Recent Articles of Interest

From SSRN:

US Law and Policy:

• Richard E. Redding, Without a Prayer?: Spirituality and Performance in Law School – A Reply to Professor Taylor, (California Western Law Review, Vol. 47, 2011).
• Micah Schwartzman, Conscience, Speech, and Money, (Virginia Law Review, April 2011).
• Jeffrey R. Baker, Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule, (February 4, 2011).
• Zachary R. Calo, Review of Church, State and Original Intent by Donald Drakeman, (Journal of the American Academy of Religion, Vol. 78, p. 827, 2010).
• Ali Khan, A Portfolio Theory of Foreign Affairs: U.S. Relations with the Muslim World, (Transnational Law and Contemporary Problems, Vol. 19, No. 3, 2011).

Non-US Law and Policy:

• Olubayo Oluduro, The Role of Religious Leaders in Curbing the Spread of HIV/AIDS in Nigeria, (Potchefstroom Electronic Law Journal, Vol. 13, No. 3, 2010).
• Sylvie Bacquet, Religious Freedom in a Secular Society: An Analysis of the French Approach to Manifestation of Beliefs in the Public Sphere, (January 17, 2011).
• Zachary R. Calo, Pluralism, Secularism and the European Court of Human Rights, (Journal of Law and Religion, Vol. 26, p. 101, 2010).

Religion and Human Rights:

• Werner Menski, Fuzzy Law and the Boundaries of Secularism, (Potchefstroom Electronic Law Journal, Vol. 13, No. 3, 2010).
• Steven Lubet, The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law, (North and South, Vol. 13, 2011).
• Zachary R. Calo, Religion, Human Rights and Post-Secular Legal Theory, (St. John's Law Review, Forthcoming).
• Zachary R. Calo, Human Rights and Healthy Secularity, (Journal of Catholic Social Thought, Vol. 7, No. 2, 2010).
• Zachary R. Calo, Empirical Desert and the Moral Economy of Punishment, (Arizona State Law Journal, Forthcoming).

Religion and Economics:

• Lael Daniel Weinberger, The Business Judgment Rule and Sphere Sovereignty, (Thomas M. Cooley Law Review, Vol. 27, No. 2, 2010).
• Michael J.T. McMillen, Trends in Islamic Project and Infrastructure Finance in the Middle East: Re-Emergence of the Murabaha, (February 1, 2011).

From SmartCILP:

• Keith S. Blair, Better Disabled than Devout? Why Title VII Has Failed to Provide Adequate Accommodations Against Workplace Religious Discrimination, 63 Arkansas Law Review 515-556 (2010).
• Nina J. Crimm, Might Houses of Worship Enable Currently Uninsured, Economically Disadvantaged Individuals to Obtain Affordable Health Care Insurance? [Abstract], 25 Journal of Civil Rights and Economic Development 69-79 (2010).
• Daniel Dalton, The Religious Land Use and Institutionalized Persons Act--Recent Developments, 42 Urban Lawyer 561-580 (2010).
• Pamela Harris, Pleasant Grove v. Summum and the Establishment Clause: Giving with One Hand, Taking with the Other? [Abstract], 46 Willamette Law Review 677-690 (2010).
• David R. Loy, A Different "Enlightened" Jurisprudence?, 54 St. Louis University Law Journal 1239-1256 (2010).
  

Adventists Protest Scheduled Saturday Elections In Nigeria

Nigeria's presidential election is scheduled for Saturday, April 9.  However, according to today's Nigerian Compass, the Seventh Day Adventist Church is threatening to sue if the date is not moved to a week day since the Saturday timing will disenfranchise its members. The Church has said that some 12 million Nigerians will not be able to vote if the Saturday date is retained.

Top French Constitutional Court Rejects Challenge To Ban on Same-Sex Marriage

In Mme Corinne C. et autre, (Conseil Const., Jan. 28, 2011) [in French], France's Constitutional Council held that provisions in French law barring same-sex marriage violate neither Constitutional equal protection principles,  nor the protected right to lead a normal family life. C-Fam summarized the ruling as follows:

The Council ruled last Friday that because of the difference of situations between same-sex and heterosexual couples, the difference in treatment in family laws is justified and not in violation of the principle of equality. As for the right to a normal family life, the court found that the pacte civil de solidarité, a form of civil union that accords a plethora of legal, fiscal, and official benefits, is sufficient for a "normal family life."

C-Fam also reported that France's Socialist Party plans to call for a vote in Parliament on same-sex marriage this summer and that activists may appeal this decision to the European Court of Human Rights. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases

In Ofeldt v. McDaniel, 2011 U.S. Dist. LEXIS 8661 (D NV, Jan. 19, 2011), a Nevada federal district court rejected an inmate's claim that his 1st Amendment and RLUIPA rights because the prison chapel has no Asatru materials and he is not allowed to order materials from outside.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 8875 (ED CA, Jan. 21, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's suit seeking to add his religious name to his commitment name.

In Cain v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 9393 (WD MI, Feb. 1, 2011), a Michigan federal district court approved recommendations of a magistrate judge that were filed almost three years earlier (2008 U.S. Dist. LEXIS 119146, March 31, 2008), in a lengthy opinion rejecting complaints of an inmate who was a member of the Shetaut Neterian (ancient African) religion about inadequacies in meals served to him in various Michigan prisons in light of his religious dietary needs.  In adopting the magistrate's recommendations, the court modified the report "to incorporate circuit court holdings regarding suits under the RLUIPA contained in opinions published after the report was issued."

In Cryer v. Massachusetts Department of Corrections, 2011 U.S. Dist. LEXIS 1632 (D MA, Jan. 7, 2011), a Massachusetts federal district court reconsidered an order issued in November 2010 and permitted a Native American inmate to proceed with his 1st Amendment and RLUIPA claims to the extent they are limited to seeking use of tobacco during the once-monthly smudging ceremony. The magistrate's report in the case is at Cryer v. Clarke, 2010 U.S. Dist. LEXIS 140843 (Aug. 26, 2010).

In Guzman v. Marshall, 2011 U.S. Dist. LEXIS 9214 (CD CA, Jan. 31, 2011), in a decision dealing primarily with other claims, a California federal district court held that in a habeas corpus proceeding by an inmate challenging his denial of parole, it could not consider plaintiff's Establishment Clause claim that he was required to participate in a religious based AA class because the court is limited to considering procedural complaints about the parole process.

In Love v. New Jersey Department of Corrections, 2011 U.S. Dist. LEXIS 10102 (D NJ, Jan. 31, 2011), a New Jersey federal district court dismissed most of the equal protection and free exercise claims brought by plaintiff, who had filed numerous previous lawsuits. Plaintiff complained about a long series of practices while he was in segregated confinement and after he was released into the general prison population, relating to access to Jewish worship services, Passover observance and access to his tallit and to tefillin. The court dismissed all but three narrow claims presented by plaintiff.

In Halloum v. Ryan, 2011 U.S. Dist. LEXIS 10490 (D AZ, Jan. 27, 2011), an Arizona federal district court permitted a Muslim inmate to proceed with claims that he was denied a religious shaving waiver; defendant refused to distribute a copy of the Qur'an to him; authorities failed to accommodate his fasting during Ramadan, prohibited Muslim inmates from holding communal prayer and failed to provide Muslim inmates sufficient food because of their religious practices.

Pope Speaks Out On Church-State Relations In Europe

On Thursday, Pope Benedict XVI spoke of church-state relations in Europe in receiving the new Austrian Ambassador to the Vatican. Here are some excerpts from the Pope's remarks (full text):

In many European countries, the relationship between the state and religion is facing a particular tension. On one hand, the political authorities take care not to grant public places to religions, understanding them as merely individual ideas of faith of the citizens. Sought, on the other hand, is the application of criteria of a secular public opinion to religious communities. It seems that they would like to adapt the Gospel to the culture and yet, they seek to impede, in an almost shameful way, that the culture be molded by the religious dimension.

Obama Names New Members of Faith Based Advisory Council

Yesterday President Obama announced his intent to appoint twelve individuals to President’s Advisory Council on Faith-Based and Neighborhood Partnerships. Apparently this groups replaces 15 members whose one-year terms are expiring. (See prior posting.) The new chair of the Advisory Council is Susan K. Stern, Special Advisor on Government Affairs to the American Jewish Joint Distribution Committee. Other members and their affiliations are: Leith Anderson (National Association of Evangelicals); Andrea Bazán (Triangle Community Foundation); Angela Glover (Policy Link); Brian Gallagher (United Way International); Bishop Mark Hanson (Evangelical Lutheran Church in America); Lynne Hybels (Advocate for Global Engagement at the Willow Creek Community Church); Most Rev. Dr. Katharine Jefferts Schori (Presiding Bishop of the Episcopal Church); Rabbi Julie Schonfeld (Rabbinical Assembly); Archbishop Demetrios Trakatellis (Greek Orthodox Church of America); Sister Marlene Weisenbeck (Franciscan Sisters of Perpetual Adoration); and Reverend Elder Nancy L. Wilson (Moderator for the Universal Fellowship of Metropolitan Community Churches).

School Board Changes Prayer Policy-- Uses Disclaimer

Last month, the Freedom from Religion Foundation wrote the Polk County, Florida school board threatening to sue if board members continued to open Board meetings with a prayer.  Today's Winter Haven (FL) News Chief reports that the school board, after consulting its attorney, has responded by moving the prayer to precede the official start of the meeting and adding this disclaimer to its agendas:

Voluntary invocation may be offered before the opening of the School Board meeting by a private citizen. The views or beliefs expressed in the invocation have not been reviewed nor approved by the School Board, and the Board is not allowed, by law, to endorse the religious beliefs or views of this, or any other speaker.

Break-Away Anglican Diocese Not Entitled To Episcopal Diocese Property

The Episcopal Diocese of Pittsburgh that retains affiliation with the Episcopal Church USA has won its claim to property of the Diocese following the 2008 vote by the Diocesan Convention to withdraw from the Episcopal Church and affiliate with the Anglican Province of the Southern Cone. In Calvary Episcopal Church v. Duncan, (PA Commn. Ct., Feb. 2, 2011), a Pennsylvania appellate court held that a settlement signed by the two sides before the withdrawal should be read to award the diocese property to the organization that retains affiliation with the Episcopal Church USA. The court also rejected other procedural challenges to the trial court's award of the property to the Episcopal Diocese. Yesterday's Pittsburgh Post-Gazette reports on the decision and on additional background. Ownership of property of individual parishes remains to be negotiated by the parties. (See prior related posting.)

Wilmington, Delaware Diocese Settles In Bankruptcy With Sex Abuse Claimants

A press release on Wednesday announced that the Catholic Diocese of Wilmington, Delaware has agreed to a settlement in bankruptcy court with 146 child sex abuse victims and other unsecured creditors. (See prior related posting.)  The Diocese will pay $77.4 million into a trust for sex abuse claimants. Additional claims will be pursued against three religious orders.  Plaintiffs' attorneys say they expect to recover another $80 million there.  The New York Times reports that the main disagreement has been over plaintiffs' insistence that internal Church documents on how the abuse complaints were handled be released on the Internet. The parties finally agreed that an arbitrator will decide on redactions that will be permitted before the documents are released. The Diocese will also have priests sign a statement every five years stating that they are not aware of undisclosed abuse of minors. Additionally plaques in schools will say that abuse will not be tolerated.

Groups Condemn Congressman's Criticism of Muslim Colleague

Leaders of three national religious groups on Wednesday wrote Florida U.S. House of Representatives member Allen West calling on him to apologize for saying, on a television interview show, that Minnesota U.S. House of Representatives member Kieth Ellison, a Muslim, is the "antithesis of the principles on which this country was established." Yesterday's Florida Independent, carries excerpts from the letter sent by the heads of the Interfaith Alliance, the Rabbinical Assembly, the Religion Action Center for Reform Judaism and the Baptist Joint Committee. They told West that his comments display "a frightening lack of understanding" of the values of Islam. West immediately responded by letter, saying: "My comments in regards to my colleague, Representative Keith Ellison, are not about his Islamic faith, but about his continued support of CAIR," an organization which West claims supports the radical jihadist movement.

Pakistani Student Charged With Blasphemy For Remarks on Exam Paper

Yet another blasphemy arrest in Pakistan is drawing international criticism.  Human Rights Watch this week urged the Pakistani government to drop blasphemy charges and release from detention a 17-year old student who was charged with blasphemy for remarks he included last April on his school exam paper.  Muhammad Samiullah was sent to a juvenile prison last week pending trial after a complaint was filed by the chief controller of the intermediate level education board. Police will not disclose exactly what was written on the exam paper, saying that doing so would itself amount to blasphemy.

Court In India Rejects Religion-State Challenge To State Financing of Shariah Compliant Finance Company

In India, the Kerala High Court has rejected a constitutional challenge to involvement by a state-created agency in setting up a Shariah-compliant non-bank finance company.  Qatar's Peninsula today reports that Janata Party president Subramanian Swamy sued claiming that the state was unconstitutionally promoting religion when the Kerala State Industrial Development Commission purchased 11% of the equity in Al Barakh Financial Services Ltd.  The court dismissed Swamy's petition. Sec. 26 of India's Constitution bars appropriating tax funds to promote religion.

Poll Surveys Americans' Attitudes Toward Influence of Religion In U.S.

Gallup this week released the results of a January poll asking adults in the U.S. about their views on the influence of religion in the nation.  29% believed religion should have more influence and an identical 29% believed it should have less influence.  39% believe religion should keep its influence as it is now.  The same poll found that 58% of those surveyed were satisfied with the influence of organized religion in America today, while 36% were dissatisfied.

Obama Speaks of His Personal Christian Faith At National Prayer Breakfast

President Obama today spoke at the National Prayer Breakfast in Washington, focusing on his personal Christian beliefs. (Full text of remarks.)  Last August, a national poll indicated that many Americans mistakenly believe that Obama is Muslim. (See prior posting.)  Here are some excerpts from the president's speech (which contained lighter, more humorous moments as well):

This may come as a surprise, for as some of you know, I did not come from a particularly religious family. My father, who I barely knew - I only met once for a month in my entire life - was said to be a non-believer throughout his life.

My mother, whose parents were Baptist and Methodist, grew up with a certain skepticism about organized religion, and she usually only took me to church on Easter and Christmas - sometimes. And yet my mother was also one of the most spiritual people that I ever knew....

And it’s because of her that I came to understand the equal worth of all men and all women, and the imperatives of an ethical life and the necessity to act on your beliefs.... [M]y earliest inspirations for a life of service ended up being the faith leaders of the civil rights movement.

There was, of course, Martin Luther King and the Baptist leaders.... But there were also Catholic leaders like Father Theodore Heshburg, and Jewish leaders like Rabbi Abraham Joshua Heschel, Muslim leaders and Hindu leaders. Their call to fix what was broken in our world, a call rooted in faith, is what led me just a few years out of college to sign up as a community organizer for a group of churches on the Southside of Chicago. And it was through that experience working with pastors and laypeople trying to heal the wounds of hurting neighborhoods that I came to know Jesus Christ for myself and embrace Him as my lord and savior....

When I wake in the morning, I wait on the Lord, and I ask Him to give me the strength to do right by our country and its people. And when I go to bed at night I wait on the Lord, and I ask Him to forgive me my sins, and look after my family and the American people, and make me an instrument of His will.

The Washington Post reported Obama's remarks as well as those of astronaut Mark Kelly, husband of the wounded Rep. Gabrielle Giffords. Kelly spoke briefly at the Prayer Breakfast and offered the closing prayer.

6th Circuit: Judge's 10 Commandments Poster Violates Establishment Clause

In ACLU of Ohio Foundation, Inc. v. DeWeese, (6th Cir., Feb. 2, 2011), the U.S. 6th Circuit Court of Appeals held that a Ten Commandments display posted in a courtroom by a state common pleas court judge violates the Establishment Clause.  At issue were two posters hung by Judge James DeWeese-- one setting out the Bill of Rights and the other which compares the "Moral Absolutes" of the Ten Commandments with ten parallel principles of "Moral Relatives: Humanist Principles." Finding first that plaintiff has standing, the court held that any purported secular purpose put forward by defendant was a sham. The court, analyzing the poster's contents, also concluded that the poster:

sets forth overt religious messages and religious endorsements. It is a display of the Ten Commandments editorialized by Defendant, a judge in an Ohio state court, exhorting a return to "moral absolutes" which Defendant himself defines as the principles of the "God of the Bible." The poster is an explicit endorsement of religion by Defendant in contravention of the Establishment Clause.

Finally the court concluded that Judge DeWeese had no free expression defense since the posters are government speech, not private judicial speech. The Christian Post reports on the decision.

Judgment On Russian Jewish Library Threatens Loans of Paintings To U.S. Museums

As previously reported, last year the D.C. federal district court entered a default judgment against the Russian Federation ordering it to return two collections of valuable religious books and manuscripts to Agudas Chasidei Chabad. Russia refused to participate in the proceedings claiming that U.S. courts lack authority to enter orders with respect to property in Russia owned by the Russian government. (See prior posting.) Yesterday the New York Times reported that last year's default judgment against Russia is leading to cancellation of promised loans of art from Russian museums to those in the U.S. for several upcoming art shows.  Russian cultural officials are telling Russian state-owned museums that they risk their artwork being seized in the U.S. to enforce the court order regarding Chabad's book collections. U.S. authorities are trying to convince the Russians that U.S. law (22 USC Sec. 2249) grants immunity from judicial process for artwork on loan from foreign countries.

Debate In Kyrgyzstan On Prayer Time For Parliament Members and State Employees

Eurasianet yesterday reported on a debate in Kyrgyzstan on the issue of separation of state and religion.  At the end of last year, several members of Parliament suggested that an extended break be provided on Fridays for members of Parliament as well as other state employees to pray. Some also suggested setting up a prayer room in the Parliament building. Opponents however say that the proposal undermines the concept of secularism guaranteed by Kyrgyzstan's constitution. The head of the Bishkek Women's Center, a citizens' rights group, complains that members of Parliament "are mainly concerned with using public money to create places for their own personal salvation."

Faith Healing Parents Get 10 Years Probation For Involuntary Manslaughter

In Philadelphia (PA), according to an AP report yesterday, Herbert and Catherine Schaible who were convicted last year of involuntary manslaughter in the death of their 2-year old son from pneumonia were sentenced to ten years probation. During that time, the parents, who have been described as pillars of their community, must seek routine and emergency medical care for their seven children.  The couple, members of the First Century Gospel Church, believe that seeking medical treatment evidences a lack of faith in God.  Common Pleas judge Carolyn Engel Temin told the couple that the welfare of the child is more important that the parents' religious freedom. (See prior related posting.)

Pakistani Court Imposes Death Sentence For Blasphemy Against Companions of the Prophet Muhammad

One India News reports that in Pakistan's Punjab province yesterday, a court has invoked the country's controversial blasphemy law to impose a death sentence on Muhammad Rafiq for committing blasphemy against the companions of the Prophet Muhammad. Rafiq, who lives in Jalalpur Peerwala, was seen by local residents wearing a wooden slab around his neck on which were written the offending remarks about the Sahaba Ikrams. Rafiq was also ordered to pay a fine of Rs 200,000 ($2337 US). After he was arrested, Rafiq was moved from the local police station to a prison in Bahawalpur to prevent a mob from lynching him.

Suit Challenges School's Ban On Religious Songs From Talent Show

A lawsuit was filed in federal district court in Los Angeles last week on behalf of a 5th-grade student challenging Superior Street Elementary School's school's policy of barring acts with religious messages from the school's annual talent show sponsored by the PTA. The complaint (full text) in B.H. v. Garcia, (CD CA, filed 1/28/2011), alleges that the school told the student that his interpretive movement to the religious song "We Shine" was not permitted because of the song's religious message. The principal suggested that the student select a song that does not mention Jesus so many times.  The suit seeks a declaratory judgment that the school's policy violates the free speech, free exercise and establishment clauses of the 1st Amendment as well as the 14th Amendment's equal protection clause and seeks temporary or permanent injunctive relief so the student can perform in this week's show. Alliance Defense Fund issued a press release announcing filing of the lawsuit.

UPDATE: ADF announced on Feb. 2 that after the filing of the lawsuit, the Los Angeles Unified School District agreed that it would no longer prohibit 5th grader B.H. from performing his Christian song. ADF attorneys however will continue the lawsuit to prevent future applications of the same policy.

Government Representatives, Including Many Muslims, Visit Auschwitz In Bid To Counter Holocaust Denial

In a trip to Poland organized by UNESCO, the Mayor of Paris and the Aladdin Project, 150 representatives of 40 governments yesterday visited Auschwitz-Birkenau, the largest Nazi death camp, in a move designed to counter Holocaust denial, educate about the Holocaust and battle anti-Semitism. The mission included a large delegation from a number of Muslim countries. Among those attending was Karim Lahidji, the head of the Iranian League of Human Rights. Iran's president has been a leading Holocaust denier. AP and the UN News Centre both report on the trip.

Woman Pleads Guilty In Plot To Kill Swedish Cartoonist

In a press release yesterday, the Justice Department announced that Colleen LaRose, also known as "Jihad Jane", has entered a guilty plea in a Pennsylvania federal district court to an indictment charging conspiracy to provide material support to terrorists, conspiracy to kill in a foreign country, making false statements and attempted identity theft. As reported by CNN, LaRose was allegedly part of a plot to kill Swedish cartoonist Lars Vilks who in 2007 angered Muslims with his cartoon showing the Prophet Muhammad's head on the body of a dog. Her plea was a change from the not guilty plea entered earlier. She faces a maximum potential sentence of life in prison and a $1 million fine. (See prior related posting.)

Virginia House OKs Proposed Amendments On Prayer and Funding for Military Chaplains

The Virginia House of Representatives yesterday passed two proposed state constitutional amendments dealing with religion.  HJ 593, which passed the House by a vote of 61-33 (with one abstention), would bar state infringement of "the people's right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including public schools..."  HJ 614, passed by a vote of  62-32 (with one abstention), would allow the state legislature to provide for loans and grants to students attending theological schools and seminaries in Virginia if the student is an approved candidate for the chaplaincy in any branch of the armed services (including the National Guard). NENC reporting on the bills says that they "face a more critical reception in the Senate, where similar measures routinely die."

MRFF and Air Force Academy Faculty Members Sue Over Planned Prayer Luncheon

The Military Religious Freedom Foundation and five US Air Force Academy faculty members yesterday filed suit in federal district court in Colorado seeking to enjoin a National Prayer Luncheon at the Academy scheduled for Feb. 10.  The luncheon is being financed by the Chapel Tithes and Offerings Fund, not taxpayer money, but plaintiffs object to its promotion by the command structure. Attendance is not mandatory. While the luncheon will feature readings by participants of numerous faiths, the keynote speaker is a retired Marine Christian evangelist Clebe McClary. (See prior posting.) The complaint (full text) in Mullin v. Gould, (D CO, filed 1/31/2011) asserts that the planned event violates the Establishment Clause by favoring religion or irreligion, and through the Christian keynote speaker favors Christianity over other religions. It asserts: "The promotion ... of religion in this fashion has an inherently coercive effect upon subordinates or non-believers to fear that their failure to believe as the Defendant commander believes may reasonably be expected to cause career damage to them." Four of the five faculty member plaintiffs filed the suit as "John Does," alleging that they fear serious negative career consequences if identified. Plaintiffs also filed a motion for preliminary injunction and a brief in support of the motion. MMRF announced the lawsuit in a press release, and AP reports on the filing of the suit.

Michigan School District Will Allow Kirpans

Yesterday's Detroit Free Press reports that the Plymouth-Canton, Michigan school district has reversed a ban imposed in December and will now allow Sikh students to wear a kirpan in school, so long as the Sikh ceremonial dagger meets certain conditions. The kirpan must be sewn inside a sheath so that the blade cannot be removed, and must be worn inside the student's clothing.  The kirpan blade may not be more than two and one-fourth inches long and must be dull. [Thanks to Don Byrd for the lead.]

Nepal Court Orders Government To Stay Action Against Hindu Temple Treasury Pending Resolution of Lawsuit

A single -judge panel of Nepal's Supreme Court yesterday ordered the government's culture ministry to take no further action regarding the assets of one of the oldest Hindu temples in the country pending resolution of a challenge to the government's order for the temple to disclose the assets.  Sify News reports that a committee of the culture ministry that was formed to examine the assets of temples ordered Pashupatinath Temple to reveal its now secret assets so they can be sent to banks and museums for safekeeping.  A Hindu activist who brought the court challenge says he is not opposed to protecting the temple's assets, but it should be done by a new law and not by the current interim government.

Required Disclaimer By Pro-Life Pregnancy Centers Violates Free Speech Protections

In Archbishop Edwin F. O'Brien v. Mayor and City Council of Baltimore, (D MD, Jan. 28, 2011), a Maryland federal district court struck down as a violation of free expression a Baltimore ordinance requiring various disclosures by limited-service pregnancy centers.  Under the ordinance, any facility providing pregnancy-related services, but which does not provide or refer for abortions or certain kinds of birth control, must post a sign in its waiting room notifying patients of that fact. Finding that the ordinance regulates protected non-commercial speech and is based at least in part on disagreement with the viewpoint of the speaker, the court held that a strict scrutiny standard applies in reviewing the ordinance. It concluded that the requirement to post a disclaimer is not the least restrictive means of combating the city's concern over false or misleading advertising by pregnancy centers. The suit was brought by the Greater Baltimore Center for Pregnancy Concerns that operates in rent-free space provided by the Catholic archdiocese. AP via First Amendment Center reports on the decision.

In Britain, Parliament May Retaliate If Church Refuses To Ordain Women Bishops

In England, legislative changes to permit the ordination of women as bishops in the Church of England is slowly proceeding.  In July, the Church's General Synod approved the proposal and referred it to diocesan synods. If a majority of them approve the measure, it returns to the General Synod where it will require a two-thirds majority in each house (laity and clergy and bishops) to pass. This should occur in about 18 months. Then the measure must be approved by the British Parliament. (Background.) However the London Telegraph yesterday reported that opponents of the change think their chances of defeating the measure when it comes back to the General Synod are increasing.  To counter this possibility, a cross-party group of members of Parliament today will call on Parliament to remove the Church of England's exemption from British equality laws if the measure to ordain women bishops is not approved by the Church. (See prior related posting.)

Muslim Brotherhood Not Pressing Its Religious Agenda In Current Egyptian Crisis; Others Call for Liberalization

Ya Libnan reported yesterday that Egypt's Muslim Brotherhood is subordinating its religious goals to the effort to achieve democratic elections in the country. In that effort, they are backing Mohamed ElBaradei as the lead spokesman for negotiating political reforms on behalf of the various opposition groups.  Middle East analysts disagree over whether the Brotherhood should be seen as an extremist group, or as one having a more moderate theological agenda.

Meanwhile, Asia News reports that last week some 20 intellectuals and theologian from Al Azhar published a a statement titled "Document for the Renewal of Religious Discourse" which calls for dramatic liberalization of Islamic doctrine in Egypt. (Full text is included in the Asia News article.)

Recent Articles and Books of Interest

From SSRN:

• Mike Madden, Second Among Equals? Understanding the Short Shrift that Freedom of Religion is Receiving in Canadian Jurisprudence, (Journal of Law and Equality, Vol. 7, No. 1, pp. 55-86, 2011).
• Lucia Ann Silecchia, Reflections on the Link between Faith and Intellect, (CUA Columbus School of Law Legal Studies Research Paper No. 2011-2, Jan. 18, 2011).
• Faisal Kutty, The Myth and Reality of 'Shari'a' Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings, (University of St. Thomas Law Journal, Vol. 7, 2010).
• Brian Leiter, The Law of Religious Liberty in a Tolerant Society, (January 25, 2011).
• Mark Rienzi, The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers, (January 27, 2011).
• Gregory Brazeal, Webs of Faith as a Source of Reasonable Disagreement, (January 1, 2011).
• Michael C. Dorf, Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings, Cornell Legal Studies Research Paper No. 11-03, Jan. 28, 2011).
• Wilson Ray Huhn, A Higher Law: Abraham Lincoln's Use of Biblical Imagery, (U of Akron Legal Studies Research Paper No. 11-1, Jan. 24, 2011).

Recent Books:

• Ekmeleddin Ihsanoglu, The Islamic World in the New Century: The Organisation of Islamic Conference, 1969-2009, (Columbia Univ. Press, Nov. 2010), reviewed in Today's Zaman.
• S. Sayyid and AbdoolKarim Vakil (eds.), Thinking Through Islamophobia: Global Perspectives, (Columbia Univ. Press, Feb. 2011).
• John M. Owen IV and J. Judd Owen (eds.), Religion, the Enlightenment, and the New Global Order, (Columbia Univ. Press, Feb. 2011).
• American Foreign Policy Council, The World Almanac of Islamism 2010, (Rowman & Littlefield, Jan. 2011).

Religious Marriage Ceremony Alone Does Not Create "De Facto" Marriage In Kentucky

In Pinkhasov v. Petocz, (KY Ct. App., Jan. 28, 2011), the Kentucky Court of Appeals held that a marriage solemnized religiously without the parties obtaining a civil marriage license is not legally valid and will not, in light of the state's refusal to recognized common law marriages, be recognized as a "de facto" marriage.  The parties, neither of whom were U.S. citizens, were married in Kentucky in a Jewish religious ceremony after Anna Petocz became pregnant. However both parties insisted that no marriage license be obtained or filed "based upon immigration concerns and a need to remain legally free to marry American citizens for the purpose of applying for citizenship."  While the parties held themselves out as husband and wife to their Jewish congregation and community, Petocz scrupulously avoided doing so on documents such as tax returns, passport application, apartment application and mental health records. Two years later, Petocz filed an action to dissolve the marriage. Daniel Pinkhasov moved to dismiss and urged the court to rule only on the issues of custody and child support.  The Court of Appeals decision supports Pinkhasov's position.

Recent Prisoner Free Exercise Cases

In Diaz-Morales v. Wells, 2011 U.S. Dist. LEXIS 6208 (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 Hallford v. California Department of Corrections, 2011 U.S. Dist. LEXIS 5984 (ED CA, Jan. 20, 2011), a California federal magistrate judge recommended dismissing an action by a Buddhist inmate complaining of a two-year delay in being approved to receive a religiously required vegetarian diet. The court found that none of the three defendants was sufficiently involved in the claimed deprivation to be liable.

In McDaniels v. Sherman, 2011 U.S. Dist. LEXIS 6365 (WD WA, Jan. 21, 2011), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140316, Sept. 28, 2010) and dismissed a number of claims by Nation of Islam inmates regarding participation in Ramadan meals and forcing plaintiffs to participate in "orthodox" Muslim services. All but one claim was dismissed for failure to exhaust administrative remedies. The claim regarding denial of attendance at the 2009 Eid was dismissed on the merits.

In Kynwulf v. Sheets, 2011 U.S. Dist. LEXIS 6861 (SD OH, Jan. 25, 2011), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140403, Dec. 9, 2010) and dismissed claims by a prisoner of the Asatru faith that he was kept in administrative detention for 3 weeks and berated about his faith in retaliation for his participation in lawsuits seeking accommodation of Asatru practices.

In Mubashshir v. Moore, 2011 U.S. Dist. LEXIS 6917 (ND OH, Jan. 25, 2011), an Ohio federal district court dismissed a Muslim inmate's complaint that prison officials failed to provide him regular nutritious meals consistent with his religious beliefs.

In Allah v. Virginia, 2011 U.S. Dist. LEXIS 6979 (D VA, Jan. 24, 2011), a Virginia federal district court rejected the state's claim that plaintiff failed to exhaust his administrative remedies before suing to obtain prison recognition of Nations of Gods and Earth as a religious group.

In Ross v. Hedgepeth, 2011 U.S. Dist. LEXIS 7454 (ED CA, Jan. 26, 2011), a California federal magistrate judge permitted a Muslim inmate to proceed with his 1st Amendment and RLUIPA claims against the warden complaining about prison policy that required prayer oil to be tested before it was distributed to inmates. His equal protection and Establishment Clause claims were dismissed without prejudice.

In Klein v. Department of Corrections, 2011 U.S. Dist. LEXIS 7457 (ED WA, Jan. 20, 2011), a Washington federal district court dismissed as moot an inmate's complaint seeking a temporary restraining order to prevent him from being required to participate in the Right Living program, which plaintiff claimed was religious-based. On Dec. 31 the program was eliminated for budgetary reasons.

India's Supreme Court Upholds Haj Subsidies Against Constitutional Attack

In Goradia v. Union of India, (India Sup. Ct., Jan. 28, 2011), India's Supreme Court rejected a constitutional challenge to India's Haj Committee Act of 2002 under which the government provides air fare subsidies for Haj pilgrims.   The suit was brought by Praful Goradia, a former member of Parliament from the Hindu Bharatiya Janata Party. He argued that the subsidy violates Article 27 of the India's Constitution that provides: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in the payment of expanses for the promotion and maintenance of any particular religion or religious denomination."  The Court held that the constitutional provision is violated only where a substantial part of a tax is utilized for a particular religion. It wrote: "In our opinion, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the constitution." The Court also rejected claims that the Act violated the equal protection and anti-discrimination provisions of Articles 14 and 15 of the Constitution, pointing out that India's central government and state governments also spend money on other religions. In reaching its conclusions, the court quoted precedent from the United States Supreme Court, as well as from Australia, all suggesting that constitutional provisions should not be read too literally. Sify News reports on the decision.

British Appellate Court Says EU Employment Discrimination Directives Do Not Cover Volunteers

In an important ruling in X v. Mid Sussex Citizens Advice Bureau, (EWCA, Jan. 26, 2011), the England and Wales Court of Appeal held that volunteers are not covered by the EU directives requiring equal treatment in employment and occupation.  In a release supporting the result, the Christian Institute (which had intervened in the case) said that the decision protects churches that use volunteers from being "forced to navigate a minefield of equality laws that threaten religious liberty."

Hawaii Senators Move To Voluntary Pre-Session Prayer

Last week, the Hawaii state Senate, after receiving a complaint from the ACLU voted to end the practice of opening Senate sessions with a prayer. (AP 1/21). However, on Wednesday a group of nine Senators held hands, bowed their heads and prayed on the Senate chamber floor before the day's legislative session formally convened. According to the AP, Senate president Shan Tsutsui supported the right of the senators to do this, saying it is a matter of free speech.

US Calls For Afghanistan To Release Two Facing Possible Death Penalty For Apostasy

The Wall Street Journal yesterday reported that the U.S. government, along with some international Christian organizations, is calling on the government of Afghanistan to release two men who have been arrested on apostasy charges and could face the death penalty. Said Musa, a physical therapist, converted from Islam to Christianity nine years ago. He has worked for 15 years for the International Committee of the Red Cross. Shoaib Assadullah Musawi was arrested in November in northern Afghanistan after giving a copy of the New Testament to a friend who reported him.  A spokesperson for the U.S. Embassy in Kabul says that the U.S. has called on Afghanistan to respect the Universal Declaration of Human Rights and continues frequently to call for release of the men. However the chief of staff of Afghanistan's Justice Ministry says that there are no exceptions to the death penalty for apostasy and that the sentence is needed to serve as a lesson for others.

Bill Would Create Special Envoy for Religious Minorities in Near East and South Central Asia

Rep. Frank Wolf (R-VA) announced this week that he, along with 7 co-sponsors, has introduced H.R. 440, a bipartisan bill to provide for the establishment of the Special State Department Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. In introducing the bill, Wolf emphasized recent attacks on and arrests of Christians in countries such as Afghanistan, Pakistan, Iraq and Egypt. He also pointed out that other religious minorities in the region-- such as the Ahmadis, Baha’is, Zoroastrians and Jews-- are under pressure as well. He added:

In the wake of these devastating attacks on religious freedom, which in some cases are so severe that they literally threaten to wipe these ancient indigenous communities from the lands they've inhabited for centuries, it is clear that more must be done. Sadly, against the backdrop of these attacks, the post of Ambassador-at-Large for International Religious Freedom at the State Department has been vacant for two years.

Suit Charges Religious Discrimination In Closing of Facebook Account

Wednesday's New York Daily News reports on a lawsuit filed in a New York state trial court by a Staten Island man accusing Facebook, among other things, of religious discrimination in closing down his account. Mustafa Fteja, an Albanian Muslim who has lived in the U.S. for 17 years, says that his Facebook account was disabled without explanation and that he received only automated responses from Facebook when he inquired about the situation. The suit asks for $500,000 in damages and restoration of Fteja's personal privileges on Facebook.

Federal Court Suit Challenges School's Teaching of Evolution

Earlier this month, a former Pennsylvania high school teacher filed an action pro se challenging the teacing of evolution by the Blue Mountain, Pennsylvania school district.  The complaint (full text) in Ritter v. Blue Mt. School District, (MD PA, filed 1/18/2011), alleges teaching that the only explanation for life is evolution (without the possibility of a Creator) amounts to the promoting of Atheism, which in turn amounts to teaching of a religion.  Plaintiff objects to paying taxes to support the school district and asks the court to find that "the Blue Mt. School District is an illegal body so long as it teaches Atheism, and thus is not entitled to pursue any further actions." Plaintiff also filed a "Brief" in support of his complaint and a copy of his school district  tax bill along with a document arguing that evolution is unscientific.  In a press release yesterday announcing the filing of the case, plaintiff added that the court in which the suit has been filed is the "same district that rendered the infamous Kitzmiller decision in 2005."

Magistrate Rejects Preliminary Injunction Request for Jehovah's Witness Congregation Zoning

In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, Jan. 24, 2011), a New Hampshire federal magistrate judge recommended denying a preliminary injunction to a Jehovah's Witness congregation that unsuccessfully sought a zoning exception to build a Kingdom Hall in an area zoned residential. The court rejected plaintiff's free exercise claim, finding that plaintiff "was unable to identify anything religiously significant" about the property on which it sought to build. Today's Nashua Telegraph reports on the decision.

Courts Decide Claims For Return of Contributions To Religious Groups

Court decisions on two continents have recently struggled with attempts to recover transfers made by individuals to religious organizations. In Canada, a Windsor, Ontario Superior Court judge overturned a small claims court decision in a dispute over whether $35,000 transfered to the Society of the Madonna di Canneto was a loan or a contribution.  Yesterday's Windsor Star reports that the small claims court held that $30,000 of the $35,000 transfered by Luigi Tosti and three others to the organization which built a $1.5 million shrine to the Virgin Mary was a donation. The small claims trial was so contentious that the judge had to shout over the feuding parties in order to be heard.

Meanwhile, in Britain, today's London Express and the Daily Mail report that the Cardiff Civil Court of Justice ruled that former RAF officer Richard Curtis was unduly influenced by the Self Realization Meditation Healing Centre when he, along with his wife, transfered their home to the religious group. The Centre-- described by some as a cult-- is led by 79-year old Rena Denton. The group has since spent substantial amounts renovating the house for use as an alternative centre. The court nevertheless ordered the property returned to the donors. Curtis will sell it and split the proceeds with his estranged wife who is still a member of the Healing Centre.

Mother's Religious Beliefs Lead To Award of Health Care Decision Making to Father

In Winters v. Brown, (FL App., Jan. 26, 2011), a Florida appellate court upheld applying the "best interest of the child" test to affirm a trial court's award of control over health care decisions for his minor child to the child's father. Matthew Brown, the father, who was never married to Shannon Winters, the mother, petitioned for establishment of paternity and control over health care, religious and educational issues when Winters obtained a exemption from the public school immunization requirements for the child. Winters objects on religious grounds to introducing anything into the body to prevent disease or treat illness. [Thanks to Volokh Conspiracy for the lead.]

New Argentine Law Allows Muslim Women To Wear Hijab In Public

Press TV reports that Argentina has adopted a new law allowing Muslim women to wear a hijab (head scarf) in public. It also allows them to wear a hijab for their national identity card photo. Muslims make up 2% of Argentina's population.

Romania Now Taxes Income of Witches

Religion Dispatches yesterday reported on Romania's 16% income tax that beginning January 1 began to apply to the 4,000 witches in the country.  Witches in Romania-- known as vrajitoaries-- combine Christian and pre-Christian elements in their rituals. A group of witches who are unhappy about the new tax conducted a ritual to curse the government.

Amended Opinion Issued, En Banc Review Denied, In World Vision Case

Yesterday, a panel of the 9th Circuit issued an amended opinion and denied an en banc rehearing in Spencer v. World Vision, Inc., (9th Cir., Jan. 25, 2011). At issue is whether the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." In August 2010, the same panel issued three separate opinions defining the criteria for falling within the exemption. (See prior posting.) The amended opinion includes a per curiam opinion of two of the judges explicitly agreeing on the narrower of their two opinions as criteria for invoking the exemption:

Judges O’Scannlain and Kleinfeld concur that an entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

[Thanks to Steven H. Sholk for the lead.] 

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.