Recent Prisoner Free Exercise Cases

In Orso v. Shumate, 2011 U.S. Dist. LEXIS 10706 (D LA, Feb. 3, 2011), a Louisiana federal district court held that a Native American inmate adequately alleged a substantial burden on his religious beliefs in being prevented from attending a Pow Wow and performing a mourning ceremony. However the claim for injunctive relief was dismissed as moot and damage claims were dismissed on other grounds. Equal protection claims were also rejected. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 140978 (Oct. 13, 2010).

In Harris v. Skolnik, 2011 U.S. Dist. LEXIS 10777 (D NV, Jan. 25, 2011), a Nevada federal district court dismissed several claims challenging a prison's policy of requiring verification from the Aleph Institute that an inmate is Jewish before the inmate will be provided with a kosher diet. However the court allowed plaintiff to proceed with his claim that the policy amounts to religious discriminations under the Equal Protection clause because it only applies to Jewish inmates.

In Kendrick v. Faust, 2011 U.S. Dist. LEXIS 10091 (ED AR, Feb. 1, 2011), an Arkansas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 10690, Jan. 18, 2011) and dismissed without prejudice for lack of exhaustion of administrative remedies an inmate's complaint that her Catholic Bible was confiscated. The court dismissed on the merits plaintiff's complaint that her rosary beads and religious self-help books were confiscated while she was in punitive segregation.

In Hall v. Taylor, 2011 U.S. Dist. LEXIS 11006 (SD IL, Feb. 5, 2011), an Illinois federal district court rejected an inmate's claim that his free exercise rights were violated when, during a shake down search of his cell, a religious book was confiscated.

In Muhammad v. Johnson, 2011 U.S. Dist. LEXIS 11651 (WD VA, Feb. 4, 2011), a Virginia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 11240, Jan. 13, 2011) and refused to issue a preliminary injunction. Plaintiff had complained that prison authorities refused to allow him to attend Nation of Islam services and receive The Final Call newspaper.

In Cooper v. Horning, 2011 U.S. Dist. LEXIS 11921 (D MD, Feb. 8, 2011), a Maryland federal district court rejected an inmate's complaint that there is no chaplain at his correctional institution for Islamic and Moorish Science Temple of America inmates.

In Hooper v. Juneau County Jail, 2011 U.S. Dist. LEXIS 12299 (WD WI, Feb. 7, 2011), a Wisconsin federal district court dismissed for lack of specificity an inmates broad claim that he was deprived of his religious preference.

In Tucker v. Royce, 2011 U.S. Dist. LEXIS 12680 (D MS, Feb. 8, 2011), a Mississippi federal district court upheld a prison's policy of barring sex offenders in protective custody from attending Sunday church services in the jail library because the library is not equipped to separate inmates into groups.

In Davenport v. Artus, 2011 U.S. Dist. LEXIS 12497 (ND NY, Feb. 9, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 12505, Jan. 10, 2011) and dismissed an inmate's complaint that he was not permitted to attend a religious festival and receive the religious feast that night for his evening meal (the identity of the specific festival is unclear).

In Canada v. Ray, 2011 U.S. Dist. LEXIS 12927 (WD VA, Feb. 9, 2011), a Virginia federal district court rejected a Muslim inmate's claim that requiring him to undergo tuberculosis testing violates his free exercise rights. Plaintiff claimed the injection contains alcohol, but defendants refuted that claim indicating that instead it contains phenol.

In McFaul v. Valenzuela, 2011 U.S. Dist. LEXIS 13108 (ND TX, Feb.10, 2011), a Texas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 141209, Sept. 14, 2010) and dismissed a claim by a Neo-Pagan inmate that his constitutional and statutory free exercise rights were violated when authorities refused to permit him to obtain a bone skull necklace and two pendants.

Gymnastics Competition Refuses Full Religious Accommodation for 7 Year Old

North Jersey's The Record today reports on the issues faced by a 7-year old Jewish gymnast when New Jersey gymnastic competition officials refused to accommodate her Sabbath observance. Amalya Knapp, a second grader at Yeshiva of North Jersey was, for religious reasons, unable to compete in the Saturday afternoon events.  She will compete in four events today, but her scores will not count toward any individual titles or rankings for her. If her scores are high enough they will be added to her team's overall score and could help the team win. Leslie King, a spokeswoman for USA Gymnastics nationally, said that events are scheduled at the most convenient times for athletes. She explained: "We certainly understand how these conflicts can affect an athlete's participation and do our best to provide alternate opportunities, when possible." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

6th Circuit En Banc Finds Teachers Have Municipal Taxpayer Standing In Establishment Clause Suit

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., Feb. 11, 2011), the U.S. 6th Circuit Court of Appeals, en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. Most of the court's opinion focused on the more liberal standing requirements that courts have found for municipal taxpayers, as opposed to state and federal taxpayers. The majority rejected the argument that because the school district saved money by the outsourcing that taxpayers could not complain. The court also found that the individual teachers who lost their jobs because of the outsourcing did not have standing because in that capacity they were raising Establishment Clause claims of their students which the students could raise on their own.  The court unanimously agreed on this aspect of the standing question, as they did that plaintiffs' substantive and procedural due process challenges should be dismissed. Fourteen of the judges agreed that defendants enjoyed legislative immunity as to the individual capacity claims against them. The case produced two concurring opinions and two partial dissents in addition to the main opinion.

Judge Sutton's concurring opinion questioned the validity of having more liberal standing requirements for municipal taxpayers, but concluded that any modification in the doctrine needed to come from the Supreme Court.  He argued:

If a state taxpayer ... is not "immediately in danger of sustaining some direct injury as a result" of enforcement of an allegedly unconstitutional law and "merely . . . suffers in some indefinite way in common with people generally,"...why isn't the same true for a meaningful number of city taxpayers? The gross population of the largest 37 cities (41.7 million) after all is roughly the same as the gross population of the 23 smallest States.

The 3-judge panel's decision in the case, handed down in November 2008, had held 2-1 that plaintiffs had individual standing as well as municipal taxpayer standing. (See prior posting.)

9th Circuit Hears Oral Arguments In Establishment Clause Challenge To Teacher's Comments

The U.S. 9th Circuit Court of appeals yesterday heard oral arguments (recording of full arguments) in in C.F. v. Capistrano Unified High School. In the case, the district court found that an in-class comment by high school history teacher James Corbett which characterized creationism as "superstitious nonsense" violated the Establishment Clause. However the trial court refused to find similarly as to a number of other comments. (See prior posting.)  As to the one violation, the trial court denied plaintiff any relief finding the teacher was entitled to qualified immunity as to damages and finding that injunctive and declaratory relief were inappropriate. (See prior posting.) Both sides appealed. (See prior posting.) Yesterday's Orange County Register reports on the variety of questions asked by the 3-judge panel during oral arguments.

Court Says Synagogue Needs Zoning Variance To Operate A Yeshiva

In Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt, (NJ App., Feb. 9, 2011), the New Jersey Superior Court Appellate Division upheld a town's planning and zoning board decision to require a synagogue to apply for a variance in order to operate a yeshiva (school) in its building. The synagogue was operating as a pre-existing non-conforming use. The court found that the yeshiva was more than a mere accessory use of the building. The use of the property became "distinctly different."

Tennessee Bill Would Bar Local Protection Against Sexual Orientation Discrimination in Employment

On Monday, state representative Glen Casada introduced HB 331 in the Tennessee legislature. The bill would bar localities from enacting employment discrimination ordinances that go further than state law.  Titled the Equal Access to Local Government Contracts and Services Act, the law would effectively preclude cities from barring discrimination on the basis of sexual orientation. Nashville's City Paper reports that the bill is directed at a proposal in Nashville that would bar sexual orientation discrimination by companies that do business with the Metro Nashville government.

USCIRF Urged To Support Iranian Baha'is

CNN reports that on Wednesday, a group of American Baha'is met with the U.S. Commission on International Religious Freedom to urge that the U.S. keep up pressure on the Iranian government over persecution of Baha'is in Iran. Baha'is have long been persecuted in Iran.  One of those testifying before USCIRF, Iraj Kamalabadi, told the story of his sister who was convicted and imprisoned on trumped-up espionage charges.

Hawaii House Will Continue Prayers, Despite Senate's Opposite Move

Last month, responding to a complaint by the ACLU, the Hawaii state Senate voted to end the practice of opening its sessions with prayer. (See prior posting.) The state House of Representatives, however, will not follow the Senate's lead. AP reports that on Wednesday the Hawaii House adopted new rules that provide for prayer to precede the formal opening of each House session. Prayers can continue to mention God or a deity, but they may not disparage any religion. [Thanks to Alliance Alert for the lead.]

Swedish Ombudsman Sues UPS For Refusing To Accommodate Muslim Employee's Wearing of Beard

The Local reported yesterday that Sweden's Equality Ombudsman has filed a lawsuit against United Parcel Service charging the company with discrimination for discharging a Muslim employee who insisted on wearing a beard. UPS refused to make an exception for religious beliefs. The suit, brought in Sweden's Labor Court, seeks 150,0000 kroner ($24,000 US) in damages plus additional amounts for lost wages.

Muslim Brotherhood Leader Outlines Its Goals In Egypt

In today's New York Times, Essam El-Errian, a member of the guidance council of Egypt's Muslim Brotherhood, has published an op-ed outlining the goals of the Muslim Brotherhood. He says in  part:

We aim to achieve reform and rights for all: not just for the Muslim Brotherhood, not just for Muslims, but for all Egyptians. We do not intend to take a dominant role in the forthcoming political transition. We are not putting forward a candidate for the presidential elections scheduled for September....

[W]e disagree with the claims that the only options in Egypt are a purely secular, liberal democracy or an authoritarian theocracy. Secular liberal democracy of the American and European variety, with its firm rejection of religion in public life, is not the exclusive model for a legitimate democracy.

In Egypt, religion continues to be an important part of our culture and heritage. Moving forward, we envision the establishment of a democratic, civil state that draws on universal measures of freedom and justice, which are central Islamic values. We embrace democracy not as a foreign concept that must be reconciled with tradition, but as a set of principles and objectives that are inherently compatible with and reinforce Islamic tenets.

Pakistani Court Issues Arrest Warrant for Former Religious Affairs Minister Over Haj Scam

In Pakistan, a judicial magistrate's court in Islamabad today issued an arrest warrant for former religious affairs minister Hamid Saeed Kazmi. Zee News reports that the order was requested by the Federal Investigation Agency that is looking into charges that Kazmi took kickbacks and commissions in arranging accommodations for Haj pilgrims last year.  Some of the accommodations were located far from the Haj site.  Saudi authorities initially discovered the fraud and notified the Pakistan's Chief Justice. (See prior posting.) The Saudis have paid compensation to 25,000 Pakistani pilgrims.

Quebec's National Assembly Approves Ban On Kirpans In Parliament Building

In Canada, Quebec's National Assembly yesterday unanimously approved a motion supporting security officials' decision last month (see prior posting) to deny entry to Parlilament Building to a group of Sikhs who were wearing their kirpans (ceremonial daggers). Four members of the World Sikh Organization who had been scheduled to testify on a Bill 94 relating to accommodation of religious practices were denied entry when metal detectors revealed their kirpans. CTV Montreal reports that yesterday's National Assembly vote was influenced by memories of 1984 shootings in the National Assembly that killed three people. The World Sikh Organization says the issue is not security, but rather the place of tolerance and multiculturalism in Quebec. Parti Québécois member Louise Beaudoin responded: "Multiculturalism may be a Canadian value, but it's not a Quebec one."

Pagan Group Continues Battle For Tax Exemption For Property

Today's New York Times reports on the long legal battle in which a pagan religious group in the Catskill Mountains is seeking a tax exemption for its Phrygianum (religious convent). At issue is a former inn (Central House) that was the fictional home of Rip Van Winkle. It has been turned into the global headquarters and convent house for Maetreum of Cybele, Magna Mater. The group's leader describes the group as goddess oriented and gay and lesbian friendly. She says: "We're witchy. We're set up for communal living for priestesses." The tax dispute is not over whether the group is religious, but over whether the use of the house is directly connected to its religious purpose. The town argues that its use is primarily residential and only secondarily religious.

Title VII Claim By Seventh Day Adventist Against Police Department Rejected

In Morgan v. City and County of Denver, 2011 U.S. Dist. LEXIS 11918 (D CO, Feb. 7, 2011), a Colorado federal district court approved a magistrate's recommendations (2010 U.S. Dist. LEXIS 141090, Dec. 29, 2010) and dismissed a Title VII religious discrimination claim brought by a Seventh Day Adventist against the Denver Police Department Records Bureau. Plaintiff was terminated for refusing to work on Saturdays. The court concluded that plaintiff's employer had offered him reasonable accommodation-- trading shifts with a co-worker and voting for Saturdays off based on his seniority. He was also offered the opportunity to look for a comparable position in another agency that would not require Saturday work.  Plaintiff sought a permanent exemption from Saturday work. The court also rejected plaintiff's retaliation claim.

Suit Against Air Force Academy Prayer Luncheon Is Dismissed

Making oral findings of fact and conclusions of law, a Colorado federal district court yesterday dismissed a suit that sought to enjoin a National Prayer Luncheon at the U.S. Air Force Academy scheduled for Feb. 10. The suit claimed that the luncheon violates the Establishment Clause.  (See prior posting.)  The court, according to AP, concluded that the named plaintiffs, associate professor of economics David Mullin and the Military Religious Freedom Foundation, had not demonstrated that they faced a real and imminent prospect of retribution. A written order in, Mullin v. Gould, (D CO, Feb. 9, 2011) incorporated the oral findings by reference. After the decision was handed down, chaplain Dwayne Peoples told reporters that he would emphasize at the Luncheon that the sponsor is Community Center Chapel, not the Academy.

1st Circuit: Puerto Rico's Controlled Access Law As Applied Unreasonably Burdens Jehovah's Witnesses

In Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (1st Cir., Feb. 7, 2011), the U.S. 1st Circuit Court of Appeals dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. (See prior posting.)  The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood.  The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. The Court of Appeals said:

Nothing in the statute endorses the principal inhibitions of which appellants complain. The statute says nothing of unmanned locked gates or buzzers controlled solely by residents, nor does it empower guards to deny access unless a resident approves....  [T]he regime as administered does bear unreasonably on Jehovah's Witnesses' access to public streets....

 [T]he case before us is novel and difficult. But Puerto Rico's crime problems are unusually serious and its legislature's solution, albeit an experiment, was democratically adopted and is far from irrational. A court's task is to assure breathing room for legitimate communicative activity. Although we reject the facial challenge to the statute, the precedents on access to public places require fine tuning of the statute's local administration and, for that, further proceedings are required.

On remand the district court needs to take prompt action to bring the municipalities and urbanizations into compliance with this decision. In the case of urbanizations that already provide regularly manned guard gates, they must provide entry to Jehovah's Witnesses who disclose their purpose and identity .... 

Where an urbanization currently provides access only through a locked gate or a buzzer operated solely by residents, adjustment may take longer. Those prepared to provide guards during daylight hours need a brief period to hire and to train them. And any urbanization that seeks to justify more limited access arrangements ... or an exemption because of small size needs a chance to propose and defend such a request.

[Thanks to Alliance Alert for the lead.]

Israeli Civil Court Grants Damages To Wife Whose Husband Refused To Grant Her A Religious Divorce

The Jerusalem Post reported last week that, for the first time, an appellate court in Israel has ruled that a Jewish woman who has been refused a religious divorce (get) by her husband may recover damages in civil court. The decision by the Tel Aviv district court was handed down in a case brought by a woman whose husband has refused for 16 years to give her a religious divorce document.  The woman married the man when she was 24 years old and sought a divorce three months after their marriage. The district court affirmed a family court's award of damages totaling NIS 700,000 ($191,500 US).  Unless appealed to the Supreme Court, the district court's decision is binding on all family courts in Israel.

Court Dismisses Establishment Clause Challenge To Grant for Bald Knob Cross

In Sherman v. State of Illinois, (CD IL, Feb. 8, 2011), an Illinois federal district court adopted a magistrate's report and recommendations (see prior posting) and dismissed a suit by activist Robert Sherman that challenged on Establishment Clause grounds a $20,000 state renovation grant for Bald Knob Cross. The 11-story tall Cross is a landmark in southern Illinois. The magistrate had concluded that plaintiff lacks standing under the Flast case because the renovation grant was not the result of a specific legislative appropriation. Instead it was a grant made by the executive branch. The court also agreed with the magistrate that plaintiff's claim became moot once the state had disbursed the grant money. Yesterday the Chicago Tribune reported on the court's action.

Obama Resubmits Nomination for International Religious Freedom Ambassador

Last June, President Obama nominated Dr. Suzan D. Johnson Cook as Ambassador-at-Large for International Religious Freedom (See prior posting.) The Senate Foreign Relations Committee held hearings on her nomination (see prior posting), but the full Senate never voted on it.  On Monday the White House announced that President Obama has resubmitted her nomination to the Senate now that the 112th Congress has begun its session. As reported by the Christian Post yesterday, religious freedom activists have been pressing Obama to quickly fill the position, saying that not doing so sends the wrong message to foreign governments.

India's Relations With Tibetan Lama Have Become Tense

Today's New York Times carries a front-page article on the government of India's complicated  relations with Ogyen Trinley Dorje, the third ranking lama of Tibetan Buddhism. Known as the 17th Karmapa, Ogyen Trinley Dorje arrived in India in 2000 at the age of 14, recounting a daring escape from Tibet. Indian intelligence sources and many members of the public have been suspicious of him however, fearing he is being used by China with whom Indian relations have become more tense. Currently confined to a mountain side Gyuoto monastery near Dharamsala, the 17th Karmapa is attempting to claim the Rumtek Monastery built by his predecessor near the Indian border in Sikkim.  However two rivals for the title of the 17th Karmapa are also claiming the site. Given the uncertainty of his legal claims, Ogyen Trinley Dorje is also attempting to purchase other land for a new monastery. However now Indian police are investigating after nearly $1 million in foreign currency, including $166,000 in Chinese currency, was found at the Karmapa's residence. His lawyers say the money represents offerings from followers who have made pilgrimages over the years. They say it is being stored in a dormitory room shared by monks because the Karmapa is awaiting action on an application filed with the government several years ago to permit him to accept foreign currency. For the past week, thousands of monks have been holding candlelight vigils to support the Karmapa.

ACLU Settles With Some of the Parties In Suit Challenging Minnesota Charter School

The ACLU of Minnesota has reached a settlement agreement with Islamic Relief USA and Minnesota's commissioner of education in a long-running lawsuit accusing a charter school, TiZA, of violating the establishment clause by promoting Islam. (See prior posting.) The Minneapolis Star Tribune yesterday reported that the settlement involves Islamic Relief paying the ACLU $267,500, and the state increasing its screening of charter schools to assure that they do not promote religion. Islamic Relief has also agreed that it will not reincorporate in Minnesota, a step that would be needed under new Minnesota provisions if it were to continue to serve as TiZA's authorizer.  Islamic Relief has also obtained the cooperation of two witnesses who will testify if the suit continues against TiZA (Tarek Ibn Ziyad Academy) itself. The parties to the settlement have compiled a list of undisputed facts in the case, and the ACLU is asking the court to unseal underlying documents supporting those facts. A motion for confirmation of the settlement agreements was filed in federal district court on Jan. 31 indicating that settlement with the state is conditioned on the agreement and its attachments being made public.

TV and Web Coverage Approved for Closing Arguments In BC Polygamy Law Challenge

In Canada, for 8 weeks the British Columbia Supreme Court has been hearing testimony in a case challenging the constitutionality of the province's ban on polygamy. The Vancouver Sun reported yesterday that now a judge has approved the use of television cameras and Webcams to cover the two weeks of closing arguments in the case that are scheduled to start on March 28. (See prior related posting.)

Israeli Police Issue Arrest Warrant For Rabbi Who Supported Book Justifying Killing of Non-Jews

Haaretz reports today that an arrest warrant has been issued by Israeli authorities against Rabbi Dov Lior, head rabbi of Kiryat Arba, after Lior endorsed an inflammatory book written in late 2009 in which the authors argued that Jewish law justifies killing of non-Jews. (Background.)  The book, Torat Hamelech, written by two West Bank rabbis, Yitzhak Shapira and Yosef Elitzur, sparked a criminal investigation.  Lior says he will not appear for police questioning, accusing police of attempting to silence rabbis. Lior and Rabbi Yaakov Yosef, who also supported the book, issued a letter arguing that the Torah is not subject to police investigations. Two thousand demonstrators showed up to support Lior today.

RLUIPA Challenge To Zoning Denial For Christian Drug Treatment Center Is Filed

In Vestal, New York, a lawsuit was filed by Candlehouse Teen Challenge over the town's refusal to make zoning changes that would permit creation of a Christian-based rehabilitation center for recovering female drug addicts. The Binghamton (NY) Press Connects reported yesterday that the suit filed in state court alleges violations of the Religious Land Use and Institutionalized Person Act, as well as violations of the Fair Housing Act and the Americans With Disabilities Act. It seeks $300,000 in damages and a change in the Vestal zoning code which currently prohibits 5 or more people who do not operate as a traditional family from living together in areas zoned R-1.

Indonesian Mob Burns 2 Christian Churches Protesting Light Blasphemy Sentence

In the Indonesian town of Temanggung in Central Java yesterday, a Muslim mob set two churches on fire in protest of what they saw as too light a sentence being imposed on a Christian man for blasphemy.  AFP reports that violence broke out after a court sentenced Antonius Bawengan to five years in prison for distributing leaflets insulting to Islam.  Some 1500 protesters who threw stones at police shouted that Bawengan should be sentenced to death or turned over to the public.  This violence comes two days after a mob killed three members of the Ahmadiyah sect in a move to prevent them from holding worship services. (See prior posting.) Pressure is growing for the Indonesian government to take action against religious extremism.

Canadian Court Refuses To Permit Religious Use of Marijuana

In Canada today, an Ontario trial court judge rejected a constitutional challenge by two members of the Church of the Universe to Canada's marijuana laws.  The Toronto Star reports that two church members who had been charged with trafficking in marijuana and hashish claimed that cannabis is sacred to their religion and that Canada's Controlled Substances Law infringes their freedom of religion as protected by the Charter of Rights and Freedoms. Responding to arguments made by Rev. Brother Peter Styrsky and Rev. Brother Shahrooz Kharaghani, the court rejected carving out an exception for religious use of marijuana. The court wrote in part: "It is difficult, if not impossible for an outsider to identify the religious user and religious use because religious use is barely distinguishable from recreational use."

Indonesian Mob Kills At Least 3 Ahmadiyas In Bid To Stop Their Worship

In Indonesia yesterday, a thousand Muslims surrounded a house in West Java, attempting to prevent the Ahmadiya movement from holding worship services.  According to AFP, police say that three members of the Ahmadiya were killed and four seriously injured.  The state-run Antara news agency said that six people were killed. A government decree issued in 2008 bans the Ahmadiya from proselytizing. (See prior posting.) Orthodox Muslims believe that Muhammad was the final prophet, while Ahmadiya believes that its founder, Mirza Ghulam Ahmad, was the final Muslim prophet. This opens Ahmadiyas to charges of heresy and blasphemy which are punishable by five years in prison in Indonesia, despite the constitution's protection of freedom of religion.

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.]