State of the Union Speech Includes Two References To U.S. Religious Diversity

President Obama's State of the Union address last night (full text) contained two references to religious affiliation of Americans.  The first was in connection with U.S. efforts to prevent al-Qaeda attacks:

And as extremists try to inspire acts of violence within our borders, we are responding with the strength of our communities, with respect for the rule of law, and with the conviction that American Muslims are a part of our American family.

The second reference was in the President's remarks on the recent repeal of "Don't Ask, Don't Tell":

Our troops come from every corner of this country – they are black, white, Latino, Asian and Native American. They are Christian and Hindu, Jewish and Muslim. And, yes, we know that some of them are gay. Starting this year, no American will be forbidden from serving the country they love because of who they love. And with that change, I call on all of our college campuses to open their doors to our military recruiters and the ROTC....

Court Preliminarily Enjoins Enforcement of County Funeral Picketing Law

In Phelps-Roper v. County of St. Charles, Missouri, (ED MO, Jan. 24, 2011), a Missouri federal district court issued a preliminary injunction against a St. Charles (MO) County Ordinance that prohibits picketing within 300 feet of a funeral. In the lawsuit, filed on behalf of members of the Westboro Baptist Church, the district court concluded that 8th Circuit precedent make it likely that the law would be invalidated as not narrowly tailoered or as facially over broad. Suburban Journals reports on the decision.

Hockey Player Sues Teams and Coaches For Anti-Semitic Harassment

TSN and CNN reported yesterday that Jason Bailey, a Jewish hockey player, has filed suit in a California state court alleging an anti-Semitic work environment created by the coach and assistant coach of the Bakersfield (CA) Condors.  The suit also names as defendant the Anaheim Ducks, the Condors' parent team. The suit alleges that the coaches directed anti-Semitic remarks at him, forced him to travel apart from the team and denied him playing and practice time. At one point, the Condors forced the coaches to send letters of apology to Bailey, but Bailey says they were insincere.

Ban On Firearms In Churches Does Not Infringe Free Exercise Rights

In GeorgiaCarry.Org, Inc. v. State of Georgia, (MD GA, Jan. 24, 2011), a Georgia federal district court upheld the constitutionality of a Georgia statute that prohibits the carrying of firearms in any place of worship. The suit was brought by a firearms group, a Baptist church and its pastor. Plaintiffs alleged that the restriction infringed their free exercise of religion. They argued that their ability to attend or conduct worship services was burdened by prohibiting them from carrying a firearm for self defense while doing so. The court rejected the argument, finding that the restriction did not amount to a substantial burden on plaintiffs' religious exercise, nor does it unconstitutionally infringe on the church's ability to manage its internal affairs. The court also rejected plaintiffs' Second Amendment challenge to the law. Finally the court held that the state of Georgia (as opposed to other officials named as defendants) enjoyed sovereign immunity against the claims asserted. The Atlanta Journal Constitution reports on the decision.  Links to the pleadings and other documents in the case are available form GeorgiaCarry's website.

UPDATE: The Atlanta Journal Constitution reports that on Jan. 26  Georgia Carry filed a notice of appeal to the 11th Circuit.

India's Supreme Court Withdraws Language Criticized By Christians

According to Cath News, India's Supreme Court today withdrew on its own initiative a paragraph in an opinion it handed down last week that had created significant concern among Christian leaders and human rights groups. At issue was the court's decision reviewing the life sentence imposed on radical leader Dara Singh who was convicted of leading a mob that set fire to a station wagon in which Australian missionary Graham Staines and his two sons were sleeping, killing the three.  The prosecution has sought the rarely-imposed death penalty, but the lower court imposed life imprisonment. In upholding the sentence, the Supreme Court originally said that the killers had acted with the "intention to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur." Critics said the language would embolden Hindu radicals and that it is inconsistent with Sec. 25 of the Indian Constitution that allows individuals to profess, practice and propagate their religion.

Swiss High Court Says No To Trademark Registration of "Madonna"

International Law Office yesterday published an analysis of an interesting trademark law decision handed down in September 2010 by Switzerland's Federal Supreme Court.  The court refused to add the figurative international trademark "Madonna" to the Swiss Trademark Register on the ground that commercial use of the term-- a reference to the Virgin Mary-- would be immoral under Swiss trademark law. Commercial use of the term could hurt the religious feelings at least of Italian speaking Catholics in Switzerland. The court however said that religious terms could be registered where the public has become accustomed to their commercial use (such as the names of saints used for alcoholic beverages), or where the trademark is for goods or services with religious content.

Court Finds Priest Abuse Claim Against Diocese Is Not Time-Barred

In Wisniewski v. Diocese of Belleville, (Ill. App., Jan. 13, 2011), an Illinois appellate court in a 2-1 decision rejected a statute of limitations and repose defense raised by a Catholic diocese held responsible for sexual abuse by a priest.  In a lengthy decision, the majority found that the fraudulent concealment doctrine tolled the statute of repose in the suit in which a jury had awarded plaintiff $2.4 million in compensatory damages and $2.6 million in punitive damages. The court also upheld the legal sufficiency of plaintiff's claim on the merits, stating:

[T]he Diocese had knowledge of Kownacki's [the priest's] propensity to abuse minor children, plying them with alcohol prior to abusing them and telling them the abuse was a good thing. The Diocese placed Kownacki in the position to abuse Wisniewski in the same manner, and the Diocese facilitated and promoted Kownacki's abuse not only through silence but through affirmative acts of misrepresentation concerning Kownacki's character . Almost all the abuse ... occurred on church property that Kownacki occupied solely because of his position as a priest of the Diocese. The opportunity for abuse created by the Diocese called for the exercise of control by the Diocese. Its failure to do so is unquestionably actionable in Illinois courts.

Judge Spomer dissented, arguing that under then-applicable statute of repose, plaintiff's claims were time barred in 1991 when he reached the age of 30.

Suit Challenges School's Refusal To Install Pavers With Biblical Verses

The Desert Sands (CA) Unified School District Board in late 2009 approved a PTO fundraiser. Parents, community members and students were given the opportunity to purchase bricks and benches that would be placed permanently on the new Palm Desert High School campus. Purchasers were allowed to have brick pavers they purchased engraved with a message of their choice. However the school refused to install pavers from two donors who had Bible verses inscribed on theirs. Last Thursday the two donors filed a lawsuit challenging the refusal. The complaint (full text) in Hart v. Tomack, (CD CA, filed 1/20/2010) claims that the denial amounts to unconstitutional viewpoint-based discrimination in a designated public forum. It also alleges that the school's policy amounts to an unconstitutional prior restraint because it delegates to school officials unbridled discretion to reject religious speech by community members. It also alleges equal protection, free exercise, establishment clause and due process violations. Alliance Defense Fund issued a release announcing the filing of the lawsuit.

Supreme Court OK's Suits Under Title VII For Retaliation Against 3rd Parties

In Thompson v. North American Stainless, LP, (US Sup. Ct., Jan. 24, 2011), the U.S. Supreme Court held that Title VII of the 1964 Civil Rights Act allows suit by a third party who was the victim of retaliation because someone else-- here plaintiff's fiancee-- filed an anti-discrimination claim. While this case involved a sex discrimination claim, the holding would also apply to employer retaliation against a third-party employee based on the filing of religious discrimination charges. (CNN reports on the decision.)

ADL Has Become Leading Defender of Mosque Construction Projects

According to a report yesterday by CNN, the Anti-Defamation League over the last few months has become a leading advocate supporting mosque construction projects around the country against local opposition.  Generally it has invoked RLUIPA to support mosque zoning applications.  The role has surprised some because of the high profile, and much criticized, opposition by the ADL last July to the proposed construction of a mosque and Islamic Center near Ground Zero in New York City. (See prior posting.)  However last September the ADL launched the Interfaith Coalition on Mosques. Last week the ADL wrote a letter, supported by the Coalition, to the mayor and city council of Temecula, California supporting construction of a 25,000 square foot mosque project there that is to be voted on today. The Coalition, however, is itself controversial. Last Friday, the president of the Southern Baptist Convention's Ethics and Religious Liberty Committee, Richard Land, withdrew from the interfaith Coalition, explaining: “While many Southern Baptists share my deep commitment to religious freedom and the right of Muslims to have places of worship, they also feel that a Southern Baptist denominational leader filing suit to allow individual mosques to be built is 'a bridge too far'." The Christian Post reports further on Land's withdrawal.

Recent Articles of Interest

From SSRN:

• Christopher McCrudden, Religion and Education in Northern Ireland, (Oxford Legal Studies Research Paper No. 2/2011, Jan. 16, 2011).
• Jayeel Cornelio, Being Catholic as Reflexive Spirituality: The Case of Religiously Involved Filipino Students, (Asia Research Institute Working Paper No. 146, Jan. 20, 2011).
• Sayani Mitra, Cast System and Social Reform in India, (January 17, 2011).
• David B. Cruz, The Defense of Marriage Act and Uncategorical Federalism, (William and Mary Bill of Rights, Vol. 19, March 2011).
• Lorin C. Geitner, The ‘Next Friends’ Suit: Mary Baker Eddy and The Church of Christ Scientist, on Trial, (Sacred History Magazine, 2010).
• Lorin C. Geitner, Merry Season’s Controversy, (Orange County Lawyer, Forthcoming).
• Lorin C. Geitner, Law and Religion – the First Amendment and the Problems of Alienation, (Orange County Lawyer, Forthcoming).
  

From SmartCILP:

• Bruce Ledewitz, Seeking 'Common Ground:' A Secular Statement, 38 Hastings Constitutional Law Quarterly 49-90 (2010).

Texas County Puts Donated 10 Commandments Monument On Courthouse Square

The Oldham County Texas commission last year approved residents placing a Ten Commandments monument on Courthouse Square, so long as county funds were not spent on it. The Amarillo Globe-News yesterday reported that a 4-ton granite monument is now in place, positioned so it is surrounded by three historical markers-- honoring the senator for whom the county is named, the county's first physician and Old Tascosa. Churches and individuals in Oldham County donated $11,000 to cover the cost of the monument. An inscription on the monument reads in part: "Dedicated to our loving Lord God, our founding fathers and our great nation ... Donated by the people of Oldham County." Oldham County Judge Don Allred says of the monument: It fits our community values."

British Government Spends Large Amounts Studying Anti-Discrimination Compliance

Last year, the British Parliament passed the Equality Act 2010, replacing nine separate anti-discrimination laws that previously existed. The London Mail yesterday reported that government departments and other public bodies have spent large amounts on studies to promote and assure compliance with the new law. Among the studies highlighted by the paper's report is an impact assessment to ensure that minority groups are able to take full part in the Queen's Diamond Jubilee celebrations next summer; a government study of the impact of India's traditional caste system on discrimination in the UK; and a report on how changes in programs to help the disabled find jobs will impact issues such as religion and gender reassignment.

U.S. Catholic Bishops Support Amendment, Not Repeal, of Health Care Law; Release Other Policy Priorities

In a press release last week, the U.S. Conference of Catholic Bishops announced that it will not support total repeal of last year's health care reform bill. Instead, according to a letter it sent to members of the House of Representatives, it will seek action by Congress to amend the law to ensure access to quality, affordable, life-giving health care for all; to retain requirements that effectively protect conscience rights and that prohibit use of federal funds for elective abortion or for insurance plans that include them. Finally it will seek to protect immigrants' access to health care and to remove current barriers to access.  Last year while the health care bill was pending, the bishops urged defeat of it because of their belief that limits on abortion funding did not go far enough. (See prior posting.)

In a long letter to all members of Congress (text included in press release), the bishops also outlined their other legislative priorities for the new Congress. These include protecting the unborn; supporting traditional marriage; seeking budget, tax and entitlement policies that protect the poor and vulnerable; funding for private schools; empowering faith-based groups; assuring equal access to the Internet; immigration reform; and various international initiatives to end conflicts, protect religious freedom and provide aid.

Episcopal Church Awarded Fort Worth Diocese Property

The Episcopal Church (TEC) has successfully asserted a claim to the property of a Texas diocese that broke away to affiliate with the more conservative Anglican Province of the Southern Cone.  In The Episcopal Church v. Salazar, (TX Dist. Ct., Jan. 20, 2011), a Texas state trial court held that property of the Diocese of Fort Worth belongs to the individuals who remain loyal to the hierarchical church body. It ordered defendants to turn the property over to TEC within 60 days, along with an accounting of all Diocesan assets. The court also ordered defendants to stop holding themselves out as leaders of the Diocese, and called for the parties to submit a more detailed declaratory order within ten days. (The order issued last week, apparently drafted by plaintiffs, includes paragraphs crossed out by the court before it was signed.)  The break-away group under the leadership Bishop Jack Iker issued a statement announcing it will appeal the ruling. Episcopal News Service and the Ft. Worth Star-Telegram report on the court's decision. (See prior related posting.) [Thanks to John Chilton for the lead.]

Shi'ite Congregation Sues Georgia Town Over Zoning Refusal

Yesterday's Atlanta Journal Constitution reports on a lawsuit filed by the Dar-E-Abbas Shi'ite Muslim congregation against the city of Lilburn, Georgia in a zoning dispute.  Plaintiffs want the city to rezone four acres adjacent to its current site so it can build a 20,000 square foot mosque and a 200-car parking lot. City council has refused citing traffic and drainage problems. This follows a refusal in 2009 of a more extensive plan that included a cemetery. Plaintiffs claim they are being treated more harshly than requests from other religious groups would be.

San Antonio Archdiocese Settles Sexual Assault Claim

The Archdiocese of San Antonio (TX) announced on Friday that it has settled a lawsuit involving charges of sexual assault by a priest, Father John M. Fiala.  The case was settled for $946,000, paid by the Archdiocese's insurers. According to a report on the settlement by the San Antonio Express-News, Fiala was indicted on six counts of sexually assaulting the teen at gun point, and subsequently arrested on a charge of attempting to hire a hit man to kill him.  The lawsuit also named Fiala's religious order, the Society of Our Lady of the Most Holy Trinity; the Diocese of Corpus Christi; and the Archdiocese of Omaha. The Archdiocese of San Antonio apparently received a false letter Fiala's religious order indicating no sex abuse claims when it hired Fiala. A trial involving these remaining defendants is scheduled for August.

Recent Prisoner Free Exercise Cases

In Mauwee v. Donat, (9th Cir., Dec. 22, 2010), the 9th Circuit held that monetary damages are not available under RLUIPA against the Nevada Department of Corrections or officials acting in their official capacity. It also held that an inmate's free exercise claims are moot.

In Hatzfeld v. Eagen, 2011 U.S. Dist. LEXIS 3914 (ND NY, Jan. 14, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 139758, Dec. 10, 2010) and dismissed an atheist inmate's claim that he was denied treatment for hepatitis when he refused to participate in a religious-based substance abuse treatment program. The court found that a secular treatment program was available to plaintiff.

In Porter v. Beard, 2011 U.S. Dist. LEXIS 3966 (WD PA, Jan. 14, 2011), a Pennsylvania federal district court refused to grant a Native American inmate a preliminary injunction. Plaintiff claimed he has not been provided replacement materials for a religious medicine bag that was thrown away by a corrections officer. But the court concluded he had been but had refused it because it was being delivered by a chaplain who was not a Native American.  The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 139770, Aug. 12, 2010.

In Davis v. Flores, 2011 U.S. Dist. LEXIS 4417 (ED CA, Jan. 14, 2011), a California federal district court dismissed free exercise and RLUIPA challenges by a Muslim inmate who objected to a prison rule that limited use of prayer oils to the chapel and did not permit possession of them in cells.

In Rincon v. Wells, 2011 U.S. Dist. LEXIS 5199 (SD GA, Jan. 20, 2011), a Muslim inmate filed a habeas petition challenging loss of good conduct time imposed because he participated in a group boycott of religious meals. A Georgia federal magistrate judge recommended dismissal of plaintiff's free exercise, equal protection and related claims because they cannot be raised by way of habeas corpus, for failure to exhaust administrative remedies and because of lack of support on the merits for his equal protection claim.

In Walton v. Hixson, 2011 U.S. Dist. LEXIS 4944 (ED CA, Jan. 19, 2011), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that his free exercise rights and rights under RLUIPA were violated when a corrections officer on one occasion interrupted his prayers and another time caused him to miss his morning prayers.

In Kalwasinski v. Maxymillian, 2011 U.S. Dist. LEXIS 5226  (ND NY, Jan. 20, 2011), a New York federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 140064, Dec. 22, 2010) relating to various claims of a Muslim inmate at a psychiatric center. The court dismissed plaintiff's objections to the bowls and utensils used and his objections to the serving of fish on Fridays. Plaintiff was allowed to proceed on claims regarding the lack of Al Jumu'ah services and a Halal menu; requirements that he attend classes on Fridays and denial of sacred foods on holidays.

In Criswell v. Salisbury, 2011 U.S. Dist. LEXIS 5031 (D RI, Jan. 18, 2011), a Rhode Island federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140102, Dec. 14, 2010) and dismissed a Muslim inmate's claim that his mail was denied or delayed because of its religious content.

In Birdwell v. Martel, 2011 U.S. Dist. LEXIS 4932 (ED CA, Jan. 18, 2011), a California federal magistrate judge recommended rejecting an Asatru/Odinist inmate's habeas corpus petition, concluding that a state court had not acted unreasonably in rejecting his claim that his parole was denied because of his refusal to participate in a religious based 12-step program.

Court Rejects Establishment Clause Challenge To Forest Service's Access Plan

Fortune v. Thompson, 2011 U.S. Dist. LEXIS 5343 (D MT, Jan. 20, 2011), involves a challenge to the U.S. Forest Service's adoption of a plan that limits motorized access on a portion of the Lewis and Clark National Forest. In upholding the plan, a Montana federal district court rejected an Establishment Clause claim by opponents of the plan who argued that the purpose of the plan was to favor Native American religion. The court said:

Even if the Forest Service's consideration and decision were enacted in part to mitigate interference with the Blackfeet's religious practices, this objective alone does not signify a constitutional violation.

The court also rejected the argument that the effect of the plan was to create "a cathedral for the Blackfeet religion."

Church Loses Challenge To County Zoning Ordinances

In McGuire v. Clackamas County Counsel, 2011 U.S. Dist. LEXIS 5521 (D OR, Jan. 19, 2011), an Oregon federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140026, Nov. 10, 2010), and dismissed a free exercise challenge to the zoning laws of Clackamas County, Oregon. The county insisted that the provision of services to the homeless, such as car and home repair assistance, and allowing the homeless to split wood and sell it, qualified the Assembly Church as a business so that the Church needed to obtain a permit and comply with a zoning ordinances. Plaintiffs argued unsuccessfully that they formed the Church as a "closed church" with the intent that they would receive no benefits from the government and, in turn, would not be contacted by, or be subject to the control of, the government.

Plan For School District To Absorb Religious Special Education School Is Controversial

In Rockland County, New York, controversy surrounds a proposal for the East Ramapo Central School District to take over the now private religious Rockland Institute for Special Education ("RISE") that educates 70 bi-lingual Yiddish or Hebrew speaking special education students. Earlier this week, both The Forward and Yeshiva World News reported on the situation in the district where controversy has brewed for months over other issues  in which proponents of public schools claim that the district school board, a majority of whose members are Orthodox Jews, has favored Jewish private schools in the area. The director of RISE has written her staff saying: "The district is trying to protect the program and the staff from the anti-Semites and those who will try to prove this merger is unconstitutional. The district people assure me, they have checked everything with lawyers and it is 100% legal. But there are those who will probably fight it."  Apparently no religious subjects will be taught during the regular school day, but privately-financed religious programs before and after school are planned.Opponents say the proposal is merely a bail-out of a failed religious institution and will segregate students.  A vote originally scheduled for earlier this week has now been postponed until the Feb. 2 school board meeting.

Virginia County's Schools Restore 10 Commandments Displays

In Giles County, Virginia, the Giles County School Board voted unanimously on Thursday to re-hang 4-foot tall copies of the Ten Commandments in the district's 5 schools and its technology center. AP reports that last December the Ten Commandments, which had hung in the schools next to a copy of the Constitution for at least ten years, were replaced by a copy of the Declaration of Independence. The move came after a complaint by the Freedom from Religion Foundation and an opinion by the school board's attorney that the Ten Commandments displays were unconstitutional. The school board's change of heart came after eight parents and pastors, supported by a large number of others, told the board that schools had a moral obligation to reinforce God's teachings. The Ten Commandments were back in the schools yesterday.

UPDATE: Delmarva Now reports that on Feb. 22 the Giles school board held a special meeting and voted to again remove the Ten Commandments from the schools.

Oregon Works To Acculturate Immigrant Groups In Light of Their Religious Beliefs

Today's Wall Street Journal reports at length on the efforts of Oregon authorities to deal with the religious beliefs of some 150,000 evangelical Christians from the former Soviet Union who live in the state. In 2009, Slavic Christians Oleksandr and Lyudmila Kozlov were arrested, and their seven children placed in foster care, after the oldest children called 911 to complain about physical beatings from their parents.  The parents said they were disciplining their children according to Biblical law, and that the government was trying to destroy the family because of its religious beliefs. The court eventually sentenced the parents to over seven years in prison for criminal mistreatment. Oregon's Department of Human Services has now begun to hold forums with different immigrant groups and the agencies in charge of resettling them to discuss American law as well as standards for disciplining children and spousal treatment.

Georgia School Board Votes To Keep Graduation At Church

Despite objections from Americans United for Separation of Church and State (see prior posting), a metropolitan Atlanta school board has voted unanimously to continue to hold graduation ceremonies in a local mega-church. The church charges only $2000 for use of its facilites, while secular venues would cost up to $40,000 to rent.MyFoxAtlanta and CBSAtlanta report that the Cherokee County (GA) school board voted unanimously on Thursday to keep the ceremony at First Baptist Church of Woodstock.Students particularly favored the decision, wanting to receive their diplomas at the same location their siblings had. Some parents and community members have started collecting funds to cover future legal challenges to the decision.

Utility Companies Sue Hamptons Villages Over Eruv

Following on a suit filed last week by the East End Eruv Association (EEEA) challenging as religious discrimination decisions by three municipalities in The Hamptons (NY) to prevent use of utility poles to create an eruv (see prior posting), this week two utility companies filed a federal lawsuit challenging the towns' interference with the utilities' agreement to permit EEEA to install the eruv.  An eruv permits observant Jews under religious law to carry items on the Sabbath that would otherwise be impermissible. The complaint (full text) in Verizon New York Inc. v. Village of Westhampton Beach, (ED NY, filed 1/18, 2011), alleges that the utilities are contractually obligated to permit installation of lechis (plastic or wooden strips) on utility poles to create an eruv, so long as the installation conforms to valid local laws. Plaintiffs seek a declaration that local laws being invoked to block the eruv are unenforceable. Courthouse News Service reported on the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

Challenge To DOMA's Impact on Tax Treatment of Long Term Care Policies Moves Ahead

In Dragovich v. U.S. Department of Treasury, (ND CA, Jan 18, 2011), a California federal district court allowed three California public employees and their same-sex spouses to proceed with a lawsuit challenging Sec. 3 of the federal Defense of Marriage Act and Sec. 7702B(f) of the Internal Revenue Code which interfere with plaintiffs' ability to participate in a state-maintained long term care insurance program.  Taken together, the challenged provisions deny favorable federal tax treatment to state employee long-term care plans that cover same-sex spouses. Finding that plaintiffs have standing to challenge the provisions, the court refused to dismiss plaintiffs' equal protection and substantive due process claims, holding:

Section three of the DOMA ...  impairs the states’ authority to define marriage, by robbing states of the power to allow same-sex civil marriages that will be recognized under federal law.... Plaintiffs have sufficiently stated a claim that section three of the DOMA bears no rational relationship to a legitimate governmental interest. The section does not preserve the status quo of the states’ authority to define marriage because it instead impairs their customary and historic authority in the realm of domestic relations.

The Silicon Valley Mercury News yesterday reported on the decision. [Thanks to Alliance Alert for the lead.]

9th Circuit: Ignorance of Religious Doctrine Does Not Support Adverse Credibility Finding In Asylum Application

In Li v. Holder, (9th Cir., Jan. 19, 2011), the 9th Circuit Court of Appeals reversed an immigration judge's denial of an asylum application by Lei Li, a citizen of China who claimed he is a Christian and that he had been persecuted and had a well-founded fear of future persecution if he returned to China.  The immigration judge's denial was based on his finding that Li failed to demonstrate credible evidence that he is a Christian.  That adverse credibility finding was based primarily on Li's answer to two questions about Christianity. First, Li thought Thanksgiving was a Christian holiday.  Second, when asked about the difference between the Old and New Testaments, Li could only respond that the Old Testament was written in Hebrew while the New Testament was written in Greek.  The 9th Circuit held that "an IJ's perception of a petitioner’s ignorance of religious doctrine is not a proper basis for an adverse credibility finding." Judge Zouhary (sitting by designation) dissented, arguing that instead of reversing the adverse credibility finding, the court should remand for clarification and, if necessary, a supplemental hearing. Courthouse News Service reports on the decision.

Groups Protest Air Force Academy's Scheduled Prayer Luncheon Speaker

Yesterday the Military Religious Freedom Foundation released a letter (full text) it has sent to the Superintendent of the U.S. Air Force Academy objecting to the Academy's scheduling of former Marine Lt. Clebe McClary as the speaker for the Academy's National Prayer Luncheon next month. McClary, a professional motivational speaker, is described by Truthout as "a retired Marine, who was wounded in Vietnam and now serves the 'Lord's Army,' and believes that USMC (US Marine Corps) will always stand for 'US Marines for Christ.'" The MMRF letter said in part:

Indeed, it is precisely that incontrovertibly explicit and prestigious institutional approval of former Lt. McClary's non-inclusive religious "message" of fundamentalist Christian triumphalism, exceptionalism and supremacy which is the gravamen of the truly disgraceful decision by the Academy to honor him as the featured speaker at its National Prayer Luncheon event.

Several other groups have sent letters to the Academy supporting the MMRF's call for rescinding the invitation to McClary.

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.]