning of the Court is grounded in section 15(1) of the Charter.. prohibit[ing] discrimination based on various characteristics including sexual orientation.... [A] law empowering marriage commissioners to deny their services to gay and lesbian individuals would clearly violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

... [T]he Court held that accommodating the religious beliefs of marriage commissioners could not justify discrimination against gay and lesbian couples.... [M]arriage commissioners act as government officials, not private individuals, when they perform marriage ceremonies.... [T]he obligation to solemnize same-sex marriages does not affect or interfere with the core elements of a commissioner’s religious freedom: the freedom to hold beliefs and the freedom to worship.... [A]llowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.

CTV News reports on the decision. Toronto Globe and Mail reports that Saskatchewan will not appeal the ruling.

Cert. Denied In RLUIPA Prisoner Free Exercise Case

The U.S. Supreme Court today denied certiorari in Thunderhorse v. Pierce, (Docket No. 09-1353, cert. denied 1/10/11) (Order List). In the case, the 5th Circuit rejected a RLUIPA claim by a Native American inmate, upholding prison restrictions denying him permission to grow his hair, prohibiting him from performing pipe ceremonies in his cell, and limiting vendors from whom he could buy a headband. (See prior posting.) The petition for review (via Scotus blog), focusing on the prison's grooming rule, asserts that there is a split in circuits on the question of how much deference to give to prison officials under RLUIPA in deciding whether the government has used the least restrictive means to achieve a compelling interest.

New Hampshire High Court Hears Arguments In Home Schooling Case

The New Hampshire Supreme Court last week heard oral arguments (video of full arguments) in a divorce case that has gained national attention through the publicity given to it by groups that see it as an important religious freedom test.  As reported by AP, at issue is a disagreement between parents with joint custody of their 11-year old daughter over her schooling.  Amanda, daughter of Brenda Voydatch and Martin Kurowski, was home schooled by her mother through the fourth grade using Christian-based material from Bob Jones University. In 2009, Amanda's parents were unable to agree on where she should continue her education. Amanda's father wanted her exposed to different points of view and more social interaction than was available through home schooling. When the parents could not agree on an alternative, a state family court judge ordered that Amanda attend public school. The mother's attorneys characterize this as punishing the mother and daughter for their religious views. However the case may turn on whether the lower court order is seen as a modification of the parenting plan, which would require the father to show that Amanda was being harmed by home schooling. [corrected]

Referee Concludes That Ohio Science Teacher Repeatedly Violated Establishment Clause

In Mount Vernon, Ohio on Friday, a referee appointed pursuant to an Ohio Revised Code 3319.16 has recommended that middle school science teacher John Freshwater's contract be terminated because of Freshwater's repeated violations of the Establishment Clause. (Full text of referee's findings.) The Mount Vernon City School Board voted unanimously in 2008 to fire Freshwater after an investigation of complaints that he 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.)

In Friday's report, the referee, appointed after Freshwater demanded a hearing, concluded that while Freshwater was a successful and well-liked science teacher, he insisted on inserting his personal religious beliefs into his instruction.  The referee concluded that Freshwater:

persisted in his attempts to make eighth grade science what he thought it should be – an examination of accepted scientific curriculum with the discerning eye of Christian doctrine. John Freshwater ignored the concept of in loco parentis and, instead, used his classroom as a means of sowing the seeds of doubt and confusion in the minds of impressionable students as they searched for meaning in the subject of science. John Freshwater purposely used his classroom to advance his Christian religious views knowing full well or ignoring the fact that those views might conflict with the private beliefs of his students. John Freshwater refused and/or failed to employ objectivity in his instruction of a variety of science subjects and, in so doing, endorsed a particular religious doctrine.

Yesterday's Columbus Dispatch, reporting on these developments, points out that the board of education, whose composition now differs somewhat from that of the board that initially voted to fire Freshwater, is not bound to accept the referee's conclusions. Freshwater's hearing, that went on sporadically for nearly two years, cost taxpayers $700,000. Freshwater's activities have generated a number of lawsuits, all of which now have been concluded in one fashion or another. (See prior related posting.)

UPDATE: The Jan. 11 Mount Vernon (OH) News reports that the Mount Vernon City Schools Board of Education voted 4-1 to accept the referee's report and to fire Freshwater. Freshwater can still appeal this decision to a state common pleas court.

Suit Challenges Zoning Restrictions On New Jersey Synagogue

A long-simmering zoning dispute between an Orthodox Jewish congregation and officials in Teaneck, New Jersey (see prior posting) last month matured into a lawsuit.  The complaint (full text) in 554 Queen Anne Road, Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., filed 12/17/2010) alleges that restrictions placed on use of a property for religious worship by zoning authorities are vague, largely have no relation to land use objectives and are more onerous than restrictions placed on comparable secular and religious institutions. The dispute began as one over whether a house, used as a home by the rabbi of Etz Chaim of Teaneck, had been turned into a house of worship that needed zoning approval when religious services were moved from the living room to the family room. The synagogue agreed to apply for Board of Adjustment approval of use of the family room addition as a house of worship. However  the Board placed conditions on its use that the synagogue found unacceptable. Plaintiffs argue that the conditions imposed by the Board of Adjustment on Etz Chaim Synagogue violate the U.S. and New Jersey's constitutions, RLUIPA and New Jersey zoning laws. [Thanks to Thomas Rockland for the lead.]

Recent Articles and Books of Interest

From SSRN:
      U.S. Law:

• Ira C. Lupu and Robert W. Tuttle, The Forms and Limits of Religious Accommodation: The Case of RLUIPA, Cardozo Law Review, Vol. 32, 2011).
• Lloyd H. Mayer, Charities and Lobbying: Institutional Rights in the Wake of Citizens United, Notre Dame Legal Studies Paper No. 10-39, Jan. 4, 2011).

       Same-Sex Marriage:

• Mark Strasser, On Same-Sex Marriage and Matters of Conscience, (William and Mary Journal of Women and the Law, Vol. 17, pp. 1-36, 2010).
• Mark Strasser, Tribal Marriages, Same-Sex Unions, and an Interstate Recognition Conundrum, (Boston College Third World Law Journal, Vol. 30, pp. 207-37, 2010).
• Mark Strasser, Interstate Marriage Recognition and the Right to Travel, (Wisconsin Journal of Law, Gender and Society, Vol. 25, No. 1, pp. 1-34, Spring 2010).
• William E. Thro, The Heart of the Constitutional Enterprise: Affirming Equality and Freedom in Public Education, (Brigham Young University Education and Law Journal, 2011).

      Non-U.S. Law:

• Tanya Kateri Hernandez, Hate Speech and The Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models, (University of Pennsylvania Journal of International Law, Forthcoming).
• Avishalom Westreich, The Right to Divorce in Jewish Law: Between Politics and Ideology, (International Journal of the Jurisprudence of the Family, 2011).
• Prakash Shah, A Reflection on the Shari'a Debate in Britain, (Studia z Prawa Wyznaniowego (Studies of Ecclesiastical Law), Vol. 13, pp. 71-98, 2010).
• Germano Schwartz, The Representation of the Sacred and the Insufficient Functional Differentiation of the Legal System in Brazil, (January 3, 2011).

      Jurisprudential Concerns:

• Barbara P. Billauer, Optimal Justice: Education, Rehabilitation, Forgiveness - Or How Joseph Ends Sibling Rivalry and Becomes a Saint, (November 2, 2010).
• Ian C. Bartrum, Nonpublic Reasons and Political Paradigm Change, (St. John's Law Review, Forthcoming).
• Robert T. Miller, Review of Permutations of Order: Religion and Law as Contested Sovereignties, (Journal of Contemporary Religion, Vol. 25, No. 3, p. 471, 2010).
• Howard Lesnick, Can Liberal Religion Ground Moral Imperatives?, (U of Penn Law School, Public Law Research Paper No. 11-1, Dec. 22, 2010).

New Books:

• Brian T. Kaylor, Presidential Campaign Rhetoric in an Age of Confessional Politics, (Lexington Books, Dec. 2010).
• George C. Rable, God's Almost Chosen Peoples: A Religious History of the American Civil War, (Univ. of North Carolina Press, Nov. 2010), reviewed at Physorg.
• Paul Horwitz, The Agnostic Age: Law, Religion and the Constitution, (Oxford Univ. Press, Jan. 2011), text of Introduction at SSRN.

EEOC Religious Accommodation Suit Settled

The EEOC announced last week that an educational testing company, Measurement Inc., has settled a lawsuit filed against it by the EEOC charging it with religious discrimination.  The suit was brought on behalf of employee Jacqueline Dukes who was a member of the Christian denomination Children of Yisrael. Her religious beliefs preclude her from working on her Sabbath, from sundown Friday to sundown Saturday. Her employer fired her for refusing to work on her Sabbath instead of accommodating her religious beliefs.  In the settlement, Measurement Inc. has agreed to pay compensatory damages plus $110,000 in back pay.  The three-year consent decree also requires the company to avoid further religious discrimination, institute anti-discrimination training, post a notice about the lawsuit and report on its handling of other religious accommodation requests. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Daker v. Warren, 2011 U.S. Dist. LEXIS 99 (ND GA, Jan. 3, 2011), a Georgia federal district court permitted plaintiff to proceed with his claim that his free exercise rights and his rights under RLUIPA were violated by Detention Center policies that deny Muslim inmates Friday Jum'ah sevices and that bar inmates from receiving hard cover books. Plaintiff claims he is required to seek knowledge about Islam in part from books that are available only in hard cover.

In Salvatierra v. Connolly, 2011 U.S. Dist. LEXIS 10 (SD NY, Jan. 3, 2011), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 137731, Sept. 1, 2010), and, while dismissing a number of claims, permitted an inmate to proceed with his claim that a corrections officer hit him in the face with his kosher meal bag while making a derogatory remark about it. This caused him to stop eating kosher meals to prevent problems with the officer.

In Kennedy v. Hayes, 2010 U.S. Dist. LEXIS 138296 (ED CA, Dec. 28, 2010), a California federal magistrate judge rejected an inmate's challenge to disciplinary action taken against him for threatening a doctor by telling the doctor that "God will take care of you." The court rejected plaintiff's argument that this was merely an expression of plaintiff's religious beliefs.

In Parks v. Brooks, 2010 U.S. Dist. LEXIS 138135 (D NV, Dec. 15, 2010), a Nevada federal district court dismissed an inmate's RLUIPA claims growing out of alleged denial of kosher meals to him. The court held that plaintiff's claim for an injunction is moot and that under RLUIPA monetary damages are not recoverable against defendants in in either their official or individual capacities.

In Simmons v. Robinson, 2011 U.S. Dist. LEXIS 337 (SD NY, Jan. 4, 2011), a New York federal district court rejected plaintiff's objections and accepted a magistrate's recommendation (2010 U.S. Dist. LEXIS 138332, Jan. 28, 2010), to dismiss claims by a Muslim prisoner at Sing Sing that prison officials inadequately protected his food on the religious alternative menu from pork contamination.

In Rinehart v. Beck, 2011 U.S. Dist. LEXIS 1037 (ED NC, Jan. 4, 2010), a North Carolina federal district court rejected an inmate's free exercise challenge to the prison's policy barring inmates from possessing disposable razors. Plaintiff had argued that he fears the health consequences of shaves by prison barbers using electric razors, so his only alternative is to convert to Islam to take advantage of the limited exception allowing Muslim inmates to use disposable razors to shave certain areas of the body as a part of their religious hygiene.

Lutheran University Entitled To Title VII Exemption For Religious Hiring; Exemption Cannot Be Waived

In Ginsburg v. Concordia University, (D NE, Jan. 5, 2011), a Nebraska federal district court held that that a Lutheran university sued under title VII of the 1964 Civil Rights Act is entitled to the exemptions provided by the statute for religious-based hiring by religious educational institutions (42 USC 2000e-1) and by religious colleges (42 USC 2000e-2). The lawsuit was brought by a woman's softball coach who claimed he was dismissed because he was Catholic, not Lutheran. The court rejected plaintiff's argument that the school waived its exemption when it hired him knowing he was not Lutheran. The court held that an institution cannot waive its right to assert the statutory exemptions, and that the exemption covers those employed in any of the institution's activities, not just in activities overtly religious in nature. The case is covered in yesterday's BNA Daily Labor Report (subscription required).   [Thanks to Steven H. Sholk for the lead.]

Class Action Charges Anti-Semitism in New York Town's Schools

Today's Lower Hudson Journal News reports on a class action lawsuit filed last month in a New York federal district court charging the Mahopac (NY) Central School District with anti-Semitism. The complaint alleges that Jewish students in Mahopc face a strong anti-Semitic environment. It claims that Jewish children in the Mahopac schools "are subjected to the widespread use of racial and religious epithets and slurs, including being subjected to depictions of swastikas and other symbols and references to Nazism and the Holocaust ... not only by students but also by school officials themselves." School system lawyers say that the school system denies the allegations.

UPDATE: Here is the full text of the complaint in N.B. v. Mahopac Central School District, (SD NY, filed 12/8/2010). [Thanks to Peter D. Hoffman.]

New Trial Granted In Patent Case Because of Lawyer's Remarks Appealing To Religious Prejudice

In Commil USA, LLC v. Cisco Systems, Inc., (ED TX, Dec. 29, 2010), a Texas federal district court judge has granted plaintiff a new trial in a patent infringement case because of remarks made during trial by defendant's counsel appealing to possible anti-Jewish prejudices of jurors.  The jury awarded plaintiff $3.7 million on its direct infringement claims. The new trial was awarded on the issues of indirect infringement and damages. As recounted by the court:

Jonathan David, one of the owners of Commil ... is Jewish. While cross-examining Mr. David, Cisco's counsel inquired whether Mr. David had met with Nitzan Arazi, one of the inventors .... Mr. David responded affirmatively, explaining that they had had dinner at a barbeque restaurant, to which Cisco's counsel inexplicably responded: "I bet not pork."

When the court asked Cisco’s counsel to explain the relevance of his comment, Cisco's counsel admitted that it had no relevance to any issue in the case.... Thereafter, Cisco's counsel apologized to the witness, and the court gave a curative instruction.

Although Cisco's counsel acknowledged that his pork comment was inappropriate, he nevertheless proceeded to make further remarks regarding religious practices. Cisco's counsel’s closing argument began:

Ladies and Gentlemen of the Jury, you are, in this case, truth-seekers.... You remember the most important trial in history, which we all read about as kids, in the Bible had that very question from the judge. What is truth?

Cisco's counsel was referring to the trial of Jesus, which was presided over by Pontius Pilate. This argument, when read in context with Cisco's counsel's comment regarding Mr. David and Mr. Arazi's religious heritage, impliedly aligns Cisco’s counsel’s religious preference with that of the jurors and employs an "us v. them" mentality – i.e., "we are Christian and they are Jewish."

American Lawyer yesterday reported on the decision.

Conservatives Urge Republicans In New Congress To Remember Social Issues

Freedom Federation announced today that leaders of 30 conservative groups have sent a letter (full text) to Republican leaders of the House and Senate in the 112th Congress urging them not to forget social issues as they pursue economic and national defense issues as well. The letter says in part:

 A stool with only one or two legs is unstable.... When considering America’s fiscal and national defense policies, which are critically important, we believe that social issues, including, but not limited to, the sanctity of human life and the preservation of marriage as the union of one man and one woman, are indispensible.