Archbishop Speaks On U.S. Church-State Principles As Model For Other Countries

Denver Catholic Archbishop Charles Chaput yesterday delivered an interesting keynote address (full text) at a Georgetown University conference on "Religion in American Politics: A Model for Other Countries?". Here are some excerpts from the talk which Chaput said emerged from his experience on the U.S. Commission on International Religious Freedom:

Principles that Americans find self-evident — the dignity of the human person, the sanctity of conscience, the separation of political and sacred authority, the distinction between secular and religious law, the idea of a civil society pre-existing and distinct from the state — are not widely shared elsewhere.... We need to ask ourselves why this is the case....

It's impossible to talk honestly about the American model of religious freedom without acknowledging that it is, to a significant degree, the product of Christian-influenced thought. Dropping this model on non-Christian cultures – as our country learned from bitter experience in Iraq – becomes a very dangerous exercise. One of the gravest mistakes of American policy in Iraq was to overestimate the appeal of Washington-style secularity, and to underestimate the power of religious faith in shaping culture and politics.....

What we see today is a repudiation of [the American] model by atheist regimes and secular ideologies, and also unfortunately by militant versions of some non-Christian religions. The global situation is made worse by the inaction of our own national leadership in promoting to the world one of America's greatest qualities: religious freedom.

This is regrettable because we urgently need an honest discussion on the relationship between Islam and the assumptions of the modern democratic state.... [W]e need to encourage an Islamic public theology that is both faithful to Muslim traditions and also open to liberal norms. Shari'a law is not a solution. Christians living under shari'a uniformly experience it as offensive, discriminatory and a grave violation of their human dignity.

A healthy distinction between the sacred and the secular, between religious law and civil law, is foundational to free societies. Christians, and especially Catholics, have learned the hard way that the marriage of Church and state rarely works. For one thing, religion usually ends up the loser, an ornament or house chaplain for Caesar. For another, all theocracies are utopian – and every utopia ends up persecuting or murdering the dissenters who can't or won't pay allegiance to its claims of universal bliss.

Yemini Islamist Leader Interjects Call For Islamic State Into Anti-Government Demonstrations

The New York Times today reports that a new element has been introduced into the anti-government protests in Yemen. Sheik Abdul Majid al-Zindani, head of the Islamist Al Islah party, spoke to several thousand anti-government protesters today calling for replacement of the present government with an Islamic state. It is unclear how much support among largely secularist demonstrators al-Zindani has.  Al-Zindani has been on the U.S. Treasury Department's list of "specially designated global terrorists" since 2004. The Christian Science Monitor says that al-Zindani has been a supporter of  President Saleh until yesterday when he renounced him.

Indian Court Sentences 11 To Death For 2002 Attack On Hindus

Last week, a  court in India's state of Gujarat found 31 Muslims guilty of murder and criminal conspiracy in the 2002 attack that set fire to a train carrying Hindu pilgrims. The attack killed 59 and set off counter anti-Muslim riots that killed up to 2000. (See prior posting.) Today, according to AFP, the court imposed death sentences on 11 of the defendants and life sentences on the 20 others. According to the special prosecutor in the case, the court found the death sentences justified, seeing the crimes as ones that come "under the category of the rarest of the rare."

Judge Should Have Given "Deific Command" Instruction In Murder Trial

In State of New Jersey v. Singleton, (NJ App., Feb. 28, 2011), the New Jersey Superior Court Appellate Division reversed the conviction of Boyce Singleton who had been found guilty of murdering his pregnant girlfriend, finding the trial judge's instructions on the insanity defense were incomplete.  The court remanded for a new trial at which the judge is to add an instruction on the insanity standard where defendant believes he was commanded by God to act. The court said:

[T]he record contained evidence from which the jury could have found that defendant believed he had received a deific command to murder Michelle. With only the model jury charge as a guide, the jury could have rejected the insanity defense -- even if it found persuasive the deific command evidence -- by finding defendant understood his actions were contrary to law. To avoid that possibility, a judge must provide ... the further explanation that insanity may be found -- even if defendant knew his actions were contrary to law -- if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command. In other words, in such an instance, the judge must instruct that the defendant may not be held responsible for his actions "where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.

The Trentonian reports on the decision.

British Court Struggles With Conflict Between Christian Beliefs and Foster Care Rules On Sexual Orientation

In Britain yesterday, the Queen's Bench Division of the High Court of Justice refused to issue a declaratory order in a case pitting a Christian couple's beliefs regarding homosexuality against a proposed interpretation of government standards for approval of applicants who wish to serve as foster care givers.  R Johns v. Derby City Council, (EWHC, Feb. 28, 2011), involves questions  raised by a social worker who interviewed Eunice and Owens Johns as to whether they would be able to give appropriate support to a foster child who might be confused about his or her sexuality.  The government's National Minimum Standards for Fostering Services requires that young people be provided with foster care services that value diversity and promote equality. Derby City Council's Fostering Panel postponed a decision on whether to approve the Johns' application pending further consideration of the legal issues. Both parties agreed to seek a judicial ruling.  The court observed that the proceedings are "most unusual" because they seek a determination in the abstract. However the Court strongly rejected plaintiffs' contention that the case is about whether the government is relegating Christians to second class status.

Groups such as the Christian Legal Centre have issued statements strongly critical of language in the opinion such as the following statement that is part of the court's analysis:

If children, whether they are known to be homosexuals or not, are placed with carers who ... evince an antipathy, objection to or disapproval of, homosexuality and same-sex relationships, there may well be a conflict with the local authority's duty to "safeguard and promote" the "welfare" of looked-after children. There may also be a conflict with the National Minimum Standards for Fostering Services and the Statutory Guidance. Religion, belief and sexual orientation are protected characteristics under the Equality Act 2010.... While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may ... be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.

Yesterday's London Telegraph reports on the decision, focusing on the court's statement that the judges serve a multi-cultural community of many faiths, "but the laws and usages of the realm do not include Christianity, in whatever form."

Review Denied In Pastor's Defamation Claim

Today the U.S. Supreme Court denied certiorari in Cooke v. Tubra, (Docket No. 10-559, cert. den. 2/28/2011). (Order List.)  In the case, an Oregon appellate court reversed a trial court's dismissal of a pastor's defamation claim against his former church and two of its officers.  The Virginia Court of Appeals held that statements made by a religious organization which do not concern its religious beliefs and practices or which are made for a nonreligious purpose are subject to a qualified privilege.  But they do not enjoy an absolute privilege as the trial judge had held. (See prior posting.)  For further background on the case, see the discussion last year at Volokh Conspiracy.

US Imposes Sanctions on 2 More Iranian Officials For Human Rights Violations

Last week, the U.S. Treasury and State Departments announced the designation of two additional Iranian officials as being responsible for or complicit in serious human rights abuses in Iran since June 2009.  The designation results in freezing assets of the officials, barring transactions with them by U.S. persons and the imposition of visa sanctions.  The two-- Abbas Jafari Dolatabadi, Tehran Prosecutor General, and Mohammed Reza Naqdi, commander of the IRGC’s Basij Forces-- join 8 others named in an executive order issued last September. (Background.)  One of the two added yesterday-- Mohammad Naqdi-- was identified by the U.S. Commission on International Religious Freedom in its annual report issued last year as being responsible for particularly severe violations of religious freedom.  In a release last week, USCIRF welcomed the action taken by State and Treasury.

Recent Articles of Interest

From SSRN:

• Tommaso Pavone, Redefining Religious Neutrality: Lautsi vs. Italy and the European Court of Human Rights, (February 16, 2011).
• Lance McMillian, Atticus Finch - Christian?, (Tennessee Law Review, Vol. 77, No. 1, 2010).
• Richard Schragger, The Relative Irrelevance of the Establishment Clause, (Texas Law Review, Vol. 89, p. 583, 2011).
• Mary Szto, Strengthening the Rule of Virtue and Finding Chinese Law in 'Other' Places: Gods, Kin, Guilds, and Gifts, (February 21, 2011).
• Ryan Keith Bach, The Lord Giveth: Christian 'Health Insurance', the Role of State Insurance Regulation, and the Aftermath of Kentucky v. Reinhold, (February 22, 2011).
• Gregory Engle, An Unholy Union? The Use of Religion in the Courtroom, (December 3, 2010).
• Brooke N. Walker, Unequal Application of RLUIPA's 'Equal Terms' Provision, (February 24, 2011).
• Robert Luther, Marketplace of Ideas 2.0: Excluding Viewpoints to Include Individuals, (Hastings Constitutional Law Quarterly, Vol. 38, p. 673, 2011).
• Julie A. Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, (Hastings Constitutional Law Quarterly, Vol. 38, p. 631, 2011).
• Danielle Keats Citron and Helen L. Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, (Boston University Law Review, Vol. 91, 2011).

From SmartCILP:

• Journal of Law and Religion, Vol 26, No. 1, 2010- 2011 has recently been issued. (Table of contents). Full text available online for Dohrman W. Byers, The Morality of Human Rights, A Secular Ground and Jeffrey M. Lipshaw, Can There Be a Religion of Reasons? A Response to Leiter's Circular Conception of Religious Belief.

From Bepress:

• Muslim World Journal of Human Rights, Vol. 7, Issue 2 (Jan. 2011) has been published online. (Full text of articles).

Recent Prisoner Free Exercise Cases

In Crump v. Unknown Patrick, 2011 U.S. Dist. LEXIS 16807 (WD MI, Feb. 18, 2011), a Michigan federal district court dismissed a Muslim inmate's free exercise, RLUIPA and equal protection claims. Plaintiff claimed that on two occasions he was mistakenly given pork meals and on a third occasion a food worker's neglect in changing gloves cross contaminated his food with pork. Among other things, plaintiff alleged that his prayers to Allah were not answered for 40 days because of his eating the pork products.

In Smith v. Sisto, 2011 U.S. Dist. LEXIS 17133 (ED CA, Feb. 15, 2010), a California federal magistrate judge recommended rejecting an inmate's claim that his rights under the Free Exercise and Establishment clauses were infringed when he was denied parole in part for failure to attend faith-based Alcoholics Anonymous or Narcotics Anonymous programs. The court found that the parole board, while mentioning the programs, did not indicate plaintiff was required to attend, and plaintiff never told the board that the programs conflicted with his religious beliefs.

In Koenig v. Maryland Division of Corrections, 2011 U.S. Dist. LEXIS 16992 (D MD, Feb. 22, 2011), a Maryland federal district court rejected a Mormon inmate's complaint that Mormons were not granted a full 90 minutes of religious services each week and that he was not permitted to retain more than four religious items.

In Newman v. Brandon, 2011 U.S. Dist. LEXIS 16976 (ED CA, Feb. 14, 2011), a California federal magistrate judge rejected plaintiff's claim that his free exercise and RLUIPA rights were violated when prison authorities spilled coffee on his Bible.

In Sanders v. Swarthout, 2011 U.S. Dist. LEXIS 17646 (ED CA, Feb. 22, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus application, finding that while the parole board discussed petitioner's participation in AA, it did not indicate he was required to participate in any faith-based substance abuse program to be eligible for parole. Also petitioner never told the parole board that his religious beliefs conflicted with participation in AA.

In Gordon v. County of Rockland, 2011 U.S. Dist. LEXIS 17305 (SD NY, Feb. 18, 2011), an inmate claimed that a jail chaplain distributed to the inmate population copies of two pamphlets defamatory to the Muslim faith. A New York federal district court dismissed the claim against the chaplain in her official capacity but allowed plaintiffs to proceed in their personal capacity free exercise claims and their claims of lack of administrative remedies in the jail.

Gingrich's 2012 Campaign Places More Emphasis On Religious Faith

Today's New York Times reports that as former House speaker Newt Gingrich gears up for a run for the 2012 Republican nomination for President, in his public appearances he is placing a new emphasis on religious faith.  The Times says that on the campaign trail, Gingrich will:

have to grapple with aspects of his life and career that could give pause to elements of the Republican primary electorate, including a lack of a well-established association with religious conservatives and attendant questions about his two divorces. So as he travels the country, he is striking two related notes: that the nation faces not just a fiscal crisis but also a loss of its moral foundation, and that his conversion to Catholicism two years ago is part of an evolution that has given him a deeper appreciation for the role of faith in public life.

ACLU Says High School Students Should Be Allowed To Post 10 Commandments On Their Lockers

According to WSLS-TV News, the ACLU of Virginia is supporting the right of Floyd County, Virginia high school students to post their personal views-- including copies of the Ten Commandments-- on their own school locker doors. Apparently Floyd County High School administrators removed copies of the Ten Commandments from lockers of members of the Fellowship of Christian Athletes under a school policy that requires school approval for postings on lockers other than messages such as "happy birthday" or "go team." The ACLU's e-mail to the school principal on Friday (quoted in full in the WSLS-TV report) points out that "allowing students to express their religious views on their lockers is not the same as the school itself posting the Ten Commandments or other religious documents." The ACLU says that the 1st Amendment bars the school from treating students' religious speech less favorably than other forms of speech.

Afghanistan Releases Man Jailed For Converting To Christianity

AP reports that in Afghanistan earlier this week, Sayed Mussa, who had been held in jail for nine months on charges of converting to Christianity, was released. After a campaign on his behalf by Christian activists and international diplomats, prosecutors determined that they did not have enough evidence to charge Mussa. U.S. officials say that Mussa is now safely out of Afghanistan.

Warsaw Convention Pre-Empts Religious Discrimination Claim Against Foreign Airline

In Sewer v. LIAT (1974) Ltd., (D VI, Feb. 16, 2011), a Virgin Islands federal district court held that the Warsaw Convention pre-empts a claim brought by a Virgin Islands citizen against a foreign airline for alleged discriminatory exclusion of plaintiff from a flight originating in the British Virgin Islands.  Plaintiff, a black West Indian Rastafarian who wears dreadlocks alleged that Liat airlines discriminated against him on the basis of race, origin and beliefs. The court concluded that Liat's bumping of Sewer from his flight to Antigua was based on neutral selection criteria. It went on to hold that even if there was discrimination, the only remedy is under the Warsaw Convention, and that document gives no claim to plaintiff because there was no "accident" and no bodily injury alleged. Today's Antigua Observer reports on the decision.

Federal Court Says Utah's Reformation of FLDS Trust Violates Establishment Clause

In a surprising decision yesterday, a Utah federal district court held unconstitutional the five years of state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust. Utah courts have attempted to carry out the reforms using non-religious neutral principles of law.  The Trust holds title to property on which FLDS members live. The reformation proceedings grew out of a 2005 petition by the Utah and Arizona Attorneys General asking a Utah state court to remove or suspend the UEP trustees who failed to defend the trust against tort lawsuits.  (See prior posting.) In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Wisan, (D UT, Feb. 24, 2011), the Utah federal district court held:

By reforming a religious trust and managing it without regard to religion, the state actors became impermissibly entangled with religion. While it is accurate to say the states' actions did not establish a religion, their actions certainly went a long way toward disestablishing one.... The primary effect of the state court's decision to rewrite the Trust and administer it as a secular instrument was to inhibit religion. The resulting intrusion into the everyday life of the FLDS church and its members fostered not only "excessive government entanglement with religion," but was a virtual takeover by the state.

Judge Dee Benson observed that attempting to separate the secular parts of the UEP Trust from the religious parts is like trying "to eliminate football from the Super Bowl."  While much of the attention given to the case has stemmed from the polygamous practices of the FLDS Church and its leaders, the court said:

While it is true the state court judge in reforming the Trust recognized that the FLDS church practiced polygamy, which is illegal, and that the Special Fiduciary would not in any manner be allowed to make Trust administration decisions on the basis of polygamist practices, the state judge nowhere based her decision to reform or administer the Trust on a finding that it was being used to commit or support criminal activity.

Deseret News reports on the decision.

Maryland Senate Approves Same-Sex Marriage Bill

The Maryland state Senate yesterday passed the Civil Marriage Protection Act (SB 116), by a vote of 25-21. The bill authorizes same-sex marriage in the state, and provides that clergy may not be required to solemnize marriages in violation of their free exercise of religion.  The bill also exempts religious organizations from provisions calling for non-discrimination in public accommodations and insurance when they refuse on religious grounds to provide facilities, services or benefits for same-sex marriages. The bill now goes to the House of Delegates where, according to yesterday's Washington Post, its prospects for passage are uncertain. Opposition to the bill has come particularly from the Maryland Catholic Conference and from members of the state's black churches.

Refusal To Delay Civil Trail For Plaintiff's Religious Observance Was Abuse of Discretion

In Neustadter v. Holy Cross Hospital of Silver Spring, Inc., (MD Ct. App., Feb. 24, 2011), Maryland's Court of Appeals-- the state's highest court-- held that a trial court abused its discretion when it refused to suspend a civil medical malpractice trial for two days when plaintiff and his attorney could not attend because of religious obligations imposed by the Jewish holiday of Shavuot.  During their absence, defendant  put on its entire case in chief. The majority opinion, without reaching constitutional free exercise claims, held that the trial court abused its discretion in denying plaintiff a reasonable accommodation of his religious beliefs to permit him to participate in his trial. While plaintiff had delayed informing the trial court of the scheduling conflict, the majority held that plaintiff was not so untimely as to indicate an utter lack of diligence.

A concurring opinion by Judge Harrell, joined by Judge Murphy, engaged in a lengthy analysis of the free exercise issues involved in the case-- rejecting plaintiff's free exercise claim-- while nevertheless saying that the majority was correct in not reaching the constitutional issues.  The concurrence concluded that:

the judge’s denial of Petitioner’s motions to postpone the trial was the judicial analog to a generally-applicable legislative act, in that there is no evidence in the record from which one could conclude that the judge’s ruling would have been any different if faced with nonreligious justifications for the requested postponement.... Petitioner was free to celebrate Shavuot as he deemed fit; the trial court did not compel his presence in court in violation of the Jewish faith. Accordingly ... I do not think a "substantial burden" was placed upon his Free Exercise rights.

The concurrence went on however to find an abuse of discretion because "the facts in evidence ... do not support the proffered rationales for denying Petitioner's motions to postpone the trial."

A second concurrence by Judge Adkins argues that the court should reach the constitutional issues presented and should conclude that because the trial court's action was neutral and of general applicability, no heightened scrutiny was called for.  She agreed, however, with the majority's analysis of the trial court's abuse of discretion. She added: "I would not address the intriguing issue Judge Harrell raises of whether the Free Exercise clause is 'applicable with equal force to the judicial branch.'" (See prior related posting.) The Baltimore Sun reports on the decision.

Iraqi Supreme Court Interprets Constitutional Provision Barring Laws From Violating Settled Rulings of Islam

An op-ed published on Jurist earlier this month discusses a little-noticed decision handed down last December by Iraq's Federal Supreme Court which for the first time interpreted the provision in Iraq's Constitution (Art. 2) prohibiting civil laws from violating "settled rulings" of Islam.  At issue was a provision in Iraq's Law of Evidence requiring contracts over a certain amount to be proved by showing a writing.  The lower court had refused to accept oral evidence of the existence of a construction contract. Appellant claimed that requiring a writing was inconsistent with sharia, and thus invalid. The Federal Supreme Court, instead of merely holding that there was no "settled ruling" against requiring written contracts, engaged in its own interpretation of the Qur'an, citing two verses which it said supported requiring a written document. Haider Ala Hamoudi, writer of the op-ed, suggests that while Islamic religious authorities were not exercised by the Court's interpretation of religious law here, it would be very different if the Federal Supreme Court challenged religious authorities on core matters such as women's divorce rights.

Canadian Street Preacher Convicted For Using Sound Amplification System

In the Canadian province of Alberta, the Calgary Court of Queen's Bench yesterday reversed a provincial court's dismissal of charges against street preacher Artur Pawlowski who violated city park rules by using a sound amplification system. (See prior posting.) According to the Calgary Herald, the court rejected the argument that the ban on amplification systems was vague and overly broad. Justice Robert Hall wrote:

I am . . . satisfied that the intention of the bylaw is not to restrict the use of such items as hearing aids, cellphones, iPods or transistor radios within a park, none of which affect the safety, accessibility and enjoyment of the parks by the general public. The only reasonable interpretation of this section, when viewed in harmony with the scheme and object of the bylaw, is that it is intended to prohibit noise amplified to such an extent as to interfere with the enjoyment of the park by other users.

The court apparently also rejected arguments that the ban violated Pawlowski's freedom of expression and religion protected by the Charter of Rights and Freedoms in imposing penalties on Pawlowski.

Defendant Pleads Guilty To Hate Crime Against Mosque Playground

A Department of Justice press release reports that yesterday in a Fort Worth, Texas federal district court, Henry Clay Glaspell pleaded guilty to a hate crime charge growing out of his setting fire to playground equipment at an Arlington, Texas mosque.  The arson was part of a series of ethnically motivated acts directed at persons associated with the mosque who were of Arab or Middle Eastern descent. Glaspell also admitted that he stole and damaged mosque property, threw used cat litter at the front door of the mosque, and shouted racial or ethnic slurs. Sentencing is set for July 11.

Tennessee Legislators Propose Elaborate Anti-Sharia Bills

The most elaborate example yet of an anti-Sharia bill was introduced last week in the Tennessee House and Senate.  The Tennessean reports that SB 1028 (full text), and the identical HB 1353, were filed on Thursday to meet the deadline for introducing bills for the current session of the legislature, and that they may yet be amended.  The bills outlaw providing material support to any organization that the state Attorney General designates as a "sharia organization." The bill declares that it is not directed at the peaceful practice of Islam.  Instead it is premised, among other things, on the bill's declaration that "Sharia requires all its adherents to actively and passively support the replacement of America’s constitutional republic, including the representative government of this state with a political system based upon sharia." The 20-page bills, introduced by State Sen. Bill Ketron, R-Murfreesboro, and state Rep. Judd Matheny, R-Tullahoma, were drafted by David Yerushalmi, an Arizona attorney who heads the Society of Americans for National Existence. Critics say the bills are based on a complete misunderstanding of sharia law.

Group Challenges Religious Display In County Official's Office

Up North Live reports that a letter from the Freedom from Religion Foundation to the Cheboygan County, Michigan Drain Commissioner raises questions about the propriety of religious displays in the private offices of government officials.  FFRF objects to a cross and a nativity scene in Commissioner Dennis Lennox's office.  Lennox objects saying: "This is my private office in my private area, I'm not trying to force my faith down anybody's throat, I'm just saying I celebrate Christmas."

FBI Sued For Planting Informant In California Mosques

ACLU of Southern California announced yesterday that a class action lawsuit has been filed against the FBI for planting an informant in Orange County, California mosques.  Informant Craig Montielh gathered information for 14 months in 2006 and 2007, posing as a convert to Islam. He was told to focus on those who were more devout in their religious practices. The lawsuit alleges that targeting Muslim Americans amounts to religious discrimination and asks for the FBI to turn over or destroy all information gathered through the investigation.  The suit also seeks damages for emotional distress for three named plaintiffs.In addition to the ACLU, the Greater Los Angeles Council for American-Islamic Relations and a private law firm were involved in filing the suit. (See prior related posting.)

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).