Obama Administration Says DOMA Is Unconstitutional and Will Not Defend It In Court

The Department of Justice announced yesterday that the Obama administration has concluded that Sec. 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional and will no longer defend it in court. That section defines marriage for purposes of federal law as "only a legal union between one man and one woman as husband and wife."  The Justice Department's legal rationale was spelled out more fully in a letter to Congress (full text) which, under 28 USC Sec. 530D , the Attorney General is required to submit whenever the Justice Department decides to refrain from defending the constitutionality of any provision of federal law.

The DOJ decision, which was approved by the President, comes in two suits against the United States filed in district courts in New York and Connecticut.  In prior district court cases, the Justice Department had defended DOMA under rational basis review that had been established as the controlling standard by the Circuit Court in the district in which the case was brought.  The Second Circuit, however, has no binding precedent on the level of review that should be applied in sexual orientation cases, so the Justice Department for the first time was faced with the necessity of taking an affirmative position on whether heightened scrutiny should apply.

In his lengthy letter to Congress, Attorney General Eric Holder wrote in part:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” ... Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation....

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.... [But] none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny.... [ Neither Lawrence v. Texas nor Roemer v. Evans] reached, let alone resolved, the level of scrutiny issue because in both the [Supreme] Court concluded that the laws could not even survive the more deferential rational basis standard.

Despite this determination, the Executive Branch will continue to enforce DOMA until Congress repeals it or a court definitively declares it unconstitutional.  The United States will also remain as a party in the pending cases and will notify the courts of the government's interest in providing Congress an opportunity to participate in the litigation.

Vatican Tribunal Consultant Says Gov. Cuomo Should Be Denied Communion

CNS News Monday reported comments by Dr. Edward Peters, a consultant to the Apostolic Signatura, the Catholic Church's highest judicial tribunal, criticizing Albany, New York Bishop Howard Hubbard for giving communion at Mass to New York Governor Andrew Cuomo. Today's New York Times also reports on the comments by Peters, who is a professor at Sacred Heart Major Seminary in Detroit. Focusing on the fact that Cuomo lives with girl friend Sandra Lee (a Food Network hostess), Peters said:

The governor, with complete freedom, is publicly acting in violation of a fundamental moral expectation of the Church. On these facts alone, his taking holy Communion is objectively sacrilegious and produces grave scandal within the faith community. As long as he persists in such conduct, he should refrain from taking holy Communion in accord with Canon 916. If he approaches for holy Communion, he should be denied the august sacrament in accord with Canon 915.

In January, Cuomo attended Mass at Albany's Cathedral of the Immaculate Conception with his three daughters from his first marriage and with Sandra Lee. Lt. Gov. Robert Duffy and his wife also attended. Bishop Hubbard delivered a homily in which he assured Cuomo and Duffy of his prayers and support in the challenges they face. Peters described the homily as "a failure in pastoral care" for not challenging the governor to reform his person.  Peters also indicated that Cuomo's public position supporting abortion also appears to justify withholding communion from him.

Naval Academy Grad Succeeds In Obtaining Conscientious Objector Status

Yesterday, Michael Izbicki became one of the few graduates of the U.S. Naval Academy to ever successfully obtain conscientious objector status. Today's New York Times chronicles Izbicki's two-year legal battle, including a federal lawsuit filed on his behalf by the ACLU last November. (See prior posting.) The Navy rejected Izbicki's application twice, questioning whether his beliefs were sincere. The Times describes the transcripts of the hearings on those applications as "read[ing] partly like a court-martial, partly like oral exams for a doctor of divinity degree..."  But now the Navy has decided that there is enough evidence to grant Izbicki CO designation.  The Ensign's realization that he was a CO began with a question on a Navy psychological exam asking him if he would launch a missile carrying a nuclear warhead if ordered to do so.

DC District Court Upholds Health Care Reform-- No Commerce Clause or Free Exercise Problems

Another federal district court has weighed in on the constitutionality of the Patient Protection and Affordable Care Act-- the 2010 law reforming the U.S. health care insurance system.  In Mead v. Holder, (D DC, Feb. 22, 2011), the district court for the District of Columbia rejected a challenge brought by individuals who object to the mandate to purchase health insurance imposed by the new law-- including objecting on religious grounds.  The court concluded that the law is a proper exercise of Congress' commerce clause powers.  However it refused to also uphold it under Congress' taxing and spending authority. Finally the court rejected plaintiffs' arguments that the new law violates their free exercise rights as protected by the Religious Freedom Restoration Act. Plaintiffs argued that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health.  The court said:

[T]he conflict alleged between § 1501's requirements and Plaintiffs' Christian faith does not rise to the level of a substantial burden....  [I]t is unclear how § 1501 puts substantial pressure on Plaintiffs to modify their behavior and to violate their beliefs, as it permits them to pay a shared responsibility payment in lieu of actually obtaining health insurance.... Even if § 1501 does substantially burden the exercise of Plaintiffs' Christian faith, Plaintiffs have failed to state a claim for relief under RFRA because the individual mandate provision serves a compelling public interest and is the least restrictive means of furthering that interest.

AP and Blog of the Legal Times both report on the decision. The American Center for Law and Justice which filed the suit says it plans to appeal. (See prior related posting.)

Delaware High Court Upholds Child Victim's Act Window For Filing Suits

In Sheehan v. Oblates of St. Frances de Sales, (DE Sup. Ct., Feb. 22, 2011), the Delaware Supreme Court upheld the constitutionality of the state's 2007 Child Victim's Act that repealed the statute of limitations in child sex abuse cases and created a 2-year window for filing suits on which the prior statute of limitations had run. The court concluded that the statute does not violate either state or federal due process protections. Remanding the case for a new trial, the court also held that the CVA revives intentional tort claims and found that the trial judge abused his discretion in excluding testimony of one of plaintiff's expert witnesses on causation. The suit involves allegations of sexual abuse in 1962 by a priest teaching at a Catholic school attended by plaintiff. AP reports on the decision. (See prior related posting.)

Police Captain Balks At Attending Law Enforcement Appreciation Day At Mosque

KRMG News yesterday reported that the Tulsa (OK) police department has reassigned a police captain and begun an internal investigation after the captain refused to instruct his officers to attend an upcoming Law Enforcement Appreciation Day sponsored by a local mosque.  The event will feature food, meeting of local Muslim leadership and an opportunity to watch the afternoon prayer service.  Officers object to being required to attend a religious event. KRMG separately reports that Police Chief Chuck Jordan will attend the event.  Jordan says that community policing is part of the department's mission. He emphasized that members of the mosque deserve equal treatment and respect by the police.

UPDATE: New American (2/23) reports that Tulsa police captain Paul Fields, the officer who refused to instruct his officers to attend the event, now will file a lawsuit alleging interference with his 1st Amendment rights of association and religion. The police department says "the Police Department and the Islamic Society of Tulsa very deliberately arranged attendance so that officers need not participate in any religious discussion or observance that would create any discomfort or inconvenience for them."

Christian Proselytizing Group Sues Dearborn, Michigan Over Arrests At Arab Festival

Yesterday a Christian group that seeks to convince Muslims to convert to Christianity filed a lawsuit in federal district court against the city of Dearborn, Michigan, city police officers and executives of the Dearborn American Arab Chamber of Commerce.  The complaint (full text) in Acts 17 Apologetics v. City of Dearborn, (ED MI, filed 2/22/2011) alleges a dozen claims-- including claims under the 1st and 14th Amendments-- growing out of two incidents at last year's Dearborn Arab International Festival.  In both cases, police arrested Christians who were proselytizing Muslims at the Festival. The complaint asks for a declaratory judgment, an injunction and damages.  Thomas More Law Center issued a press release announcing the filing of the case.

Supreme Court Denies Review In 10 Commandments Case

Yesterday the U.S. Supreme Court denied certiorari in McCreary County v. ACLU of Kentucky, (Docket No. 10-566, cert. denied 2/22/2011) (Order List.) In the case-- which has been before the Supreme Court once in 2005 already-- a majority of a 6th Circuit panel (see prior posting) approved issuance of a permanent injunction against a display of the 10 Commandments with other historical documents that refer to God in two Kentucky county court houses.  The panel refused to find that the counties had changed their original religious purpose for the displays. The 6th Circuit denied en banc review. (See prior posting.) Christian Science Monitor reports on the Courts denial of review.

Indian Court Convicts 31 Muslims, Acquits 63, In 2002 Attack on Hindus

A court in India's state of Gujarat has found 31 Muslims guilty of murder and criminal conspiracy in the 2002 attack in which they torched an express train carrying Hindu activists who were heading to build a temple on a disputed site.  The attack killed 59 and set off counter-riots in Gujarat that killed over than 1000 Muslims.  Today's Washington Post reports that the court acquitted 63 others in the trial, including 70-year old Maulana Hussain Umarji who was charged as a key conspirator. The 15-month trial called some 253 witnesses.  The convicted defendants will be sentenced on Friday. BBC News outlines the history of previous investigations into the train attack.

Two States Propose New Limits On Religious Exemptions To Immunization Requirements

Natural News today reports on proposed legislation in Washington state and New Jersey that would place new limits on religious exemptions from mandatory vaccination requirements.Washington SB 5005 would require that applications for religious, philosophical or medical exemptions include a statement by a health care practitioner that the parent or guardian has been informed of the benefits and risks of immunization to the child.  New Jersey's ACR 157 is a resolution reviewing recently adopted state administrative rules on immunizations finding that they violate legislative intent.  The resolution calls for the Commissioner of Health and Senior Services to withdraw the regulations or amend them to require parents applying for a religious exemption to furnish a written statement explaining how the administration of the vaccine conflicts with the bona fide religious tenets or practices of the student or the parents or guardians. The Natural News article discusses potential 1st Amendment challenges to the proposed new restrictions on exemptions.

Felony Enhancement For Church Burglary Does Not Violate Establishment Clause

In Burke v. State of Indiana, (IN App., Feb. 21, 2011), the Indiana Court of Appeals upheld the constitutionality of a provision that enhances burglary to a Class B felony if the building involved was one that is used for religious worship.  The court rejected a federal Establishment Clause challenge, finding that the statute has secular purposes-- churches traditionally have less security measures, society finds such crimes more repulsive and these offenders take more time to rehabilitate. The court also found no excessive entanglement. Finally it rejected a state constitutional challenge, finding the law does not materially burden the right to be free from a preference for a particular religion or religion in general, protected by Art. I, Sec. 4 of the Indiana Constitution.

Tunisia Now Faces Question of Role of Islam In New Government

Today's New York Times reports that Tunisia, in the wake of its successful revolution, now faces questions of the role of Islam in politics. Many in the traditionally secular and socially liberal country fear that conservative forces will press for infusing Islam into government. On Saturday thousands marched in Tunis demanding separation of religion and government.  The country's main Muslim movement, Ennahdha, opposes imposition of Islamic law in the country. However, last week security forces had to be called out to protect Tunis' brothels from rock-throwing protesters who shouted "No to brothels in a Muslim country!"

Recent Articles of Interest

From SSRN:

• Anver M. Emon, The Quadrants of Shari'a: The Here and Hereafter as Constitutive of Islamic Law, (Roads to Paradise, Todd Lawson, Sebastian Geunther, eds., Brill Publications, 2011).
• Anver M. Emon, On Islam and Islamic Natural Law: A Response to the International Theological Commission's 'Look at Natural Law', (Searching for a Universial Ethic, John Berkman, William C. Mattison, eds., Eerdmans Publishing, 2011).
• C.G. Bateman, Nicaea and Sovereignty: Constantine's Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty, (February 1, 2011).
• Juliet P. Stumpf, Designing Populations: Lessons in Power and Population Production from Nineteenth-Century Immigration Law, (Vanderbilt Law Review En Banc, Forthcoming).
• Mateusz Radomyski, Medical Oaths: When Religion and Ethics Collide, (Amsterdam Law Forum, Vol. 3, No. 1, 2011).
• Michael D. McGinnis, Religion Policy and the Faith-Based Initiative: Navigating the Shifting Boundaries between Church and State, (Forum on Public Policy, No. 4, December 2010).
• Jeffrey Shulman, Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child', (Georgetown Public Law Research Paper No. 11-20, Feb. 18, 2011).
• Sharmila Murthy, Iraq’s Constitutional Mandate to Justly Distribute Water: The Implications of Federalism, Islam, International Law and Human Rights, (George Washington International Law Review, Vol. 42, 2011).
• Daniel Avila, Marriage and Civil Rights: The Anatomy of a Social Institution from a Constitutional Perspective, (February 14, 2011).
• Anthony E. Varona, Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality, (Columbia Journal of Gender and Law, Vol. 19, No. 3, pp. 805-897, 2010).

From SmartCILP and elsewhere:

• Robert John Araujo, S.J., John Courtney Murray, S.J.: A Citizen of Two Cities, 42 Loyola University of Chicago Law Journal i-xvii (2010).
• Henry L. Chambers, Jr. and Isaac A. McBeth, Much Ado About Nothing Much: Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, 45 University of  Richmond Law Review 141-167 (2010).
• Louis J. Sirico, Jr., Failed Constitutional Metaphors: The Wall of Separation and the Penumbra, 45 University of Richmond Law Review 459- 489 (2011).
• L. Ali Khan, The Qur'an and the Constitution, 85 Tulane Law Review 161-190 (2010).

Using Prison Chapel As Courtroom Violates Establishment Clause; But Harmless Error

Jones County, Texas has designated the Chapel at the French Robertson Unit of the Department of Criminal Justice as a branch courthouse. It is used for non-jury proceedings when French Roberson inmates are charged with offenses.  In Lilly v. State of Texas, (TX App., Feb. 17, 2011), an inmate who pleaded guilty to assaulting a public servant challenged on free exercise and Establishment Clause grounds the holding of his criminal proceedings in the Chapel which contains various religious depictions. The court concluded that use of the Chapel constituted an Establishment Clause violation, saying:

If it is appropriate to use a Christian chapel as a courtroom, it must also be permissible to use a synagogue, mosque, or temple for the same purpose. A reasonable observer watching a trial in any of these facilities would perceive that a message supporting that particular religion was being sent to those in attendance.

The court went on to conclude however that the Establishment Clause violation played no role in petitioner's decision to plead guilty, so there is no basis to reverse his conviction or sentence.

Rabbi Gets 4 Years For Extortion; Lower Than Max Based on "Good Works"

Friday's New York Daily News reports that a New York federal district court judge has sentenced 64-year old Rabbi Milton Balkany to 4 years in prison for extorting $4 million in contributions to two religious schools from a hedge fund.  Balkany sought the funds in exchange for telling a prisoner he was counselling not to report insider trading to authorities. (See prior posting.) Balkany faced a possible 9-year sentence, but Judge Denise Cote said that the lower sentence was "appropriate based on a lifetime of good works and generosity for those in need and people who are the forgotten of society, the most unfortunate among us."  However the judge said some prison time was called for given Balkany's lack of contrition and remorse.

Moderate Islamic Party Recognized In Egypt

Bikyamasr today reports that the first political party to be offically recognized since President Hosni Mubarak's resignation is al-Wasat al-Gadeed, a moderate Islamic party that broke off from the Muslim Brotherhood.  The party, founded in 1996, has a centrist platform and believes in translating principles of Islam into a liberal democratic system. In 2009, the party was denied a license.  A party spokesman says it will run candidates in the next parliamentary election.  The party embraces religious tolerance and has some Christian members.

Recent Prisoner Free Exercise Cases

In Knox v. Bland, (10th Cir., Feb. 14, 2011), the 10th Circuit rejected an inmate's claim that his constitutional rights were violated when a state court refused to grant his petition to change his name for religious reasons to Ali Ishmael Mandingo Warrior Chief. The 10th Circuit relied on the Rooker/ Feldman abstention doctrine and other jurisdictional limits.

In Scott v. Pierce, 2011 U.S. Dist. LEXIS 13943 (SD TX, Feb. 3, 2011), a Texas federal district court refused to dismiss 1st Amendment and RLUIPA claims by a Jehovah's Witness inmate complaining that he and his co-religionists were not permitted to meet on a number of Saturdays because no outside volunteer to lead their religious services was available.

In Burnight v. Sisto, 2011 U.S. Dist. LEXIS 13794 (ED CA, Feb. 10, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus petition.  Petitioner claimed the parole board denied him parole in part because he failed to attend a faith-based Alcoholics Anonymous program.  The court concluded that attendance was not required in order to be found suitable for parole.

HHS Narrows Health Care Workers' Conscience Protections

In late 2008, the Department of Health and Human Services adopted a broad set of regulations to protect health care providers who have moral or religious objections to performing various health care services. (See prior posting.) Lawsuits were quickly filed challenging the rule as, among other things, interfering with a woman's right to contraceptive and reproductive health care services. (See prior posting.) With the advent of a new administration in 2009, HHS proposed a repeal of these broad rules in favor of narrower protections focusing only on individuals who object to providing abortion services. (See prior posting.) On Thursday, HHS, after reviewing over 300,000 comments received on its proposals, adopted a final rule which, while not totally repealing the 2008 rule, eliminated much of it. (Full text of HHS release.) As explained by the Washington Post:

The decision guts one of President George W. Bush's most controversial legacies: a rule that was widely interpreted as shielding workers who refuse to participate in a range of medical services, such as providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women....

The new rule leaves intact only long-standing "conscience" protections for doctors and nurses who do not want to perform abortions or sterilizations. It also retains the process for allowing health workers whose rights are violated to file complaints....

The rule will retain a provision that empowers the HHS Office of Civil Rights to investigate any complaints by workers who believe their rights under existing federal law were being violated.....  That office also will launch "a new awareness initiative for our grantees . . . to ensure they understand the statutory conscience protections," according to an HHS statement.

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

Spruce Serving As National Christmas Tree Felled By High Winds

The New York Times reports that high winds which swept through Washington, DC today felled the 40-foot tall Colorado blue spruce growing on the Ellipse behind the White House. The tree has served as the National Christmas Tree since 1978.  Every year the National Christmas Tree is lit by the President in a widely broadcast ceremony.  The  tradition first began in 1923.  The Park Service had previously identified a successor tree, and now it will be moved to the Ellipse in late spring.

Fired Manager Wins Religious Discrimination Lawsuit Against Aviation Company

In a San Antonio, Texas state trial court yesterday, the former manager of a fueling and concierge service for private jets won a religious discrimination lawsuit against Mark Fessler, president of the company, and Fessler's father, a part owner of the business.  According to the San Antonio Express News, Steven Hecht was awarded back pay, damages for mental anguish and exemplary damages of $150,000 after the jury found that he was fired at least in part because he stopped attending the same church as the Fesslers.  Hecht testified to a number of incidents in which the Fessler's religious beliefs were infused into the business of Million Air San Antonio, while the Fesslers claimed that Hecht was trying to find another job before he was fired and that Hecht's attorney was using religious discrimination to inflame the jury .

DOJ May Intervene To Defend RLUIPA In Connecticut Zoning Case

Yesterday's Hartford Courant reports that the U.S. Department of Justice's Civil Division is seeking approval from the Solicitor General's office to intervene to defend the constitutionality of the Religious Land Use and Institutionalized Persons Act which is being challenged by defendants in a Connecticut federal district court lawsuit.  In the suit, Chabad Lubavitch of Lichtfield County is challenging Lichtfield's refusal to allow it to renovate a house in the town's historic district for Chabad to use as living quarters for its rabbi, a synagogue and community center.  The lawsuit claims that the refusal was motivated by anti-Hasidic animus (see prior posting), and last August the claims survived a motion to dismiss. In a court filing on Wednesday (full text), the Civil Division said that its intervention would be unnecessary if the court decides the case without reaching the constitutional issues or upholds RLUIPA before the Solicitor General's Office makes a decision regarding intervention.

Canadian Cabbie Loses Challenge To Fines For Displaying Religious Items

In Canada yesterday, according to the Toronto Globe and Mail, a Montreal municipal court judge upheld over constitutional attack four tickets given to cab driver Arieh Perecowicz for violating a Bureau du taxi rule that bars drivers from having items or inscriptions in their cab that are not necessary for the cab to be in service. However she reduced the fine and gave him a year to pay it. Perecowicz had his cab decorated with family photos, a Canadian flag and a number of items reflecting his Jewish faith, including a picture of former Lubavitch leader Rabbi Menachem Schneerson and two mezuzahs (small parchment scrolls). A taxi inspector testified that Perecowicz's cab was the messiest she had seen in five years. However apparently other cabs in Montreal often hang rosary beads or a display statue of the Virgin Mary on their dashboards. The judge concluded that the objects were in Perecowicz's cab only for his personal comfort.  Perecowicz has filed a complaint with the Quebec Human Rights Commission and says he is prepared to appeal his case. He says if there is a crucifix over the Speaker's chair in Quebec's National Assembly, he should be able to have mezuzahs on the doors of his cab.

Opposition to Ahmadiyah Creates Continued Political Division In Indonesia

In Jakarta, Indonesia today, 500 people joined a rally organized by the Islamic Defenders Front calling for the disbanding of the Ahmadiyah sect. According to the Jakarta Post, protesters said they would force the President to resign if he did not disband the sect that is considered heretical by other Muslims because it does not believe that Muhammad was the final prophet. (See prior related posting.) According to another Jakarta Post article today, the Indonesian Ulema Council says that the solution is to declare Ahmadiyah to be a separate non-Muslim religion. Human rights proponents disagree, saying this would violate their rights and would not guarantee they would not be persecuted.

Cert. Filed In Challenge To San Francisco's Resolution Criticizing Catholic Church's Adoption Stance

A petition for certiorari (full text) was filed with the U.S. Supreme Court on Tuesday in Catholic League for Religious and Civil Rights v. City and County of San Francisco. The case involves an Establishment Clause challenge to a Board of Supervisors resolution criticizing Cardinal Levada for directing Catholic Charities to end adoption placement in same-sex households. A majority of the 9th Circuit, en banc, dismissed the case on standing grounds. (See prior posting.) The petition urges the court to adopt a new Establishment Clause test for government religious speech-- allowing broader scope for government religious speech that "is reasonably related to our nation's history and traditions" than for government speech that is not. Thomas Moore Law Center issued a release announcing the filing of the cert. petition.

French Leaders Plan Debate on Role of Islam in the Country

Reuters and France 24 report that France's governing UMP party plans to lead a debate beginning in April on the role Islam in light of France's tradition of secularism-- an issue that promises to be a major focus in France's 2012 election campaign. Last week French president Nicolas Sarkozy said that multiculturalism in France had failed. After a meeting with UMP legislators on Wednesday, the new initiative was announced.  Jean-Francois Cope, secretary-general of the UMP party, said that the upcoming debate would focus on items such as the financing and building of mosques, contents of Friday sermons and the education of imams. Muslim prayer gatherings in French streets outside of overcrowded mosques have caused particular concern. In December, right wing National Front leader Marie Le Pen compared the street prayers to Nazi occupation of France in World War II. Sarkozy wants his party to lead to debate on the role of Islam in order to keep the discussion under control.

Religious Leaders Object To Planned House Hearings On Radicalization of U.S. Muslims

Think Progress reported yesterday that over 80 leaders of Catholic, Protestant, Jewish, Muslim and Hindu congregations on Long Island have signed a letter (full text) to U.S. Rep. Peter King, chairman of the House Homeland Security Committee, asking him to cancel a planned congressional hearing into radicalization of the American Muslim community. The letter says in part:

Muslim-Americans have consistently denounced terrorism and worked closely with law enforcement to prevent violence. Building and maintaining trust with the Muslim community is crucial to furthering this cooperation, and we fear your hearings will only sow greater distrust and division at a time when unity and moral courage are needed.

Earlier this month, in a letter to the ranking Democrat on the committee who also raised objections to the planned hearing, King said: "I will not allow political correctness to obscure a real and dangerous threat to the safety and security of the citizens of the United States."

Hawaii Senate Passes and Sends To Governor Bill Authorizing Civil Unions

The Hawaii Senate on Wednesday by a vote of 18-5 passed and sent to the governor for his signature SB 232, a bill authorizing same-sex (as well as opposite-sex) civil unions in the state.  The Honolulu Star Advertiser reports that Gov. Neil Abercrombie has promised to sign the bill into law.  Last year, former governor Linda Lingle vetoed a similar bill. (See prior posting.) Under the bill, parties to a civil union have the same rights and responsibilities as a married couple. Any judge or member of the clergy may be licensed to solemnize a civil union, but no one is required to perform civil union ceremonies, nor may anyone be penalized for refusing to do so. Hawaii will be the seventh state to authorize civil unions, but not same-sex marriages. Also on Wednesday, the Hawaii Senate unanimously approved the governor's appointment of Circuit Judge Sabrina McKenna-- who is openly gay-- to the state Supreme Court.

California High Court Accepts Certified Question On Standing In Prop 8 Challenge

Last month in Perry v. Schwarzenneger -- the challenge to the constitutionality of California's Proposition 8 that bars same-sex marriage-- the U.S. 9th Circuit Court of Appeals certified to the California Supreme Court the question of whether under California law "official proponents of an initiative measure" have, under state law, a sufficient interest to give them standing to defend the constitutionality of the initiative when the public officials refuse to do so. (See prior posting.) Yesterday, the California Supreme Court granted the certification request. AP reports that the Court may hear oral arguments as early as September.

New Poll Reveals American Attitudes Toward U.S. Muslim Community

Public Religion Research Institute yesterday announced the results of a poll (full results) of 1,015 adults completed last week seeking the views of Americans on the Muslim community in the U.S.  The poll reveals that 56% of Americans say that upcoming Congressional hearings on alleged extremism in the American Muslim community are a good idea. 72% say Congress should investigate religious extremism anywhere it exists, and not focus just on the Muslim community.  46% believe that American Muslims have not done enough to oppose extremism in their communities. 49% reject the idea that Muslims have been unfairly targeted by law enforcement.  62% believe Muslims are an important part of the American religious community. 22% believe that Muslims want to establish Shari'a law as the law of the land in the U.S. The poll also shows that there is a significant correlation between trust in Fox News and negative attitudes toward Muslims. Religion Dispatches reports on the poll.

9th Circuit Says Substantial Burden Under RLUIPA Can Be Imposed By Neutral Zoning Law

In International Church of  the Foursquare Gospel v. City of San Leandro, (9th Cir., Feb. 15, 2011), the U.S. 9th Circuit Court of Appeals reversed the district court and held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. Evidence from a realtor and a former city manager that no other suitable sites exist in the city to house the church presented a triable issue of fact as to the extent of the burden posed by the city's zoning denial. The court added:

In spite of the Church’s allegations about its core beliefs, the district court accepted the City's contention that the Church could continue to conduct three separate Sunday services or could acquire several smaller properties throughout the City and relocate some of its operations off site. The district court's flat rejection of the Church's characterization of its core beliefs runs counter to the Supreme Court's admonition that while a court can arbiter the sincerity of an individual’s religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs.

Finally the court held that the city's need to preserve property for industrial use is not automatically as a matter of law a compelling governmental interest. (See prior related posting.) Yesterday the San Francisco Chronicle reported on the decision.

2nd Circuit Upholds Dismissal of Street Preacher's Challenge To Noise Ordinance

In Costello v. City of Burlington, (2d Cir., Feb. 14, 2011), the U.S. 2nd Circuit Court of Appeals upheld, as applied, Burlington, Vermont's noise ordinance that was invoked by a police officer to issue a written warning to plaintiff, a street preacher, who was preaching in a loud voice outside places of business on a pedestrian mall.  In an opinion by Chief Judge Jacobs, most of which was concurred in by Judge Calabresi, the court concluded that the ordinance was a content neutral time, place and manner regulation in a public forum. Judge Pooler concurred only in the result, relying instead on the doctrine of qualified immunity to affirm dismissal of plaintiff's complaint. She believed that the case was closer on the merits since prior case law relied upon by the majority all dealt with amplified sound, not the loud unamplified speech that was present in this case. She pointed out that "street preaching ... has a long history in this country."

Many of Diocese's Claims Challenging Refusal To Allow Cemetery Development Are Dismissed

In Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of Old Westbury, 2011 U.S. Dist. LEXIS 14268 (ED NY, Feb. 14, 2011), a New York federal district court dismissed many, but not all, of the claims growing out of a town's refusal to allow the Catholic Diocese to develop of a parcel of land as a cemetery. Constitutional claims and claims under RLUIPA against a private consulting firm involved with the village's decision were dismissed because the firm was not acting under color of law. A number of claims against the Village of Old Westbury were dismissed on statute of limitations grounds, but a challenge to the constitutionality of a 2001 zoning law survived under the continuing violation theory. Claims based on the State Environmental Quality Act process were dismissed as unripe. Official capacity, but not individual capacity, claims against the superintendent of buildings and public works alleging illegal searches were dismissed.

Criminal and Civil Charges Generated By Philadelphia Grand Jury Sex Abuse Report

In Philadelphia (PA) last week, a grand jury released a 128-page report (full text) on its investigation of sexual abuse by clergy and employees of the Catholic archdiocese of Philadelphia. According to an accompanying press release: "The report recommended that the Archdiocese of Philadelphia overhaul its procedures for assisting victims and for removing from ministry priests accused of molesting minors. The Grand Jury encouraged victims to report their abuse first to law enforcement." In a Presentment (full text) the grand jury recommended indictments be filed against three priests and a teacher, as well as against an archdiocese official. According to the Milwaukee Journal Sentinel a civil suit against the Archdiocese based on this grand jury report and an earlier one released in 2005 (full text) was filed on Monday.

Church Sues NY Port Authority Over Ground Zero Reconstruction Plans

According to CNN, a federal lawsuit was filed Monday in Manhattan against the Port Authority of New York and New Jersey by the Greek Orthodox Archdiocese of America and St. Nicholas Church.  The church, which was located at Ground Zero, was destroyed in the collapse of the Twin Towers on 9-11.  Apparently the parties agreed in 2008 that the Church would be rebuilt using public funds on adjacent property while construction moved ahead on a vehicle security center as part of the World Trade Center redevelopment.  The Port Authority says the church subsequently rejected an offer of $60 million for construction on the new site.  The Port Authority says that the church can still rebuild on its original site beginning in 2013 when the vehicle security center is completed. The church's lawsuit claims that the Port Authority is guilty of arrogance, bad faith and fraudulent conduct in the negotiations.

Church Sues Over Denial of Zoning Permit

A lawsuit was filed last week in a Georgia federal district court by a predominately African-American Christian church against Coweta County (GA) charging that the county's denial of a conditional use permit for the church to build a place of worship on property it purchased violated RLUIPA as well as various provisions of the 1st and 14th Amendments. The complaint (full text) in All Souls Church of God in Christ, Inc. v. Coweta County, Georgia, (ND GA, filed 2/11/2011) claims that applications by other religious and non-religious organizations that are predominately White have received more favorable treatment. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Egypt's Constitution Revision Panel Appointed; Impact On Religious Pluralism Is Uncertain

Egypt's military council yesterday selected an 8-member committee to quickly recommend revisions to the country's constitution. Chairman of the revision committee is Tareq el-Bishri, a former judge and prominent historian.  Other members are: Sobeh Saleh, a lawyer, former member of Parliament and a member of the Muslim Brotherhood; Maher Samy Youssef, a Coptic Christian judge; two other judges-- Hassan El Badrawi and Hatem Bagatou; and three law professors-- Mohamed Hassaneim Abdel Al, Mahmoud Atef El Bana and Mohamed Bahey Abou Younis.  News reports place very different interpretations on the panel's likely approach to issues of religious pluralism in Egypt. The New York Times has a rather upbeat report, calling the selections "the first significant evidence of the military's commitment to moving the country toward democratic rule." It continued:

The committee will be led by Tareq el-Bishri, a prominent former judge known for maintaining his independence of the Mubarak government. He was once thought to be left leaning but is considered be sympathetic to moderate Islamism, legal analysts said, making him a bridge figure between the main Egyptian political factions.

In contrast, London's Telegraph ran a report saying:

Tarek al-Bishry, the chairman of the constitutional panel, is a respected judge who criticised former president Hosni Mubarak and is regarded as moderate in his views. But he has been associated with Al-Wasat, an offshoot of the Brotherhood. He has selected a committee made up mainly of judges and politicians, including a judge who is a Coptic Christian, but also a former Muslim Brotherhood MP. There are no women.

Wael Abbas, the best-known human rights blogger in Egypt, who was sentenced to prison by the Mubarak regime last year, said it was a "worrying" choice. "There is no such thing as a moderate Islamist," he said. "We want a secular state that respects all religions and which belongs to all religions." ...

[T]he make-up of the new committee, and the fact it has been given just ten days to come up with a new constitution, has dashed hopes that it will remove Article 2, which makes Islam the state religion and says Shariah is the main source of law.

Christian Coalition Blocking Sunday Liquor Sales Bill In Georgia

Today's Atlanta Journal Constitution reports that religious conservatives are increasing pressure on Republicans in the state Senate to kill a bill that would allow local referenda to authorize the sale of alcoholic beverages at retail stores on Sundays. In the past, defeat of similar proposals were blamed on former Republican governor Sonny Perdue, a Christian conservative who said he would veto any Sunday liquor sale bill. New Republican governor Nathan Deal said he would sign the bill.  A Senate committee has approved the bill, but then members of the Georgia Christian Coalition began to lobby and send e-mails and letters to Republican senators. Now it is not clear that the bill has majority support in the Republican caucus. If it does not, it will not be brought to the floor.

Egypt's Muslim Brotherhood Planning Non-Religious Islam-Based Party, But No Presidential Candidate

London's Financial Times today reports that in Egypt, the Muslim Brotherhood has announced that if legal restrictions against it are lifted it will set up a political party, but will not run a candidate for president. A leader of the Brotherhood says that the proposed party will have Islam as a frame of reference, but will not be a religious party. Deputy Leader Rashad Bayoumi says:

We do not have the concept of a religious party, or of a government of religious scholars [like in Iran].  All this is very far from Islam. We say that when we differ over anything we should refer to the Koran. But if matters stray away from the principles of mercy, freedom and social justice, then this would be against religion.

The Egyptian constitution was amended in 2007 to ban political parties based on religion. (See prior posting.) The Supreme Military Council which is temporarily governing in Egypt promises to propose amendments to the constitution before elections are held. It has appointed a former member of Parliament with ties to the Muslim Brotherhood as one of the members of the committee that is drafting the proposed constitutional changes.

UPDATE: Today's Wall Street Journal carries an analysis titled 'Brothers' In Egypt Present Two Faces, reporting that while the younger, more tolerant wing of the Brotherhood were those involved in the recent protests, the conservative "old guard" that is anti-Western and more radically Islamic continues to make up the bulk of the Brotherhood leadership.  Here is an excerpt:

A different face of the Brotherhood is that of Mohamed Badi, 66-year-old veterinarian from the Brotherhood's conservative wing who has been the group's Supreme Guide since last January. He recently pledged the Brotherhood would "continue to raise the banner of jihad" against the Jews, which he called the group's "first and foremost enemies." He has railed against American imperialism, and calls for the establishment of an Islamic state.

Party Complains That Ukraine Government Is Favoring Moscow Patriarchate Over Kiev

Interfax today reports that in Ukraine, the opposition Our Ukraine Party has written President Viktor Yanukovich and Prime Minister Nikolay Azarov complaining about pressure by law enforcement personnel on Orthodox clergy to transfer their allegiance from the Kiev Patriarchate to the Moscow Patriarchate.  The opposition party complained that authorities are also favoring the Moscow Patriarchate through budget earmarks.

Michigan Bill Would Increase Penalties For Disturbing Religious Services

The Livingston County (MI) Daily Press and Argus reports on passage by the Michigan state Senate last week of Senate Bill 19 which would increase the penalties for interrupting or disturbing services at any building that is clearly identified as one used for religious purposes. It also bans obstructing anyone entering or leaving a building used for religious purposes.  The bill was sent on to the state House of Representatives for consideration. The Michigan ACLU is concerned that the bill does not define a religious disruption and fears it could be applied, for example, to someone wearing an offensive button in church. The bill calls for imprisonment of up to 93 days, a $1000 fine and 100 hours of community service work for a first offense.

Ohio Supreme Court: Church Can Get Separate Tax Exemption For Sports Fields

Ohio law provides for property tax exemptions both for houses of worship (RC 5709.07(A)(2)) and for property used for charitable purposes (RC 5709.12(B)). An Akron, Ohio church acquired 79.8 acres on which it built a church building and also softball and soccer fields and a jogging path which it viewed as part of its sports ministry.  The recreational portions of the property were used by various community groups and members of the general public who were not necessarily church members. In The Chapel v. Testa, (OH Sup. Ct., Feb. 10, 2011), the Ohio Supreme Court held that the property could be split so that the church building obtained the house of worship exemption and the recreational portions obtained the charitable exemption.  Neither church ownership nor religious motivation prevent relying on the charitable use exemption, even though that portion of the property would not have qualified for the house of worship exemption. BNA Daily Report for Executives discusses the decision.

Valentine's Day Stirs Religious Objections In Parts of the World

Today is Valentine's Day. But Voice of America reports that in parts of the world religious objections to celebrating the day continue. In southern India, members of a Hindu political party burned Valentine's Day cards,  decrying cultural exploitation and sexual greetings on cards. Saudi Arabia and Malaysia have banned celebration of the day, calling it a vice.  However Arab News reports that while in Saudi Arabia the Commission for the Promotion of Virtue and Prevention of Vice has told stores to remove items that are red, Saudi couples are finding other ways to celebrate-- having dinner in popular restaurants and exchanging gifts of jewelry, perfume and chocolates. Dubai permits celebration of the day, but this year has banned the sale of alcohol because of the proximity to tomorrow's celebration of the Prophet Muhammad's birthday. Meanwhile in Iraq, according to AFP, young people are holding a Valentine's Day rally to urge their leaders to love the country instead of robbing it of its resources.

Boehner Believes Obama Is A Christian But "Not My Job To Tell the American People What To Think"

Republican House Speaker John Boehner was a guest on NBC's Meet the Press yesterday. (Full transcript.) His interview included an exchange regarding the perceptions of some Americans regarding President Barack Obama's religious beliefs. Host David Gregory played a tape of an Iowa focus group of voters during which one woman said she believes that Obama is a Muslim.  This exchange between Gregory and Boehner followed:

MR. GREGORY: As the speaker of the House, as a leader, do you not think it's your responsibility to stand up to that kind of ignorance?

SPEAKER BOEHNER: David, it's not my job to tell the American people what to think. Our job in Washington is to listen to the American people. Having said that, the state of Hawaii has said that he was born there. That's good enough for me. The president says he's a Christian. I accept him at his word.

MR. GREGORY: But isn't that a little bit fast and loose? I mean, you are the leader in Congress and you're not standing up to obvious facts and saying, "These are facts. If you don't believe that, it's nonsense."

SPEAKER BOEHNER: I just outlined the facts as I understand them. I believe that the president is a citizen. I believe the president is a Christian. I'll take him at his word. But, but...

MR. GREGORY: But that kind of ignorance about whether he's a Muslim doesn't concern you?

SPEAKER BOEHNER: Listen, the American people have the right to think what they want to think. I can't--it's not my job to tell them.

MR. GREGORY: Why isn't it your job to stand up and say, "No, the facts are these"? ...

SPEAKER BOEHNER: I, I, I just did.... 

MR. GREGORY: You shouldn't stand up to misinformation or stereotypes?

SPEAKER BOEHNER: ...but, but, but, but, but I've made clear what I believe the facts are.

MR. GREGORY: But is, is it, is it because it weakens the president politically, it seeks to delegitimize him that you sort of want to let it stay out there?

SPEAKER BOEHNER: No. What I'm trying to do is to do my job. Our job is to focus on spending. We're spending too much money here in Washington....

Proposed New Tax Law In India Will Impact Religious Trusts

The Times of India on Saturday reported that a group of religious trusts held a news conference to oppose certain provisions in the proposed Direct Tax Code pending in India's Parliament.  Under the proposal, trusts or institutions created for the benefit of a particular caste or community would no longer qualify as non-profit organizations.  The bill would subject them to a 30% income tax and to a wealth tax of 1% on their assets over a specified minimum.  This will affect schools, orphanages, homes for the destitute and trusts that manage temples and other religious organizations.

Recent Articles of Interest

From SSRN:

• Robert Steinbuch and Brett Tolman, That Ain't Kosher, (University of Arkansas at Little Rock Law Review, Vol. 33, No. 1, 2010).
• Evelyn Tenenbaum and Sarah E. Ricks, Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA, (Current Issues in Constitutional Litigations: A Context and Practice Casebook, p. 615, Michael Hunter Schwartz, ed., Carolina Academic Press, 2011).
• Zachary R. Calo, Review of First Be Reconciled: Challenging Christians in the Courts by Richard P. Church, (The Cresset: A Review of Literature, the Arts, and Public Affairs, Vol. 74, p. 58, 2010).
• Issam A.W. Mohamed, The Impacts of Social Justice and Wealth Distribution in Sudan (In Arabic),(February 5, 2011).
• Aziz Z. Huq, The Signaling Function of Religious Speech in Domestic Counterterrorism, (Texas Law Review, Forthcoming).
• Adam J. Kolber, Alternative Burdens on Freedom of Conscience, (San Diego Law Review, Vol. 47, 2010).
• Trudy Rushforth, Religious Exercise in Prison - A Guide for Prison Officials, (February 12, 2011).
• Youngjae Lee, Deontology, Political Morality, and the State, (Ohio State Journal of Criminal Law, Vol. 8, 2011).
• Nancy M. Modesitt, Reinventing the EEOC, (Southern Methodist University Law Review, Vol. 63, No. 4, p. 1237, 2010).

From SmartCILP:

• Robert H. Knight, How the Concept of "Sexual Orientation" Threatens Religious Liberty, 4 Liberty University Law Review 503-536 (2010).
• Ran Kuttner, From Adversity to Relationality: A Buddhist-Oriented Relational View of Integrative Negotiation and Mediation, [Abstract], 25 Ohio State Journal on Dispute Resolution 931-974 (2010).
• Rena M. Lindevaldsen, The Fallacy of Neutrality From Beginning to End: The Battle Between Religious Liberties and Rights Based on Homosexual Conduct, 4 Liberty University Law Review 425-463 (2010).

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.