Suit Seeks to Bring Building Under Religious Exception In Historic Preservation Law

In Peoria, Illinois, according to yesterday's Peoria Journal, the Westminster Presbyterian Church has filed a state court lawsuit seeking to invoke a change made in February in the city's historic preservation ordinance. The ordinance was amended to exclude buildings used primarily for religious ceremonies or to further the religious mission or business of the owner.  The church wants to tear down Westminster House, built as a dwelling, but used for 25 years until 2006 as the regional office of the Presbyterian Church.  Now to bring the unused building under the preservation ordinance exception, beginning March 9 the church started holding weekly men's fellowship prayer meetings in the building.  The complaint (full text) in Westminster Presbyterian Church v. City of Peoria, Illinois, (IL Cir. Ct., filed March 21, 2011), seeks a declaratory judgment that the fellowship meetings are sufficient to qualify Westminster House for the religious use exemption. It also asks for a writ of mandamus requiring the inspections department to issue a demolition permit.

Senate Judiciary Subcommittee Schedules Hearings On Civil Rights of American Muslims

U.S. Senator Dick Durbin (D-IL), Chairman of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, has scheduled a hearing on March 29 on civil rights of American Muslims. (Press release). Witnesses will include Muslim civil rights leader Farhana Khera; Cardinal Theodore McCarrick; Assistant Attorney General for Civil Rights Tom Perez; and Bush administration Assistant Attorney General Alex Acosta. Durbin's office says: "The hearing is in response to the spike in anti-Muslim bigotry in the last year including Quran burnings, restrictions on mosque construction, hate crimes, hate speech, and other forms of discrimination."

Church Leaders, Parents Charged With Child Abuse In "Biblical Punishment" of Their Children

The Superior (WI) Telegram yesterday reports that the leaders of a Black Earth, Wisconsin church have been charged with child abuse for using wooden spoons and dowels to hit the backsides of children in their family and in the families of other church members. Philip Caminiti, head pastor and elder at Aleitheia Bible Church, and his brother, John Caminiti, say that the Bible calls for using this kind of punishment on children-- apparently referring to Proverbs 13:24. The pastor instructed parents on how to use rods to spank their children.  Three other couples who are members of the church have been subpoenaed by the Dane County (WI) Circuit Court on charges of being parties to intentional abuse of their children.

US Embassy In Pakistan Condemns Florida Pastor's Burning of Qur'an

The U.S. Embassy in Pakistan issued a statement (full text) yesterday saying that it: "condemns the burning of a copy of the Holy Koran in the State of Florida, United States. This is an isolated act done by a small group of people that is contrary to American traditions. It does not reflect the general sentiment of respect toward Islam by the people of the United States." The statement refers to action taken last Sunday by controversial pastor Terry Jones of the Dove World Outreach Center in Gainesville. (See prior posting.) According to WFTV News, Jones conducted a 6-hour mock trial of the Qur'an at his church before 30 people and a film crew. Finding the Qur'an guilty of promoting violence, he burned it. Despite the fact that Jones' activity received little publicity, Pakistan's president Asif Ali Zardari condemned it during a televised address to the federal parliament yesterday.The Pakistani foreign ministry also condemned the burning, saying it has deeply hurt the feelings of Muslims around the world.

U.K. Court Says Scriptural Ad Against Gay Pride Parade Did Not Violate Advertising Code

A High Court judge in Belfast, Northern Ireland, has overturned a decision by the U.K.'s Advertising Standards Authority that an ad run by the Sandown Free Presbyterian Church opposing a 2008 gay pride parade violated the ASA's advertising code. At issue is an ad captioned: "The Word of God Against Sodomy." ASA ruled that the ad should not appear again in its current form because it violated a provision of the advertising code that bars ads likely to cause serious or widespread offence on the basis of sexual orientation. (See prior posting.) According to BBC News yesterday, the high court rejected that conclusion, writing in part:

The applicant's religious views and the Biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Article 10 (of the European Convention on Human Rights) protects expressive rights which offend, shock or disturb.

Moreover, Article 10 protects not only the content and substance of information but also the means of dissemination since any restriction on the means necessarily interferes with the right to receive and impart information.

The court noted that the ad did not condone violence and was a genuine attempt to defend the church's religious beliefs.

Illinois Appeals Court Upholds Sanctions In Husband's Challenge To Order Requiring Jewish Divorce Document

In Schneider v. Schneider, (IL App., March 15, 2011), an Illinois appellate court upheld the trial court's award of attorneys' fees as a sanction under Illinois Civil Rule 137 (the equivalent of Federal Rule 11) to a divorced wife who succeeded in her lawsuit to force her husband to issue her a Jewish divorce document (a "get"). The trial court, relying on a 1990 Illinois appellate court decision [Lexis link], had issued an order directing the husband to secure a "get" for his wife. The husband argued that the1990 case was inapplicable, reiterating the argument in six different pleadings even though the court trial court rejected the claim.

Dispute Over Ouster of Mosque Trustees Reignites Debate Over U.S. Courts Applying Shariah Law

A case in Tampa, Florida has re-ignited debate over the application of Shariah law by U.S. courts. The unusual procedural posture of the case has a Tampa mosque arguing against Florida courts applying religious law, while former trustees of the mosque are arguing in favor of using religious law.

As best as can be pieced together from a report in yesterday's St. Petersburg Times, four individuals claim that in 2002 they were improperly removed as trustees of the Islamic Education Center of Tampa. The board make-up is particularly contentious because the mosque has $2.2 million it received in an eminent domain proceeding when the state took some of its land to build a road. The ousted trustees filed a lawsuit against the other trustees of the mosque challenging the validity of their actions that purported to remove plaintiffs from the board. However apparently all the parties agreed that if the lawsuit was dismissed by the state court, the dispute would be submitted to arbitration by an "A'lim"-- a Muslim scholar trained in Islamic law. The suit was dismissed by the court, and in arbitration proceedings that followed, the A'lim ruled that the plaintiffs had been improperly removed.

Plaintiffs then filed another state court lawsuit against the mosque itself asking the court to enforce the arbitration ruling on the mosque and reinstate them as trustees. The court issued an oral interlocutory order during an evidentiary hearing on plaintiff's emergency motion to enforce the arbitrator's award. This was followed by a written order memorializing the court's ruling.  It is this order in Mansour v. Islamic Education Center of Tampa, Inc., (FL Cir. Ct., March 3, 2011) (full text) that has become controversial. In the suit to enforce the arbitration ruling, the mosque argued that the arbitration ruling was not binding on it because its board was never properly notified of the arbitration proceeding.  The mosque, as opposed to some or all of the individual defendants, did not participate in the arbitration.  So the court ruled that it would now proceed to determine "whether Islamic dispute resolution procedures have been followed in this matter."  In its order, the court recited that: "This case will proceed under Ecclesiastical Islamic law."

The mosque has filed an appeal of the trial court's order, arguing that Florida law, not Islamic law, should be applied by the civil courts.

Standing, Limited Preliminary Injunction Granted In Challenge To Santa Rosa County Consent Decree

The long-running litigation over religious practices in the Santa Rosa County, Florida schools continues. In 2009, the Santa Rosa County School Board entered into a consent decree, admitting widespread Establishment Clause violations. (See prior posting.)  Then a group of teachers, staff, former students, community members and clergy filed suit challenging the consent decree, claiming that it violates and chills their First Amendment rights. (See prior posting.)  In Allen v. School Board for Santa Rosa County, Florida, (ND FL, March 21, 2011), a Florida federal district court held that some of the plaintiffs have standing to challenge the consent decree, while certain others do not.  Finding that the need to explore factual issues precludes ruling on the merits based merely on allegations in the pleadings, the court indicated that a hearing would be scheduled for mid-summer. In the meantime, the court issued a preliminary injunction barring the school from enforcing that part of the consent decree that restricts school district employees from participating in private religious or baccalaureate services. Liberty Counsel issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Australian Commission Releases Report on Freedom of Religion In 21st Century

Yesterday the Australian Human Rights Commission released a 92-page report titled Freedom of Religion and Belief in 21st Century Australia.  Here are some excerpts from the Report's findings:

[T]here is strong support from all voices – whether religious, spiritual, secular or agnostic – for education about the religions, spiritualities and worldviews present in and affecting Australia.... The self-definition and religious character of Australia has been and remains a contentious issue, with various voices advocating Australia as a Christian nation, or as a secular nation, or as a multifaith plural nation.... Greater recognition of a wider range of spiritual communities in Australia, such as pagan and Indigenous beliefs, is needed....

Religious Australia is generally well-led by its leaders who understand the complexities of a complex civil society. There were, however, calls for comprehensive orientation training for clergy from overseas who are now serving in Australia, whose numbers are increasing....

Legislation was perhaps the biggest issue to emerge....  [D]istrust of and opposition to any legislative change was the strongest sentiment expressed[,] ... primarily to protect exemptions for religious groups from anti-discrimination legislation.... 

Significant distrust of Muslims and Islam was expressed by some. There were also reports of discrimination against Muslims and other religious minorities....

[C]oncern was expressed regarding the perceived growing influence of religious lobby groups in Australia, and their perceived influence in government policy-making and decisions. On the other hand, religious groups are concerned that religion is under threat from what was termed ‘aggressive secularism’, and that the role of religion and its contribution to the social and economic advancement of the community is undermined, and a lack of respect for faith and people of faith exhibited.

An important finding is that no religious group argued that it sought to make its religious law the law of Australia or of the individual states and territories. All saw their role as working within the constitutional framework of Australia.

Supreme Court Denies Review In Tax Case On Definition of "Church"

The Supreme Court today denied certiorari in Foundation of Human Understanding v. United States, (Docket No. 10-648, cert. denied 3/21/2011) (Order List). In the case, the U.S. Court of Appeals for the Federal Circuit held that the Foundation of Human Understanding, while retaining its 501(c)(3) non-profit status, did not qualify as a "church" for purposes of Sec. 170(b)(1)(A)(i) of the Internal Revenue Code.  The Circuit Court held that in order to meet the definition of a church, a religious organization must show that it has a body of believers who assemble regularly for communal worship. (See prior posting.)

Amish Alternative Bankruptcy Plan Would Violate Establishment Clause

 In re Beachy, (ND OH Bkrpt., March 18, 2011), involves an unusual intersection of the Establishment Clause with the federal Bankruptcy Code.  Monroe L. Beachy, a member of the Amish community, filed a bankruptcy petition in federal bankruptcy court in Ohio.  Beachy operated a securities firm that he ultimately turned into a Ponzi scheme, leaving investors with $33 million in claims against his $18 million in assets. Because both the debtor and the vast majority of investors are members of the Amish or Mennonite communities, a group from those communities proposed a Plain Community alternative plan to the bankruptcy proceedings. Plain Community members interpret the Bible as barring the use of civil courts to resolve financial disputes. Beachy asked the court to dismiss his bankruptcy petition and allow investors to proceed under the alternative plan. The court refused, saying:

The debtor in this case is clearly asking this court to delegate its function to a religious body. The motion to dismiss is conditioned on the court transferring estate funds to the Committee, which, according to the Committee's own filings, is a unit established by a church.... Any such delegation is forbidden by the Establishment Clause, regardless of the specific facts of a particular case.

The court rejected the argument that acceptance of the alternative plan was required by the Religious Freedom Restoration Act, saying that applying the Act in that way would violate the Establishment Clause. Moreover, in the court's view, the government has a compelling and narrowly tailored interest in an orderly and predictable bankruptcy system. The Dover- New Philadelphia (OH)  Times Reporter  discusses the decision. (See prior related posting.)

In Egypt, Big Win For Constitutional Amendments May Boost Muslim Brotherhood

The New York Times reported that 77.2% of Egyptian voters approved the country's proposed constitutional amendments in a referendum election held Sunday. 41% of all eligible voters turned out at the polls. Those in the more liberal wings of Egyptian politics say that the vote means early elections can be called. This favors the Muslim Brotherhood and former President Mubarak's party-- the only two parties that are well-organized at this point.  Opponents that urged a "no" vote on the constitutional amendments in order to give new parties more time to organize say that religious appeals played a part in the referendum election campaign. Some say that religious organizations told their followers that a vote against the proposed amendments would threaten Article 2 of the Constitution that provides for Islam as the official state religion and Islamic law as  the principal source of civil legislation. Reuters reports that many Egyptian Christians voted against the proposed amendments, fearing that rapid elections will encourage the rise to power of Islamist groups. Many Coptic Christians were disappointed that the proposed constitutional amendments do not eliminate Article 2 of the Constitution.

Ministerial Exception Does Not Bar Catholic High School Teacher's Age Discrimination Claim

In Hendricks v. Marist Catholic High School, (D OR, March 16, 2011), an Oregon federal district court refused to apply the ministerial exception to prevent a Catholic high school teacher from bringing an age discrimination claim after his teaching contract was terminated.  The court said that because plaintiff was neither an actual nor potential member of the clergy, but instead a "Lay Teacher", the exception does not apply under 9th Circuit precedent. He was not the functional equivalent of a minister, even though some of his job duties involved religion. Nor did the court find a separate Establishment Clause basis for dismissing plaintiff's lawsuit. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Christa Rautenbach, Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law, (Journal of Legal Pluralism and Unofficial Law, Vol. 60, pp. 143-177, 2010).
• David Groshoff, Hoisted by the ‘God, Guns, and Gays’ Petard: Recognizing Bullycidal Queer Students’ Rights to Engage in Lethal Self-Defense, (March 1, 2011).
• Kalyani Ramnath, Of Limited Suits and Limitless Legalities: Interpreting Legal Procedure in the Ayodhya Judgment, (NUALS Law Journal, Forthcoming).
• Filippo Fontanelli, Was Jesus Running Wild? Judicial Activism or Blasphemy, Christ and the Law in Saint Augustine and Saint Thomas, (International Journal of Private Law, No. 4, 2011).
• Sergio Novani, The Testimonial Argumentation, (March 14, 2011).

From SmartCILP and elsewhere:

• Abed Awad and Robert E. Michael, Iflas and Chapter 11: Classical Islamic Law and Modern Bankruptcy, 44 The International Lawyer 975-1000 (2010).
• The April 2011 issue of First Things has recently appeared.

Canada's Supreme Court Will Decide Niqab In Court Case

Canada's Supreme Court this week granted leave to appeal in N.S. v. Her Majesty the Queen, (leave granted, March 17, 2011). In the decision below, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit a Muslim woman to testify with her face covered. (See prior posting.)  Suite 101 has more background on the case.

Recent Prisoner Free Exercise Cases

In DeMoss v. Crain, (5th Cir., March 2, 2011), the 5th Circuit rejected a Muslim inmate's 1st Amendment and RLUIPA challenges to prison policies that required inmate-led religious services to be tape recorded when there is no staff member or outside volunteer present; barred inmates from carrying a pocket-sized Bible or Qur'an; required inmates to be clean-shaven; and did not permit inmates to stand for extended periods of time in prison dayrooms. A challenge to a policy that prohibited inmates confined to their cells for disciplinary infractions from attending religious services was dismissed as moot since the policy has been changed.

In Perez v. Williams, 2011 U.S. App. LEXIS 5109 (5th Cir., March 11, 2011), the 5th Circuit agreed with the district court that an inmate's free exercise claim was frivolous. Plaintiff complained that prison policy prohibits him from carrying his Bible or anything else other than his identification card on the recreation yard.

In Kates v. Micieli, 2011 U.S. Dist. LEXIS 24580 (WD LA, Feb. 23, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 24078, Feb. 7, 2011) and rejected a Muslim inmate's claim that his free exercise rights were violated when over a two day period he could not pray 5 times per day because he was placed in restraints for 18 hours.

In Johnson v. Varano, 2011 Pa. Commw. Unpub. LEXIS 194 (PA Commnw., March 9, 2011), a Pennsylvania state appellate court dismissed a Muslim inmate's free exercise claims against the Superintendent and kitchen staff growing out of a single incident in which the inmate was served pork. However the court remanded for further proceedings the question of whether the inmate had a cause of action in tort against the food services provider.

In Woodall v. Schwarzenegger, 2011 U.S. Dist. LEXIS 24395 (SD CA, March 9, 2011), a California federal district court permitted an inmate to proceed with his claim that prison officials destroyed his religious books.

In Washington-El v. Beard, 2010 U.S. Dist. LEXIS 141953 (WD PA, Dec. 16, 2010), a Pennsylvania federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was unable to attend religious services because of his placement on the Restricted Release List. A federal district judge adopted this portion of the magistrate's recommendations (2011 U.S. Dist. LEXIS 24562, March 11, 2011).

In Dove v. Broome County Corretional Facility, 2011 U.S. Dist. LEXIS 24528 (ND NY, March 10, 2011), a New York federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 25219, Feb. 17, 2011) and dismissed a Jewish inmate's complaint that he was denied kosher food for 30 days after having been observed eating a non-kosher meal when delivery of his kosher meal was delayed.

In Goodwin v. Hamilton, 2011 U.S. Dist. LEXIS 25790 (ED MI, March 14, 2011), a Michigan federal district court rejected a magistrate's recommendations (2010 U.S. Dist. LEXIS 142004, Jan. 13, 2011), and found that plaintiff had not presented sufficient evidence to support his Establishment Clause challenge to his attendance at a religiously-based substance abuse program after a parole violation. There was no evidence that plaintiff informed the staff of his objections to attending.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 25910 (ED AR, March 11, 2011), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 142011, Dec. 2, 2010) and permitted an inmate to proceed with his claims that his free exercise rights were violated when prison officials refused to provide him with nutritionally adequate meatless meals.

Church Complains About Its Cross Being Removed From State Park

Yesterday's Mobile (AL) Press-Register reports that the Orange Beach (AL) United Methodist Church is complaining that the recently appointed superintendent of Gulf State Park has removed a 10-foot tall cross made from driftwood that church members erected in 2008 with permission of the prior park superintendent.  Apparently the cross has been disposed of by maintenance personnel. Since 2008, the church has held evening services on the beach near the cross every Sunday from May to August. There have also been 35 baptisms performed in front of the cross. Park superintendent Michael Guinn says he removed the cross because of concern about separation of church and state.  He was unaware of the history of the cross or that it belonged to the United Methodist Church.  The church's pastor, Alan McBride, says they would have taken the cross down if the park had contacted them. The park superintendent admits that he acted hastily, and plans to meet with Rev. McBride to "try to make it up to them."

Idaho High Court Rejects Free Exercise Challenge To Marijuana Possession Conviction

In State of Idaho v. Fluewelling, (ID Sup. Ct., March 17, 2011), the Idaho Supreme Court rejected a criminal defendant's argument that his conviction for possession of marijuana violated his free exercise rights under the U.S. and Idaho constitutions.The court held that prosecution for conduct that violates a neutral statute of general applicability is not unconstitutional merely because the defendant engaged in the conduct for religious reasons. The court also rejected defendant's argument that his conviction should be reversed because a different state statute that permits peyote to be used in Native American religious ceremonies unconstitutionally grants a preference to one religious denomination.

Biblical Reference In Closing Argument Does Not Invalidate Guilty Verdict

In Powell v. State, (GA App., March 16, 2011), the Georgia Court of Appeals affirmed an appellant's conviction for aggravated assault, rejecting his claim that the trial judge allowed improper religious-based statements by the prosecution during closing argument. At issue was this statement to the jury by the prosecution:

let me call your attention to Matthew, Mark, Luke and John, four books of the Bible, first four books in the New Testament. They all have a little minor inconsistency between each of them, here and there, and that's because of perspective. But what do we call those four books of the Bible, ladies and gentlemen? We call them the gospel truth, ladies and gentlemen, the gospel truth.

The court concluded:

the biblical reference at issue here did not invite jurors to base their verdict on extraneous matters, or exhort jurors to reach a verdict on religious grounds, instead the prosecutor used the references to encourage jurors to overlook inconsistencies in the evidence.

Italy's High Court Upholds Ouster of Judge Who Refused To Preside In Court Room With Crucifix

In Italy earlier this week, the Cassation Court-- Italy's highest appellate court-- upheld last year's dismissal by the Supreme Council of Magistrates of Judge Luigi Tosti. According to Life in Italy last Monday, the Court concluded that Tosti was guilty of refusing to perform his judicial duties when, from May 2005 to January 2006 he withdrew from 15 hearings because a crucifix was displayed in the courtroom in which the hearing was scheduled.  Tosti, who is Jewish, argued that the presence of the crosses was a threat to religious liberty. He says he will now take his case to the European Court of Human Rights. (See prior related posting.)

Property of Break-Away Church In Texas Belongs To Episcopal Diocese

In Masterson v. Diocese of Northwest Texas, (TX App, March 16, 2011), the Texas Court of Appeals held that the property of the Church of the Good Shepherd in San Angelo, Texas, belongs to the Episcopal Diocese of Northwest Texas and the continuing parish leaders, not to the break-away congregation that joined the more conservative Anglican Diocese of Uganda. The court held that this conclusion follows using either under the "neutral principles of law" approach or the rule of mandatory deference to determinations by hierarchical church bodies. Discussing the "neutral principles" approach, the court said:

Though the deed to the property is held in Good Shepherd's name, the parish agreed from its inception to be a part of the greater Episcopal Church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the Episcopal Church and may be subject to Good Shepherd's authority only so long as Good Shepherd remains a part of and subject to the Episcopal Church and its Constitution and Canons.

European Court's Grand Chamber Upholds Italy's Placement of Crucifixes In State Schools

Today in a 15-2 ruling, the Grand Chamber of the European Court of Human Rights held that the required display of crucifixes in state school classrooms in Italy does not violate the European Convention on Human Rights. In Case of Lautsi and Others v. Italy, (ECHR, March 18, 2011), the European Court reversed a Chamber Judgment issued by a 7-judge panel of the Court in November 2009 that had found the practice violates Article 2 of Protocol No. 1 taken together with Article 9 of the European Convention on Human Rights. (See prior posting.) In today's Grand Chamber judgment, the majority said in part:

[I]t is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.... [A] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality.... It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.... [T]he presence of crucifixes is not associated with compulsory teaching about Christianity....

Italy opens up the school environment in parallel to other religions.... [I]t was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were "often celebrated" in schools; and optional religious education could be organised in schools for "all recognised religious creeds" .... Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency.... [A]pplicant retained in full her right as a parent to enlighten and advise her children... and to guide them on a path in line with her own philosophical convictions....

Three concurring opinions were filed.  In one of them, Judge Bonello wrote:

A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity.... A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

A dissenting opinion by Judge Malinverni, joined by Judge Kalaydjieva, argued in part:

[T]he presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts.... [N]egative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.  Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol.

The Court also issued a press release describing today's decision.

Malaysian Court Upholds Rule Limiting Syariah Law Practice To Muslims

In Malaysia yesterday, the High Court (Appellate and Special Powers) upheld the requirement that only Muslims can practice as Syariah lawyers. The Star reports on the decision which upholds Rule 10 of the Peguam Syarie Rules 1993. Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, challenged the requirement imposed by the Federal Territory of Kuala Lumpur's Islamic Religious Council that only Muslims can be admitted to practice before its Syariah Court. (See prior posting.) In yesterday's decision, Justice Rohana Yusuf concluded that: "The requirement (for a Syarie lawyer to be) of Muslim faith is necessary to ensure the effectiveness of legal representation." Martin's lawyers plan to appeal the decision.

Belk Settles Religious Accommodation Suit Filed By EEOC

A settlement has been reached between the EEOC and Belk, Inc. in a lawsuit brought by the EEOC charging Belk with failing to accommodate the religious beliefs of a Jehovah's Witness employee in its Raleigh, North Carolina store.  (EEOC press release.) Employee Myra Jones-Abid was fired when she refused to wear a Santa hat and apron because her religious beliefs bar her from recognizing holidays. Under the settlement, Belk will pay Jones-Abid $55,000 in damages and will provide annual training on religious discrimination to managers at the store involved. It will also post a notice at the store on employees' rights and report to the EEOC on its responses to employee requests for religion accommodation.

Lawsuit Challenges Arizona Day of Prayer Declaration

The Freedom from Religion Foundations announced that it filed a lawsuit on Tuesday challenging Arizona Governor Jan Brewer's declaration of May 6, 2010 as Arizona Day of Prayer. The complaint (full text) in Freedom from Religion Foundation Inc. v. Brewer, (D AX, filed 3/15/2011) seeks a declaratory judgment that Brewer's proclamation violates the Establishment Clause as well as  Art. II, Sec. 12 and Art. XX, Sec. 1 of the Arizona constitution. It also asks for an injunction barring the governor from proclaiming days of prayer in 2011 or thereafter.

Knesset Committee Hears From Chief Rabbi On Israel's Recognition of Orthodox Conversions

Haaretz reports on a special meeting of the Knesset (Israeli Parliament) Immigration Committee on Tuesday in the office of Israel's Chief Sephardi Rabbi Slomo Amar in which Amar defended a controversial policy of the Chief Rabbinate and the Interior Ministry adopted two years ago regarding recognition of conversions to Judaism performed by Orthodox rabbis abroad.  The policy limits recognition of conversions to those performed by members of specific rabbinical organizations, such as the Rabbinical Council of America. The Interior Ministry's recognition is important in determining whether an immigrant is entitled to immigrate under the Law of Return. Amar told the Knesset Committee that he had received reports of some rabbis abroad performing conversions in exchange for large sums of money.  In an interesting twist, the Israeli Supreme Court has previously ruled that the Interior Ministry must recognize Reform and Conservative conversions from abroad for purposes of the Law of Return.  However, because the Court has not passed on the issue of Orthodox conversions abroad, the Interior Ministry retains control over which it will recognize. Government representatives are working on drafting a new policy on recognition of Orthodox conversions that will withstand legal challenge.

Court Says Any Accommodation of Jehovah's Witness Would Impose Undue Hardship On Employer [Corrected]

In Berry v. MeadWestvaco Packaging Systems, LLC, (MD AL, March 14, 2011), an Alabama federal district court dismissed a Title VII religious discrimination claim brought by a Jehovah's Witness employee who was assigned to work at times that conflicted with his scripturally mandated Tuesday and Wednesday evening religious meetings. The company allowed Thomas Berry, a gluer operator, to swap shifts with other operators and to use his vacation time. However, he had insufficient vacation time and no other operator was willing to switch with him. The court concluded that while there is an issue of fact as to whether the company offered Berry reasonable accommodation, any available accommodation would have created "undue hardship" to the employer and therefore could not be imposed on the company. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.] (Note-- an earlier version of this posting incorrectly indicated that the case involved a Seventh Day Adventist. I apologize for the error.)

Federal Judge Urges Settlement Negotiations In FLDS UEP Trust Case

As previously reported, last month a Utah federal district court held unconstitutional the five years of Utah state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust.  The state plans to appeal the ruling. Meanwhile, Fox13Now reports that during a status conference on Tuesday, federal district judge Dee Benson urged attorneys for the state, the FLDS Church and the trust to re-institute settlement negotiations. The parties appear willing to try again, but the matter is complicated by ex-FLDS members who have now moved into some homes on trust property.

Malaysia Will Release Impounded Christian Bibles, Subject To Conditions

In Malaysia, the Home Ministry on Tuesday decided to release back to the Bible Society of Malaysia and The Gideons 35,000 copies of a Malaysian translation of the Christian Bible that had been impounded. (See prior posting.)  UPI and The Star report that the Performance Management  and Delivery Unit originally seized the Bibles that came in two separate shipments because they use the word "Allah" as a translation for "God." However the Ministry’s Publications Control and Quranic text division has now decided to permit the Bibles to be imported, subject to certain conditions. The Ministry has stamped on each Bible the warning: "The Good News Bible is for the use of Christians only."  It also wants serial numbers and the official Ministry stamp on the Bibles. The Bible Society has concerns over these conditions and wants to discuss them further. Some Malaysian states have laws prohibiting use of the word "Allah" by non-Muslims and a challenge to a similar ban by the Home Ministry is still pending in Malaysian courts. (See prior posting.)

Establishment Clause Challenge To City's Invocation Policy Survives Motion To Dismiss

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, March 15, 2011), a Florida federal district court allowed plaintiffs to proceed with their federal and state Establishment Clause claims challenging the invocation policy of the Lakeland (FL) City Commission. The city maintains a list from which they invite various clergy to deliver prayers at the beginning of each meeting. Plaintiffs claim that the city's practice, with one exception, has been to exclude non-Christians and the non-religious. After the lawsuit was filed, the city passed a new policy, but plaintiffs claim both that the official policy is unconstitutional and that the actual practice deviates from the formal policy. However plaintiffs' equal protection and free speech claims were dismissed. Tuesday's Lakeland (FL) Ledger reports on the decision.

Democrats In Congress Introduce Bill To Repeal DOMA

The Hill reported yesterday that Democrats in both the House and Senate have introduced the Respect for Marriage Act (full text). The bill would repeal the Defense of Marriage Act and instead recognize as valid for federal law purposes any same-sex marriage that was legally entered into in the jurisdiction where it was performed. On the Senate side, the bill was introduced by Sen. Dianne Feinstein and is co-sponsored by 18 other Senate Democrats. (Press release.) In the House, the bill was introduced by Representatives Jerrold Nadler and John Conyers, and is co-sponsored by four gay and lesbian members of Congress. The Hill says that the chances of the bill passing the House are slim.

New Hampshire High Court Upholds Public Schooling Over Home Schooling In Parental Dispute

In a widely followed case, the New Hampshire Supreme Court has upheld a trial judge's order that an 11-year old girl be enrolled in public school rather than continue to be primarily home schooled by her mother.  The issue arose when the girl's divorced parents who shared parental responsibilities could not agree on schooling plans.  While the mother argued that the trial court's order violated parental rights to control the education of their children in conjunction with the free exercise of religion, the court said:

While this case has religious overtones, it is not about religion. While it involves home schooling, it is not about the merits of home versus public schooling. This case is only about resolving a dispute between two parents, with equal constitutional parenting rights and joint decision-making responsibility, who have been unable to agree how to best educate daughter.

In In re Kurowski, (NH Sup. Ct., March 16, 2011), the court concluded:

Because the parents in this case reached an impasse on the exercise of their respective parenting rights, the trial court properly utilized the best interests standard to resolve the dispute. The trial court’s decision is not subject to strict scrutiny review merely because the case involves the fundamental parental right to make decisions for daughter’s education and the parents' divergent religious convictions.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Harvard Law Prof. William Stuntz Dies

In a tribute to "an examined life of thoughtfulness and grace", Harvard Law School yesterday announced that renowned criminal justice scholar and beloved teacher William Stuntz died on March 14 after a long battle with cancer. At a conference last year, one participant described Prof. Stuntz's scholarship as follows:

Stuntz’s work builds a bridge between the religious and the secular, the pragmatic and the evangelical, with his intellectual commitments both rooted in faith and insistent on reasoned evidence. In the world of criminal legal discourse, this is an invaluable contribution.

On his blog, which he co-authored with David Skeel, he and Skeel said: "We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination."
[Thanks to Legal Theory blog for the lead.]

9th Circuit En Banc Finds Court Holding Facility Is Covered By RLUIPA

The U.S. 9th Circuit Court of Appeals yesterday in an en banc decision in Khatib v. County of Orange, (9th Cir., March 15, 2011), concluded that the holding facility at the Santa Ana (CA) courthouse is a "pretrial detention facility" that is covered by RLUIPA. The issue arose in the context of a lawsuit by a Muslim woman who was held in the facility for a number of hours after the court revoked her probation. Officers there insisted that she remove her headscarf even though this was a violation of her religious beliefs.  A 3-judge panel in the case had held, 2-1, that the holding cell was not covered by RLUIPA. The 11-judge en banc panel disagreed unanimously. Neither of the two judges in the majority on the 3-judge panel were among the eleven that heard the case en banc. Courthouse News Service reports on the decision.

Proposed Tajik Law Banning Children's Participation In Religious Activities Draws Objections

Forum 18 reports that in Tajikistan yesterday the public consultation period ended on a controversial proposed Law on Parental Responsibility for the Education and Upbringing of Children.  After receiving more than 30,000 comments on the proposed law, the President's office said opinions of religious communities will be taken into account and changes will be made in the draft.  The proposal, initiated by Tajikistan's President Emomali Rahmon last year, would require parents to prohibit their children from participating in organized religious activities, except for funerals.  Apparently its goal is to stop children from attending mosques in the majority-Muslim country.  However it will also negatively impact the minority Russian Orthodox community.  Other provisions in the law require parents to give children names that reflect national values. It requires that children be educated in the spirit of respect for the homeland, national and universal values. It requires school uniforms and bans children having access to materials that contain violence, extremism, terrorism or other manifestations against morals.

Utah Police Arrest Man Who Used Animal Parts and Human Skulls For Religious Rites

According to NBC News, in Clearfield, Utah on Sunday detectives arrested Roberto Casillas-Corrales for investigation of abuse or desecration of a human body.  While executing a search warrant as part of a drug investigation, officers found a shed full of animal carcasses, along with two human skulls, behind Casillas-Corrales' home. Casillas-Corrales says he is a Santeros, or priest, and that he uses the skulls and animal parts for religious ceremonies.  He apparently purchased the skulls from individuals who took them from graves in Cuba.  It is unclear whether the animal parts will lead to additional charges.  Federal immigration agents are also involved in the investigation since Casillas-Corrales is not a U.S. citizen.

Lawsuit Claims "Local Option" Use Violates Civil Rights Act

An organization calling itself the Ethereal Enigmatic Euphoric Movement Toward Civilized Hedonism filed a lawsuit in federal court in Idaho last week challenging Idaho's local option statute (Idaho Stat. Sec. 23-917) that allows residents of a city to vote to ban the sale of liquor by the drink.  The complaint (full text) alleges that Preston, Idaho, whose residents are mostly Mormon, have used the local option statute to force their religious objections to liquor on others.  The complaint also alleges that this deprives members of the EEEMTCH of freedom to practice their belief that consumption of liquor is a "moral obligation and sacred right."  The complaint alleges that the ban on sale of liquor by the drink in Preston violates the public accommodations provisions of the 1964 Civil Rights Act as well as similar provisions of Idaho law (Sec. 67-5909).  Invoking the legacy of the civil rights movement, the complaint alleges: "Like being told we have to drink at separate water fountains, if we want a mixed drink in a bar, we are forced to drive to any of the surrounding cities in the state." Courthouse News Service reports on the filing of the lawsuit.

Catholic Cardinal Criticizes UK Foreign Aid Plans As Anti-Christian

The head of the Roman Catholic Church in Scotland, Cardinal Keith O'Brien, critized Britain's plans to increase foreign aid to Pakistan. He said:

To increase aid to the Pakistan government when religious freedom is not upheld and those who speak up for religious freedom are gunned down is tantamount to an anti-Christian foreign policy... Pressure should now be put on the government of Pakistan, and the governments of the Arab world as well, to ensure that religious freedom is upheld.

However, according to AFP yesterday, the British government is defending its policy.  Junior foreign minister Alistair Burt said that the promotion of human rights, including religious freedom, is at the heaqrt of its foreign policy.

Justice Department Sues California Under RLUIPA On Behalf of Sikh Inmate

The U.S. Department of Justice announced yesterday that it has filed a RLUIPA lawsuit against the state of California and its prison system after concluding that the state's inmate grooming policy violates the rights of a Sikh prisoner. Sukhjinder S. Basra, an inmate at the California Men’s Colony in San Luis Obispo, has been punished by prison officials for wearing a beard as required by his religious beliefs. The Justice Department says that its filing also seeks to have it participate in a lawsuit already filed on behalf of the inmate.

Anti-Abortion Demonstrator Loses Damage Action Against Park Service Officers On Qualified Immunity Grounds

Michael Marcavage, director of Repent America, has lost in his attempt to recover damages from National Park Service officers who required him to end the 2007 anti-abortion rally he was conducting in front of the entrance to Philadelphia's Liberty Bell Center and told him he could demonstrate only in a nearby area that was designated a First Amendment area under Independence National Historical Park regulations.  Last June, in United States v. Marcavage, the 3rd Circuit vacated Marcavage's conviction for interfering with an agency function, finding that the sidewalk on which he was demonstrating was a traditional public forum.  Now, however, in Marcavage v. National Park Service, (ED PA, March 9, 2011), a Pennsylvania federal district court held that while a damage action under Bivens action may be brought against federal officials for 1st Amendment violations, the Park Service officers involved have qualified immunity. The court concluded that content-based, as opposed to viewpoint-based, restrictions are permissible in a non-public forum and:

it was not clearly established that the Sixth Street sidewalk was a public forum at the time of Marcavage's arrest. While the Court of Appeals ultimately decided that it was, the question was open at the time.... 

The court also rejected Marcavage's equal protection claim.

Jewish Prayers On Board Plane Lead To Security Scare

CNN reports that three Orthodox Jewish businessmen praying on an Alaska Airlines flight from Mexico City to Los Angeles on Sunday triggered a security alert. Passengers became alarmed when the three began praying out loud "in a language other than Spanish" shortly after takeoff.  Flight attendants said the men appeared to have something strapped under their clothing as well-- presumably tefellin which observant Jews wear during week day morning prayers. Flight attendants alerted the flight deck which in turn alerted security at LAX.  Airport police, the FBI and agents from Customs and Border Protection all met the men when the flight landed. After questioning and a search of their baggage the men-- all cooperative with authorities-- were cleared to go.

UPDATE: CNN (3/15) reports that Alaska Airlines has apologized for the handling of the incident. However the airline explained that the flight crew was alarmed in part because the men ignored instructions to stay seated with seat belts fastened during air turbulence, and instead retrieved "small black boxes fastened with what appeared to be black tape" from their luggage in the overhead bins.

Indian Court Says Trustees Cannot Exclude Zoroastrian Priests From Tower of Silence

In India last week, the Bombay High Court ruled that trustees of the Parsi Panchayet Funds and Properties do not have the authority to bar two duly ordained Zoroastrian priests from performing religious rites at the Malabar Hill Tower of Silence and two fire temples.  The Hindustan Times last week reported that the Parsi Panchayet banned priests Framroze Mirza and Khushroo Madon on the grounds that the priests were engaging in activities that contradicted basic Zoroastrian tenets. A two judge bench of the High Court says that nothing in the Deed of Trust of the Parsi Panchayet gives the trustees this power, and if it did, it would "result in a grave affront to basic human rights and individual dignity." The court said the trustees mistakenly believe "they are custodians of the religion." The decision overruled one by a single judge last year who held that the High Court did not have the jurisdiction to determine what was and was not religious.

School's Prayer Service To Encourage Performance On Standardized Tests Is Questioned

The Baltimore Sun this week reports on the church-state questions that have been raised by the attempts at Baltimore's Tench Tilghman Elementary/Middle School to raise the performance of students on statewide standardized tests.  In preparation for the Maryland School Assessments this year and last, the school has held a 30-minute prayer service to culminate special Saturday test preparation classes.  Parents asked principal Jael Yon to hold the classes and prayer service as the best way to encourage and instill confidence in the students. Asked about the prayer service, city school officials said that "while we as a district understand that prayer plays an important role for many in our school communities … it is not appropriate for public institutions of education to promote any particular religious practice."

Court Explores Catholic Doctrines For End of Life Decisions

Matter of Zornow, (NY Sup. Ct., Dec. 23, 2010, posted March 2, 2011), involves a dispute between siblings over whether their mother, an Alzheimers patient in a nursing home, should be denied artificially administered food and water when the statutory conditions for doing so would permit such a decision to be made.  New York Public Health Law Sec. 2994-d.4.(a) provides that a court-appointed surrogate shall made decisions "in accordance with the patient's wishes, including the patient's religious and moral beliefs."  Finding that the mother was a practicing Catholic, the trial court engaged in a lengthy analysis of Catholic doctrine on foregoing food and water. In the course of the lengthy decision, Judge Polito was highly critical of provisions in the New York statute that sets out standards that may be used by surrogates in making health care decisions. He urged the legislature to create a "sanctity of life" rather than a "quality of life" presumption. [Thanks to Volokh Conspiracy for the lead.]

India Shia Personal Law Board Takes Action Against Domestic Abuse, Polygamy

According to India Today, the All India Shia Personal Law Board is taking action to counter the growing problem of domestic violence. It will ostracize men who beat their wives and will create a help line for victims.  The Board also expressed concern with polygamy, saying that the dowry that goes to the man's family is the main cause of the practice.  It decided that from now on, the dowry must be in the form of cash in an amount decided well before the wedding, and that the bride's family must  be free to spend the amount on the cost of the wedding ceremony.

Recent Articles Of Interest

From SSRN:

• Shoaib A. Ghias, Translation of Murawwaja Islāmī Baynkārī awr Jamhūr ʿUlamā kay Mawqaf kā Khulāṣa (A Collective Fatwa Against Islamic Banking) , (March 4, 2011).
• Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, (New York University Law Review, Forthcoming).
• Julia Leininger, The Diverse Role of Muslim Actors in Mali’s Democratic Consolidation: Fostering Plurality and Inhibiting Strong State Institutions, (February 4, 2010).
• George P. Smith, Regulating Morality through the Common Law and Exclusionary Zoning, (Catholic University Law Review, Vol. 60, No. 2, pp. 403-444, 2011).
• Michael J.T. McMillen, Islamic Capital Markets: Market Developments and Conceptual Evolution in the First Thirteen Years, (March 8, 2011).
• Julie Ringelheim, Emmanuelle Bribosia and Isabelle Rorive, Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?, (Maastricht Journal of European and Comparative Law, Vol. 17, No. 2, 2010).
• Cyra Akila Choudhury, Collateral Damage: the Ghettoization of Muslims in the Race for the White House, (Race 2008: Critical Reflections on a Historical Campaign, Mendible, ed., 2010).
• Ihsan Yilmaz, The Varied Performance of Hizb Ut-Tahrir: Success in Britain and Uzbekistan and Stalemate in Egypt and Turkey, (Journal of Muslim Minority Affairs, Vol. 30, No. 4, December 2010).
• Giovanni Distefano and Pascal Mahon, Ban on Minarets from the Standpoint of Swiss Constitutional Law and Public International Law (Jus Cogens), (Journal of Sharia and Law, Vol. 45, pp. 69-84, January 2011).

From SmartCILP:

• Angela C. Carmella, Religion-Free Environments in Common Interest Communities, 38 Pepperdine Law Review 57-110 (2010).
• Derek John Illar, Cyber Fatwas and Classical Islamic Jurisprudence, [Abstract], 27 John Marshall Journal of Computer and Information Law 577-592 (2010).
• 2010 Editor's Symposium. Freedom of Conscience: Stranger in a Secular Land, 47 San Diego Law Review 899-1129 (2010). (Introduction by Larry Alexander and Steven D. Smith; articles by Kent Greenawalt, Adam J. Kolber, Brian Leiter, Andrew Koppelman, Christopher T. Wonnell, Michael J. Perry, Richard J. Arneson, Nomi Maya Stolzenberg, Michael J. White, Ronald Beiner and Maimon Schwarzschild).
• Journal of Islamic and Near Eastern Law, Vol. 9, No. 1 (2009-10) has recently appeared. 

Recent Prisoner Free Excercise Cases

In Miles v. Moore, 2011 U.S. Dist. LEXIS 21753 (ED VA, March 3, 2011), a Virginia federal district court dismissed a challenge to a prison rule that only allowed changes once each quarter in the list of prisoners who could attend religious services. This delayed plaintiff's restoration to the list after he had been dropped during a period of administrative segregation.

In Pierce v. Gonzales, 2011 U.S. Dist. LEXIS 21888 (ED CA, Feb. 17, 2011), a California federal magistrate judge dismissed as too vague an inmate's allegations that Muslim inmates were denied religious services for over a year. Plaintiff however was granted leave to file an amended complaint.

In Muhammad v. Wade, 2011 U.S. Dist. LEXIS 22234 (ED VA, March 2, 2011), a Virginia federal district court rejected a Muslim inmate's claims that his rights were violated when authorities impeded his attempts to set up for classes and prayer, and denied him an Eid-ul-Fitr feast.

In McGovern v. Smith, 2011 U.S. Dist. LEXIS 22528 (D MT, March 7, 2011), a Montana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. Lexis. 23088, Feb. 1, 2011) and dismissed an inmate's challenge that his ability to practice his Wiccan religion were burdened by denying him the use of real candles and confiscating his pendant. However the court refused to dismiss his challenge to the ban on casting spells.

In Pine v. Seally, 2011 U.S. Dist. LEXIS 23482 (ND NY, Feb. 4, 2011), a New York federal magistrate judge recommended dismissing plaintiffs' claims that that they were denied "'Elder 'Rastafarian' or Eman [sic] 'Muslim' services . . . special diets, the right to Ramadan," and that Jewish inmates were not allowed to celebrate Passover and were not given kosher diets."

Dalai Lama To Transfer His Political Power To Elected Official

AP reports that the Dalai Lama will give up his political role in the Tibetan government-in-exile and will turn that formal role over to an elected leader.  The Dalai Lama said he will propose amendments to the constitution of the government-in-exile at its session that begins this week in Dharmsala, India. An election for a new prime minister for the government-in-exile is also scheduled this month, and that person may be the one to take on the Dalai Lama's political duties.

New Review of Religious Tolerance At Air Force Academy To Be Undertaken

AP reported yesterday that a retired Air Force general will conduct a review of the religious climate at the U.S. Air Force Academy . The Academy has been at the center of charges of religious intolerance for the past seven years. General Patrick K. Gamble, now president of the University of Alaska, will assemble a team of five or six members to take an "independent, subjective look at the overall climate at USAFA relating to free exercise of religion." The review is designed to evaluate various initiatives undertaken since 2004 that were designed to improve religious tolerance. A lengthy report on issues of religious tolerance at the Academy was issued in 2005. (See prior posting.)

Maryland House Fails To Pass Same Sex Marriage Bill After Religious Opposition

Baptist Press reports that Maryland's House of Delegates yesterday voted to send the pending same-sex marriage bill back to committee after the leadership determined that they lacked the votes to pass it.  The Maryland Senate passed the bill last month (see prior posting), and it was expected that the House would also pass it.  However opposition from predominately black churches, as well as from the Maryland Catholic Conference, meant that the bill was unable to get enough Democratic support. Two members of the black caucus switched from being co-sponsors to opposing the bill. Del. Cheryl Glenn, a member of the black caucus said: "The black churches -- since I've been here -- have never asked us for anything, that I can recall. They are asking now, 'Don't use the word marriage.'" Leaders expect the House will take up the bill again next year.

Defendant's Absence From Trial For Religious Reasons Held To Be Voluntary Waiver

In Eubanks v. Lempke, 2011 U.S. Dist. LEXIS 23642 (SD NY, Feb. 22, 2011), a New York federal district court denied a habeas corpus petition filed by Isaac Eubanks, a Muslim, who was absent from his state court trial for religious reasons on the Friday when the jury returned with its verdict convicting him of robbery and possession of stolen property. The federal court held that the state court's determination that Eubanks had voluntarily waived his right to be present was not objectively unreasonable. He had attended pre-trial proceedings on other Fridays.  His counsel did not object at trial and the state has a "controlling public interest" in protecting the integrity of jury deliberations.

Chechnya Criticized For Imposing Islamic Dress Code on Women

Human Rights Watch yesterday released a report titled You Dress According to Their Rules: Enforcement of an Islamic Dress Code for Women in Chechnya (full text). Here is a summary from the text of the report:

This report describes violence and threats against women in Chechnya to intimidate them into adhering to a compulsory Islamic dress code. The documented attacks and incidents of harassment took place from June through September 2010, when the virtue campaign in the republic intensified. During that time, dozens of women were subjected to attacks by men, including law enforcement officials, in the center of Grozny, for not wearing a headscarf or for dressing in a manner which these men deemed insufficiently modest. While pressure on women seemed to become less aggressive after September the dress requirement remains a live issue and continues to be backed by high-level officials, including Ramzan Kadyrov.

Interfaith Leaders Criticize House Hearings On Radicalization of Muslims

Twenty-six religious leaders-- Christian, Jewish, Muslim and Sikh-- yesterday issued a statement (full text) criticizing U.S. Rep. Peter King's hearing on the radicalization of American Muslims. The statement reads in part:

We urge the members of our government as well as citizens of good will to refrain from passing judgment on religious or faith groups based on the actions of the few who pervert their spiritual traditions through acts of violence and hostile rhetoric. We believe that politicians, cultural figures and members of the media are never justified in exploiting religious differences in order to advance ideological or political aims. Our leaders in Congress and the Administration must stand up and speak out against these hearings – hearings that perpetuate misrepresentations and harm our country rather than lead it to greater awareness and a strengthened citizenry.

The interfaith coalition-- calling themselves "Shoulder to Shoulder"-- also held a press conference yesterday to criticize the hearings. (Transcript of press conference.)

Fired Nurse Sues Catholic Hospital For Defamation

The San Antonio Express-News reports on a defamation lawsuit against a Catholic hospital that went to trial yesterday in a Bexar County (TX) trial court. Tammy Perez is a devout Catholic who was formerly employed as a nurse by Christus Santa Rosa Health System. She claims that the hospital defamed her in the process of firing her in retaliation for her reporting to officials of the Archdiocese that the hospital had performed an abortion. She prepped the patient for the procedure. The hospital says that the procedure at issue involved a miscarriage, while Perez claims that there had not been an ultrasound to determine if there was still a fetal heart beat. She says the patient told her she had not miscarried. The hospital says they fired Perez because she violated privacy laws by revealing medical information regarding the patient to a priest who was the archdiocesan administrator. Meanwhile, in response to a pre-trial motion, the court ruled that the question of whether an abortion in fact was performed will not be an issue at trial.

House Will Defend DOMA In Court

House Speaker John Boehner announced Wednesday that after consultation with the Bipartisan Leadership Advisory Group, he has directed the House General Counsel to initiate a legal defense of the Defense of Marriage Act.  Boehner had announced last week that he was convening the Advisory Group after the Obama administration decided that it would no longer defend DOMA's constitutionality. (See prior posting.) According to AHN, the Advisory Committee's vote in favor of defending the law was 3-2, along party lines. Joe Solmonese, president of the Human Rights Campaign, criticized Boehner's action, saying: "The Republicans' jobs plan is a full employment project for right-wing lawyers bent on defending discrimination." [Thanks to Alliance Alert for the lead.]

State AG Challenge To Bush Era Conscience Rules Dropped Because of Revisions

A lawsuit filed in 2009 by a coalition of state attorneys general challenging the health care provider conscience rules promulgated by the Bush administration was dropped last week.  According to BNA Daily Report for Executives, the suit originally filed by the Connecticut attorney general and then joined by others was dropped because a Feb. 18, 2011 revision of the rule has rescinded the parts of the rule which the attorneys general found objectionable. The original suit alleged that the 2008 regulation limited women's access to necessary medical services, including emergency contraception.

5th Circuit: Disciplinary Exclusion of High School Student Did Not Violate His Free Exercise Rights

In C.H. II v. Rankin County School District, (5th Cir., March 4, 2011), the U.S. 5th Circuit Court of Appeals rejected a high school student's claim that his free exercise rights were violated by disciplinary action taken against him in connection with an auto body class.  After the student's misbehavior in the class-- offered by a community college to high school students-- the instructor and the director refused to allow the student to continue in the course unless he received counselling or at least unless he and his father signed an instructor-student contract outlining expected behavior. They refused, citing religious reasons. The court held that the school was merely enforcing a generally applicable rule of discipline against the student and that his constitutional rights were not violated.

U.S. Calls For Egypt To Prosecute Perpetrators In This Week's Muslim-Christian Violence

AFP reports that in Egypt on Tuesday violence broke out between Muslims and Christians in a working class district of Cairo as 1000 Christians protested the burning of a Coptic Christian church last week. Ultimately 13 people-- 7 of them Copts-- were killed in the ensuing fighting, while 140 people were injured. At the regular U.S. State Department press briefing yesterday (full text), spokesman Mark Toner said that the US. was concerned about the violence against Copts. He said: "We have urged the Egyptian transitional government to act swiftly to bring the perpetrators of that violence to justice." Sify paints a more complicated picture of events leading up to the violence, tracing it originally back to what began as a family quarrel over a love affair between a Christian man and a Muslim girl. It chronicles the stoning of cars, mainly by Christians, after four days of peaceful demonstrations over the church burning.

UPDATE: The March 14 Christian Post reports that Egypt's military is funding a project to restore the St. Mina and St. George churches that were burned by a Muslim mob after villagers discovered a romantic relationship between a Christian man and a Muslim woman.

Philadelphia Archdiocese Suspends 21 Accused Priests

In the wake of a February grand jury report criticizing the procedures employed by the Catholic Archdiocese of Philadelphia in dealing with priests accused of sexually abusing minors (see prior posting), the Archdiocese announced on Tuesday that it has placed 21 priests on leave. Further independent investigations will be undertaken in each case. Eight other priests will remain in their positions after an independent examination of the evidence against them found that no further investigation is warranted. A statement by Cardinal Justin Rigali explained that these actions followed from recommendations by veteran child abuse prosecutor, Gina Maisto Smith, who he enlisted to examine the cases of accused priests and the Archdiocese's procedures for handling allegations of sexual abuse of minors. Rigali concluded: "I wish to express again my sorrow for the sexual abuse of minors committed by any members of the Church, especially clergy. I am truly sorry for the harm done to the victims of sexual abuse, as well as to the members of our community who suffer as a result of this great evil and crime." The New York Times reports that a dozen protesters stood outside Ash Wednesday services in Philadelphia yesterday. One carried a sign urging that the identities of the 21 suspended priests be disclosed.

Chicago Faith-Based Foster Care Agencies Could Lose Funding For Refusing To Place Children With Same-Sex Couples

The Windy City Times reported yesterday that the recent passage of a same-sex civil union law by the state of Illinois (see prior posting) complicates the question of whether to permit faith-based foster care agencies that contract with the state to refuse to place foster children with same-sex couples. The civil union law becomes effective on June 1.  Three faith-based agencies in Chicago that receive $40 million each year from contracts with the Illinois Department of Children and Family Services currently refuse to place children with LGBT couples.  Lutheran Children and Family Services says it will likely change its policy, but Catholic Charities and the Evangelical Child and Family Agency say they will not.

Report Charges Anti-Islamic Bias In Training of Law Enforcement and Security Personnel

Political Research Associates, a progressive think tank, on Tuesday released a report (executive summary ) titled  Manufacturing the Muslim Menace: Private Firms, Public Servants and the Threat to Rights and Security ( full text).  The lengthy report charges that local, state and federal government agencies fail to adequately monitor the quality of preparedness training provided to their law enforcement and domestic security employees by private vendors.  Focusing on three private organizations that offer anti-terrorism training, the report charges:

public servants are regularly presented with misleading, inflammatory, and dangerous information about the nature of the terror threat through highly politicized seminars, industry conferences, trade publications, and electronic media. In place of sound skills training and intelligence briefings, a vocal and influential sub-group of the private counterterrorism training industry markets conspiracy theories about secret jihadi campaigns to replace the U.S. Constitution with Sharia law, and effectively impugns all of Islam—a world religion with 1.3 billion adherents—as inherently violent and even terroristic.

The report also offers seven recommendations to improve the situation in the future.

Minnesota Trial Court Upholds State's Ban on Same-Sex Marriage

On Monday, a Hennepin County, Minnesota state court judge rejected a constitutional challenge to Minnesota's law that bars same-sex marriage. Tuesday's Minneapolis Star Tribune reports that the trial court relied on a 1971 Minnesota Supreme Court decision-- Baker v. Nelson -- which rejected a similar challenge, and also relied on Minnesota's Defense of Marriage Act. The case decided this week was brought by three same-sex couples who had been denied marriage licenses. It claimed that denial of marriage to same-sex couples violated their due process, equal protection, religious freedom and free association rights.

House Hearing on Radicalization of U.S. Muslims Will Stream Live Thursday Morning

House Homeland Security Committee Chairman Peter King's controversial hearing on The Extent of Radicalization in the American Muslim Community and that Community's Response, is scheduled to begin at 9:30 a.m. EST on Thursday, March 10.  The hearing will be streamed live from this committee website. The list of witnesses has been released. They include 3 members of the House: Michigan's John Dingle, Minnesota's Keith Ellison (the first Muslim member of Congress), and Virginia's Frank Wolf. Others who will testify are: Dr. M. Zuhdi Jasser (head of the American Islamic Forum for Democracy); Abdirizak Bihi (Director of the Somali Education and Social Advocacy Center); Melvin Bledsoe; and Los Angeles County Sheriff Leroy Baca.

UPDATE: A video of the hearings is archived on C-Span.

Suit Challenges Ban on Student's Distribution of Church Christmas Party Flyer

Last week, a federal court lawsuit was filed on behalf of a Cresco, Pennsylvania 5th grader who was barred by her school's principal from handing out to fellow students flyers inviting them to a Christmas party sponsored by her church.  The complaint (full text) in K.A. v. Pocono Mountain School District, (MD PA, filed 3/4/2011), alleges that plaintiff's 1st and 14th Amendment rights, as well as her rights under Pennsylvania's Religious Freedom Protection Act, were violated by rules that require school approval of materials from special interest groups and bar student speech that seeks to establish the supremacy of a particular religious denomination or point of view.  The suit alleges that the school has imposed a content-based restriction on the student since school district policies permit other students to distribute literature and invitations during non-instructional time and permit community groups to distribute flyers through a take-home flyer forum and a literature distribution table. It also alleges violation of the student's free exercise rights, vagueness and overbreadth of the school policies and establishment clause and equal protection violations. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Suit Challenges Zoning Denial For Electronic Bible Verse Sign

On Monday a lawsuit was filed in federal district court against Chichester, New Hampshire by a non-profit organization that displays Christian scriptures on road signs on busy commuter streets. The complaint (full text) in Signs for Jesus v. Town of Chichester, (D NH, filed 3/7/2011), challenges the denial by the town's Planning Board of site plan approval for the display of an electronic message sign carrying Bible verses. The lawsuit alleges that the zoning denial violates the 1st and 14th Amendment rights of plaintiff, as well as the Religious Land Use and Institutionalized Persons Act. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Vatican UN Representative Encourages Religious Freedom

Zenit reports on the address on religious freedom given last week at the United Nations Human Rights Council by Archbishop Silvano Tomasi, permanent representative of the Holy See to the U.N. offices in Geneva. Citing a study that says 75% of those killed because of religious hatred are Christians, Tomasi urged that states have a responsibility to create an environment that encourages religious freedom. He also said that the practice of religion needs to be defined broadly-- it includes more than just acts of worship.

Canadian Town's Public Schools-- All Catholic-- Do Not Offer Secular Alternative

All the schools in the Canadian town of Morinville, Alberta (near Edmonton) are government supported Catholic schools. Yesterday's Toronto Globe and Mail reports that some parent are complaining about the lack of a secular alternative.  Alberta law permits parents to take their children out of religion classes. However parents say religion permeates the entire curriculum of the schools. Provincial Education Minister Dave Hancock says he will meet with the Greater St. Albert Catholic Regional Division that runs the schools to encourage them to find a solution so parents that want a secular education for their children can obtain it.

British Tribunal Rules Anti-Hunting Beliefs Protected Under Employment Discrimination Regulations

Britain's  Employment Equality (Religion or Belief) Regulations 2003 (Sec. 2) include "philosophical belief" in the definition of religion or belief. Yesterday's London Telegraph reports that an employment tribunal judge has ruled that the anti-hunting view of activist Joe Hashman are protected under the law's employment discrimination prohibitions.  Hashman secretly filmed celebrity chef Clarissa Dickson Wright attending an illegal rabbit hunting event. He was fired by the owners of the garden center at which he worked. The owners are hunting fans.  Hashman sued and an employment tribunal judge ruled that Hashman's deeply held beliefs about the environment, animal rights, veganism and opposition to hunting are protected as under the religion or belief regulations. Hashman's employers claim he was fired for other reasons. (See prior related posting.)

Kentucky Appeals Court Upholds Billboard Limits Applied To Religious Messages

In Harston v. Commonwealth of Kentucky, (KY App., March 4, 2011), the Kentucky Court of Appeals upheld the application of the permit requirements of Kentucky's Billboard Advertising Act to several billboards carrying religious messages that were placed within 660 feet of an Interstate highway. The court rejected the argument that the signs come under the statute's exception for advertising of on-premise activities.  Petitioners contended that the exception applies "because the signs promote Christianity which is occurring on the family farms where the signs are located." The court also rejected petitioners' challenge under the Religious Land Use and Institutionalized Persons Act, finding that the Act promotes a compelling governmental interest using the least restrictive means. (See prior related posting.)

EEOC Sues Over Failure To Accommodate Sabbath Observance of Job Applicant

The EEOC announced last week that it has filed a Title VII employment discrimination suit against Convergys Corp. ewhich refused to hire a member of the Hebrew Israelite faith who was unable to work on his Sabbath.  The EEOC says the company should be able to accommodate applicant Shannon Fantroy's request not to work from sunup to sundown on Saturday since he would be woking at a large call center. An EEOC regional attorney said: "Refusing to hire a person in this situation without even discussing a possible accommodation for his religion is unlawful discrimination."

Suit Charges University of California With Tolerating Dangerous Anti-Semitic Climate

Today's Daily Californian reports on a lawsuit filed in a California federal district court by a UC Berkeley graduate against Berkeley and the University system over a series of anti-Semitic incidents.  The lawsuit was filed by Jessica Felber who was co-president of Tikvah, the campus Zionist group. The suit says she was assaulted last year by Husam Zakharia, a Berkeley alumnus who was a member of Students for Justice in Palestine.  Zakharia was arrested but never charged in the incident. Felber's complaint says that a number of incidents over the past ten years have led to a dangerous anti-Semitic climate on UC campuses and that the UC system has failed to adopt policies to address the problem.  UC says the charges are unfounded while Students for Justice in Palestine (SJP) call the suit an assault on free speech. The suit comes as SJP begins its "Israel Apartheid Week" on campus.

UPDATE: Here is the First Amended Complaint in the case, filed May 19, 2011.

Students Protest Removal of 10 Commandments From Schools

In response to the decision taken last month by the Giles County, Virginia school board to remove copies of the Ten Commandments that had hung in the county's schools for many years (see prior posting), 200 high school students staged a protest.  WDBJ News reports that yesterday the students marched out of Giles High School where they were met by parents and community leaders. Together the group prayed for a return of the Ten Commandment displays. One students said: "This is America and we can have our Ten Commandments and if they don't like it, they can get out." Another protested: "It's our choice to have the Ten Commandments. It's not the law's choice or anything, it's not the state’s choice or anything. It’s Giles County’s choice. It’s the kid’s choice." Freedom from Religion Foundation which had originally complained about the displays responded: "It is not only unconstitutional to post one religion's edicts on the walls of public schools, but it is bad manners."

Cert. Denied In Challenge To "In God We Trust" Motto

The U.S. Supreme Court yesterday denied review in Newdow v. Lefevre, (Docket No. 10-893, cert. denied 3/7/2011). (Order List.) In the case, the 9th Circuit rejected an Establishment Clause challenge to the inscription of "In God We Trust" on U.S. coins and currency. It also rejected rejected on standing grounds plaintiff Michael Newdow's broader claim that the mere adoption of "In God We Trust" as the national motto was unconstitutional. (See prior posting.) The San Francisco Chronicle, reporting on the Supreme Court's action, quoted plaintiff Michael Newdow who said he would now refile the suit elsewhere.

Supreme Court Denies Review In Student Organization Funding Case

The U.S. Supreme Court today denied certiorari in Walsh v. Badger Catholic, Inc., (Docket No. 10-731, cert. denied 3/7/2011). (Order List). In the case, the 7th Circuit in a 2-1 decision invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing or religious instruction by recognized student groups. (See prior posting.)

In a related development, last month Indiana University changed its policy that denied Student Association funding for religiously based student groups. The Indiana Daily Student last week reported that the change in policy came in connection with an application by Impact Movement for funds for its members to attend a national conference which would involve religious proselytizing and sectarian activities.