Montana Supreme Court Stays Order Requiring Surgery Over Woman's Religious Objections

The Montana Supreme Court last week ordered a stay and expedited appeal of a trial court's order that a woman with cancer undergo surgery despite her religious objections. In Office of State Public Defender on Behalf of L.K. v. Montana Fourth Judicial District Court, (MT Sup. Ct., March 2, 2011), the Supreme Court explained:

During a hearing conducted on March 1, 2011, the District Court determined that L.K. is not competent to make her own medical decisions and directed that she undergo a radical hysterectomy on March 3, 2011, against her desires. L.K. objects to the surgery on religious grounds, and expert testimony admitted at the hearing indicated that her religious objections are delusional.

Reporting on the case today, the Helena Independent Record says that at trial a doctor and a psychiatrist testified that L.K. believed that God had cured her.  Doctors say the woman's cancer could kill her within three years. L.K. testified however that she understands she had been diagnosed with cancer and understands the risks of death if she does not have the surgery. The appeal will argue that the trial court's order violates L.K.'s constitutionally protected rights of personal autonomy and religious freedom.

White House Advisor Reassures US Muslims In Advance of Congressional Hearing on Radicalization

In advance of Thursday's scheduled hearings by the House Homeland Security Committee chairman Pete King (R-NY) on radicalization of American Muslims (see prior posting), the White House is seeking to reassure Muslims.  The New York Times reports that Dennis McDonough, White House deputy national security adviser, yesterday delivered an important speech at the All Dulles Area Muslim Society (the Adams Center) in Sterling, Virginia. McDonough spoke out against stigmatizing an entire community because of the actions of a few and said: "In the United States, we don't practice guilt by association." He told the audience: "When it comes to preventing violent extremism and terrorism in the United States, Muslim Americans are not part of the problem, you’re part of the solution." While angry about the hearings, leaders of mainstream mosques plan to participate to testify about their cooperation with law enforcement officials. Minnesota Rep. Kieth Ellison, the only Muslim in Congress, said he would testify even though he thinks it wrong for Congress to investigate a particular religious group.

Recent Articles Of Interest

From SSRN:

• Rafael Palomino, Legal Dimensions of Secularism: Challenges and Problems, (17th Annual International Law and Religion Symposium, (Brigham Young University, Provo, Utah, October 3-5, 2010).
• Adam Farra, Theories of Discrimination and Gay Marriage, (Maryland Law Review Endnotes, Vol. 69, p. 1, 2010).
• Amin George Forji , Just Laws Versus Unjust Laws: Asserting the Morality of Civil Disobedience, (Journal of Politics and Law, Vol. 3, No. 2, pp. 156-170, 2010).
• Ihasan Yilmaz, Radical Muslim Politics from Comparative Perspective: Theological Deprivation as the Major Source of Hizb Ut-Tahrir’s Influence, (Uluslararası Hukuk ve Politika Cilt 6, Sayı: 23 ss. 99-117, 2010).
• Mohammad Omar Farooq, Islam and Democracy: Perceptions and Misperceptions, (February 28, 2011).

From Bepress:

• Whiting, Amanda J. Whiting, Secularism, the Islamic State and the Malaysian Legal Profession, (Asian Journal of Comparative Law: Vol. 5 : Iss. 1, Article 10, 2010).

Recent Prisoner Free Exercise Cases

In Brown v. Secretary, Department of Corrections, 2011 U.S. Dist. LEXIS 19207 (MD FL, Feb. 25, 2011), a Florida federal district court rejected an inmate's free exercise and equal protection challenges to the failure to provide services for Nation of Islam inmates separate from Muslim services.

In Paliotta v. Brooks, 2011 U.S. Dist. LEXIS 19381 (D NV., Feb. 25, 2011), a Nevada federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 18943, Feb. 3, 2011) and dismissed on claim preclusion grounds an inmate's complaint that those housed in administrative segregation do not have equal access to religious services and religious property.

In Robinson v. Delgado, 2011 U.S. Dist. LEXIS 21218 (ND CA, Feb. 17, 2011), a California federal magistrate judge ordered the award of $220,791 in attorneys' fees and $47,482 in costs in a case in which an inmate who had become a member of the House of Yahweh Yadhaim obtained an injunction ordering prison authorities to permit him to participate in the prison's Jewish kosher meal program-- even though he is not Jewish.  The kosher meals satisfied plaintiff's religious dietary requirements.

2011 White House Easter Egg Roll Set

The White House announced Friday that this year's White House Easter Egg Roll will be held on April 25.  The theme will be "Get Up and Go!"  Activities will encourage children to lead a healthy and active life style. Tickets will be distributed through an online lottery system to children 12 and under and their families. According to Recreation.gov:

Originally young children in Washington, D.C. would flock to Capitol Hill every Monday after Easter for egg rolling and a day of activities. Members of Congress grew tired of the growing crowds and passed an Act of Congress which prohibited egg rolling on the Capitol grounds. The event was moved to the White House in 1878 after President Hayes was approached by young children to use his backyard to roll eggs. Nearly every Easter since, the White House has invited young children to roll eggs on the White House lawn. Today, the Easter Egg Roll is the largest public event held at the White House.

Church Dispute Dismissed To Keep Court Out of Deciding Church Doctrine and Governance

In Retta v. Mekonnen, (TX App., March 3, 2011), the Texas Court of Appeals dissolved a temporary injunction that had been issued by a Dallas trial court. The appeals court concluded that the trial court lacked jurisdiction to issue the injunction because the dispute requires the determination of religious doctrine and church governance. At issue was an amendment to the bylaws of the Ethiopian Orthodox Tewahedo Debre Meheret St. Michael's Church in Dallas adopted by its trustees providing that a $30 per month contribution was required to retain membership.  Individuals who were disqualified from membership under the new bylaw sued claiming that the trustees who adopted the new bylaw had not been properly elected.  At plaintiff's request, the trial court had issued an injunction ordering church trustees (1) not to prohibit anyone from entering the church and peaceably participating in worship services; (2) not to forcibly remove anyone from services without first asking them to leave; (3) to limit those asked to leave to anyone causing an actual disruption of services; and (4) to preserve church records, documents and recordings.

UPDATE: A similar result was reached in a case involving the same defendants, but different plaintiffs, asserting similar claims. Fesseha v. Ethiopian Orthodox Tewahedo Dere Neheret St. Michael's Church in Dallas, (TX App., July 12, 2011).

Speaker Moves To Have House of Representatives Defend DOMA In Court

House Speaker John Boehner announced Friday that he was taking steps to have the House of Representatives intervene to defend the Defense of Marriage Act now that the President and the Attorney General have said that the Administration will not defend its constitutionality in court. (See prior posting.)  Boehner said he will convene the 5-member Bipartisan Legal Advisory Group which has the authority to instruct the House General Counsel to take legal action on behalf of the House. The New York Times yesterday reported on Boehner's action.

Clergy Group Supports Proposed Colorado Civil Unions Bill

With the first hearings set for Monday in the Colorado Senate on Senate Bill 172 that would permit same-sex civil unions, a group of 130 clergy have announced their support for the bill. A KWGN News report yesterday quotes Rabbi Joe Black, one of three leaders from different faiths representing the bill's supporters, who said:

You're going to be hearing opposition to this bill from faith communities. And we just wanted you to know that that's not the only voice that is out there.... For too long the loudest voice from the religious community in regard to GLBT community has been that of condemenation and denunciation -- and that needs to change.

United Methodist Rev. Kerry Greenhill echoed those sentiments, saying: "God loves all people equally as children of God. It is not a sin to be GLBT." The bill, while permitting civil unions, provides that no member of the clergy is required to certify a civil union in violation of their free exercise of religion and no child placement agency is required to place a child for adoption with a couple that has entered a civil union.

Indonesian Provinces Place New Restrictions on Ahmadiyah

In Indonesia, the governor of the province of West Java yesterday issued a gubernatorial regulation (No. 12 of 2011) banning all public activities by the 17,000 members of the Ahmadiyah sect in the province.  Today's Jakarta Globe reports that the action is seen as implementing an Indonesian 2008 joint ministerial decree that bars the Ahmadiyah from spreading their faith. (See prior posting.) The West Java regulation prohibits the Amidaiyah from spreading their beliefs orally, in writing or through electronic media. It requires that all signs identifying mosques, schools or other facilities as Ahmadiyah be taken down. Ahmadiyah mosques are declared as mosques open to all Muslims and religious authorities will organize Muslim events at the mosques. However the regulation also prohibits individuals outside the Ahmadiyah community from carrying out unlawful action against them, hoping to prevent violence against Ahmadiyah which has occurred in the past.  Instead the public is supposed to report any violations of the new regulation to authorities. East Java issued a similar regulation earlier this week and, according to the Jakarta Post, South Sulawesi issued a similar decree yesterday. Many Muslims consider the Ahmadiyah heretical because they do not believe that Muhammad was the last prophet.

Military Backs Off Equal Support For Non-Religious Rock Concert

Last September, the U.S. Army base at Ft. Bragg (NC) hosted the controversial "Rock the Fort" concert sponsored by the Billy Graham Evangelistic Association.  Groups such as Americans United complained that the concert was designed to proselytize soldiers and community members. (See prior posting.) In response to complaints, military authorities said they would give a comparable level of support to concerts sponsored by non-Christian groups. So secularists planned a "Rock Beyond Belief" concert that would feature noted British atheist Richard Dawkins as a keynoter and would include remarks from Mikey Weinstein of the Military Religious Freedom Foundation. However, according to a report yesterday from AP, concert organizers (who include Sgt. Justin Griffith) have now called off their plans because the Army is not giving them the same level of support as it did to last year's Christian event. Authorities are requiring that the concert take place at one of two indoor theaters rather than allowing a large outdoor event with games and activities. Also the base refuses to cover any of the expenses of the concert, even though it spent $54,000 toward the cost of Rock the Fort. Finally authorities said any concert ads would be required to carry a disclaimer indicating that Ft. Bragg was not endorsing th event, even though it did endorse Rock the Fort. MMRF's Weinstein said his group plans to file suit over Ft. Bragg's actions.

UPDATE: God and Country blog carries a posting giving the Army's side of the story on the issue.

Fired Prison Chaplain Settles Her Claim Against Minnesota

Yesterday's Minneapolis Star Tribune reports on a settlement that has been reached in a lawsuit filed by a former Minnesota prison chaplain who says she was fired for speaking out against the state's use of the InnerChange Freedom Initiative program which she believed would violate the Establishment Clause by promoting evangelical Christianity. (See prior posting.) State prison officials deny that this was their reason for firing Presbyterian minister Kristine Holmgren. They say it was because of a change in the classification of her job.  Under the settlement, Holmgren will receive $227,500.  However the controversial InnerChange program continues to operate in two Minnesota prisons.

Designer Galliano To Be Charged By French Prosecutors Over Anti-Semitic Statements

Fashion designer John Galliano, fired by Christian Dior for making anti-Semitic remarks during an argument at a Paris bar (background), will be placed on trial by French authorities on charges of inciting racial hatred. Yesterday's New York Times reports that the trial which will take place between April and June could lead to $31,000 (US) in fines and up to six months in prison. Through his London Lawyer's office yesterday, Galliano apologized for his remarks. He has left France to enter an alcohol rehabilitation program. Meanwhile, according to the Huffington Post last week, Galliano has filed a defamation action against the couple accusing him of making the anti-Semitic remarks.

New York City Passes Law Requiring Disclosures By Crisis Pregnancy Centers

The New York Times reports that yesterday New York City Council passed Int. No. 371 which requires crisis pregnancy centers that do not provide abortion or contraceptive services to disclose these facts (in Spanish and English) on a sign in their waiting room, on their website and in any ads. They must also disclose on a waiting room sign that licensed medical providers are not available, where that is the case. The bill passed council by a vote of 39- 9 with one abstention, and a spokesperson for Mayor Michael Bloomberg says the mayor will sign the bill.  Opponents of the bill say it is an unconstitutional regulation of speech. A federal district court in Maryland recently struck down a similar Baltimore ordinance, finding that it is a viewpoint based regulation. (See prior posting.)  The director of the New York Civil Liberties Union, however, defended the New York City bill as one directed at preventing deceiving women into thinking they have been to a doctor when employees who offer ultrasound exams are dressed in medical scrubs. [Thanks to Scott Mange for the lead.]

Suit Challenges Prayer At Vermont Town Meeting

The ACLU of Vermont reported yesterday that it has filed suit in state court on behalf of a resident of Franklin, Vermont challenging the town's practice of incorporating a Christian prayer as part of the annual town meeting at  which town officers are elected and other public business conducted. The complaint (full text) in Hackett v. Town of Franklin, (VT Super. Ct., filed 3/1/2011), alleges that the prayer violates Chap. I, Art. 3 of the Vermont Constitution that provides no person can be compelled to attend any religious worship contrary to dictates of conscience. The complaint also alleges that the invocation violates the state's public accommodations act by refusing to permit plaintiff to avail herself of the town meeting on equal terms with others because of her religious beliefs.  The ACLU's website includes audio recordings off the prayers at issue. WCAX yesterday reported on the lawsuit.

In Turkey, Minority Religious Groups Face Obstacles In Opening Places of Worship

Forum 18 reported yesterday on the continuing problems faced by minority religious communities in Turkey in establishing and maintaining formally recognized places of worship. The most significant problem is that of the large Alevi community who want their cemevi to be formally recognized by the state as houses of worship. (See prior related posting.) The ruling AKP party is working on a solution. Also the Caferi-- who are closer to Shia Islam-- want their own mosques and clergy.  Currently only the state-run Diyanet-- which is Sunni controlled-- can open mosques and administer them. Various Christian groups are also facing problems in opening or maintaining their places of worship. While these various groups can have informal places of worship, without recognition they do not get various tax exemptions. Also calling non-recognized buildings houses of worship can lead to prosecution.

Amendments Proposed To Kentucky Anti-Bullying Bill To Protect Anti-Gay Language

Last month, six members of Kentucky's House of Representatives introduced HB 370, a bill that would require school discipline codes to prohibit bullying and cyberbullying directed at a student's race; religion; national origin; ancestry or ethnicity; sexual orientation; physical, mental, emotional, or learning disability;  gender; gender identity and expression; or other distinguishing personal characteristic. (Legislative history.)  Last week, two legislators introduced amendments to the bill designed to protect religiously motivated anti-gay speech. One of the amendments would provide that school discipline codes may not "prohibit any student from expressing ... personal religious beliefs so long as that expression does not include physically harming a student or damaging a student's property". An alternative proposed amendment provides: "Nothing in this Act shall be construed to prohibit or deny the civil expression by any student of religiously based opinions on issues related to sexual orientation." WHAS reports that after being reported out of committee, the bill is now stalled in the House.

Plaintiffs Lack Standing To Challenge Procedure For Omitting Social Security Numbers In Drivers Licence Applications

In Baer-Stefanov v. White, 2011 U.S. Dist. LEXIS 19139 (ND IL, Feb. 25, 2011), an Illinois federal district court dismissed for lack of standing a challenge to provisions in Illinois' drivers license law that set up procedures for obtaining a religious exemption so an applicant can obtain a license without furnishing a social security number.  Plaintiffs' personal religious beliefs prevent them from using social security numbers because they consider the numbers the mark of the beast prohibited by Revelations 13. However plaintiffs were informed by an attorney in the Secretary of State's office that an exemption would be granted only if an applicant submitted a state form signed by a religious leader who attested that use of a social security number was barred by the beliefs of  his or her religious sect and that the applicant was a member of that sect. Plaintiffs never actually applied for a license because their religious sect leaves beliefs regarding social security numbers to the individual consciences of members. Instead plaintiffs sued alleging that the limitation on the availability of the exemption violated their free exercise and equal protection rights. The court held that because plaintiffs never applied for a religious exemption, and thus have not been denied one, their injury is only threatened, not actual. Had they applied, the Secretary of State might have exercised discretion to treat individual religious convictions the same as beliefs of an entire sect.

Westboro Responds To Its Supreme Court Win

ABC News reports on the less than gracious response of Margie Phelps, lead counsel for Westboro Baptist Church, to her win today in the Supreme court. (See prior posting.)  Phelps, daughter of the church's pastor, said of the protests that the Supreme Court found protected by the 1st Amendment:

We are trying to warn you to flee the wrath of God, flee the wrath of destruction. What would be more kind than that.... Shut up all that talk about infliction of emotional distress. When you're standing there with your young child's body bits and pieces in a coffin you've been dealt some emotional distress by the Lord your God.... I very much appreciate the fact that I get to be the mouth of God in this matter.

Church leaders say they now plan to quadruple the number of protests around the country that they carry out.

Pakistani Cabinet Member Assassinated Over His Opposition To Blasphemy Law

CNN reports that Shahbaz Bhatti, Pakistan's minister of minority affairs, was assassinated today.  The Taliban claimed responsibility for the fatal shooting of Bhatti, the only Christian member of Pakistan's cabinet.  A Taliban spokesman said that the assassination "is a message to all of those who are against Pakistan's blasphemy laws." Bhatti has been an outspoken critic of the use made of Pakstan's blasphemy ban, saying presciently: "I am ready to sacrifice my life for the principled stand I have taken because the people of Pakistan are being victimized under the pretense of blasphemy law." Dawn has more details on the shooting that took place while Bhatti was being driven to work in Islamabad.

Supreme Court Rules In Favor of Westboro Baptist Church Anti-Gay Funeral Picketers

The U.S. Supreme Court today ruled in an 8-1 decision that Westboro Baptist Church and its members are shielded by the First Amendment from tort liability for their picketing of the funeral of Marine Lance Corporal Matthew Snyder who was killed in Iraq.  Westboro pickets military funerals around the country, often carrying sings criticizing U.S. tolerance for homosexual conduct.  In Snyder v. Phelps, (Sup. Ct., March 2, 2011), the majority, in an opinion written by Chief Justice Roberts, overturned the jury's verdict that had found for Snyder's father on his claims for intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. Here are some excerpts from the majority opinion:

The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment.... The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.”... While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import....

The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society....

Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.”...

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interferencewith the funeral itself. A group of parishioners standingat the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages....

Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral.... Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.

While joining the majority opinion, Justice Breyer also filed a concurring opinion emphasizing his understanding that there might be some situations outrageous enough that a state could permit recovery for intentional infliction of emotional distress for a verbal assault, even when it was launched to call attention to views on a matter of public concern.

Justice Alito was the sole dissenter. In his opinion, he argued that while Westboro members have many means to express their views:

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.

Justice Alito emphasized the publicity seeking nature of Westboro's picketing strategy and focused on Westboro's post-funeral Internet posting that went beyond comments on matters of public concern and also attacked the Snyders personally.

The New York Times reports on the decision.

White House Faith-Based Office Hosts Conversation On Support For Military Families and Veterans

The White House Office of Faith-Based and Neighborhood Partnerships yesterday described a meeting it hosted last week exploring ways in which congregations and faith- and community-based organizations can support military families and veterans.  Representatives of local and national groups joined representatives from the Defense and Veterans Affairs Departments and the First Lady's Office in a four hour conversation aimed at expanding available tools.

7th Circuit Upholds Injunction Permitting "Be Happy, Not Gay" Slogan on Student Clothing

In Zamecnik v. Indian Prairie School District #204, (7th Cir., March 1, 2011), the U.S. 7th Circuit Court of Appeals upheld a trial court's entry of a permanent injunction permitting any student at a Naperville, Illinois high school  to display on clothing or personal items the slogan "Be Happy, Not Gay."  It also affirmed the trial court's award of damages of $25. The school had attempted to ban students from wearing the slogan on T-shirts under a rule that barred derogatory comments that relate to race, ethnicity, religion, gender or sexual orientation or disability.  The 7th Circuit had previously ordered the district court to enter a somewhat narrower preliminary injunction. (See prior posting.) The school now argued that it should have been entitled to a hearing to show that it had a reasonable belief it faced a threat of substantial disruption before a permanent injunction was entered. The 7th Circuit disagreed. The court relied in part on the "heckler's veto" doctrine-- that speech cannot be suppressed merely because those who disagree with it engage in threats or violence. Alliance Defense Fund yesterday issued a release discussing the decision.

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.