What Is At Issue In the Hosanna-Tabor Case?

Today the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (See prior posting.) The petition for certiorari describes the Question Presented as follows:

The federal courts of appeals have long recognized the "ministerial exception," a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

There are several related and overlapping rules of law in cases in which private parties are suing religious organizations.  One is the constitutionally-based "ecclesiastical abstention" doctrine which holds that civil courts should not entangle themselves in disputes that involve questions of theological interpretation, church discipline, religious law, religious custom or ecclesiastical rule.

A related but separate question arises when a regulatory statute includes a specific exemption for religious organizations.  Here the scope of the exemption depends upon the specific statutory language. Thus a provision in the Americans With Disabilities Act allows religious organizations and schools to give an employment preference to individuals of a particular religion, and allows religious organizations to require employees to conform to the religious tenets of the organization.

The third legal rule is the one involved in Hosanna- Tabor-- the "ministerial exception." This is a judicially created exception to the application of employment discrimination laws. The exception originated out of constitutional concerns over judges imposing themselves in decisions by congregations about who will serve them as clergy. If a congregation fires a pastor for giving uninspiring sermons, the government should not decide whether that evaluation is correct.  If a synagogue refuses to employ a rabbi because he is not sufficiently traditional in his beliefs, no court should be in the business of deciding whether that is an accurate assessment.  However sometimes the reasons for firing, or refusing to hire, a member of the clergy may be ones which, in other employment contexts, would be impermissible. The action may have been based on considerations such as gender, race, age or disability. Often the parties have different views of the reasons underlying an employment decision and the court is being asked to determine the true motivation.  Where the ministerial exception applies, a court will not consider claims that improper motivations were involved. So the ministerial exception deprives clergy of employment protections available to all other employees and makes serving as a member of the clergy a risky occupation.

Hosanna- Tabor raises the question of how many other employees of religious organizations should be subject to the same risks of having no recourse when they have been dismissed for frivolous or perverse reasons having no relation to religious doctrine. The 6th Circuit held that whether an employee is a "minister" for purposes of this exemption depends on whether "the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." It found that Cheryl Perich's duties were not primarily religious so she could pursue a claim that she was dismissed in violation of the Americans With Disabilities Act. Some other circuits have concluded that the ministerial exception applies so long as an employee of a religious organization has some religious duties or responsibilities, even if those are not the person's primary duties. That test would have precluded Perich from suing.

Supreme Court Grants Review In "Ministerial Exception" Case

The U.S. Supreme Court today granted certiorari in a case involving the scope of the "ministerial exception" to federal anti-discrimination laws.  The case is Hosanna- Tabor Church v. EEOC, (Docket No. 10-553, cert. granted 3/28/2011). (Order List.) In the case, the 6th Circuit held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act and are not "ministerial employees" who are excepted from coverage. (See prior posting.)  Scotus blog has links to various documents in the case.

Court Rules On Discovery Motions In Clergy Sex Abuse Case

In Dotson v. Hartford Roman Catholic Diocesan Corp., 2011 Conn. Super. LEXIS 386 (CT Super., Feb. 17, 2011), a Connecticut trial court ruled on a number of discovery motions filed by a priest, two Catholic churches and the Hartford Diocese in a lawsuit by a victim of alleged clergy sexual abuse. Among its rulings were the following. The court agreed to "issue a protective order preventing the plaintiff from disseminating any videotaped deposition testimony, transcripts of such testimony and any other information obtained through discovery and not filed with the court in order to protect the parties' right to a fair trial." The court also ruled that it would inspect in camera the priest's personnel file to determine which documents should be released in discovery. The court rejected the diocese's argument that the 1st Amendment protected it from producing a secret archival file. The court said: "it is difficult for the court to imagine that the compelled disclosure of certain documents that are maintained pursuant to canon law would result in an entanglement of the court in church matters sufficient to result in a violation of the diocese's first amendment rights."

Indian Court Says Priest's Celibacy Vow Does Not Invalidate Marriage or Bequest

A court in New Delhi, India has upheld the will of a Christian priest who secretly converted to Islam, married and bequeathed property to his son. Today's Times of India reports that the priest's family challenged the validity of the will and the priest's marriage on the ground that the priest took a vow of celibacy. The court wrote: "To marry is a fundamental right of a person, being an integral part of right to life and personal liberty. Tenets of a religion may interdict its followers from becoming a priest (father ) but cannot invalidate a marriage, which is legal otherwise."

Recent Articles of Interest

From SSRN:

• Michael Heise and Gregory C. Sisk, Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, (Michigan Law Review, Vol. 110, 2012).
• Mark L. Movsesian, Foreword: Laicite in Comparative Perspective, (Journal of Catholic Legal Studies, Vol. 49, 2010).
• Alexander Volokh, Everything We Know About Faith-Based Prisons, (March 17, 2011).
• Will Shen and Rohan Bruce Edward Price, Confucianism, Employee Activism and the Case for Moral Relativism, (March 18, 2011).
• Snehashish Ghosh, The Tryst of Destiny: Political Obligation and Religion, (March 25, 2011).
• Luke Goodrich, The Health Care and Conscience Debate: Obama Strikes a Blow Against Conscience, (March 15, 2011).
• Chase D. Anderson, A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry, (Duke Law Journal, Vol. 60, No. 6, p. 1413, 2011).
• Stephen Thuku Mbaaro, Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya, (March 26, 2011).
• Mridushi Swarup, Protection of Scheduled Tribes Under the Indian Constitution: Promise and Performance, (March 20, 2011).
• James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, (Columbia Law Review, Forthcoming).

From SmartCILP:

• A Dialogue Commemorating the Fiftieth Anniversary of To Kill a Mockingbird's Publication. Article by Lance McMillian; response by Judy M. Cornett; reply by Lance McMillian, [Table of Contents], 77 Tennessee Law Review 701-802 (2010).

Muslim Brotherhood Could Become Important Politically In Libya

CNN on Friday reported that the Muslim Brotherhood in Libya could become an important force in a post-Gadhafi Libya. Founded in the 1950's, the Libyan Brotherhood is comprised mainly of religious educated middle class Libyans and of individuals on university campuses in Tripoli and Behghazi. Dr. Abdulmonem Hresha, a prominent member of the Libyan Brotherhood who now lives in London, says if the organization forms a political party, it will embrace a multi-party democracy, but will press for legislation based on Qur'anic principles such as the continued ban on the sale of alcohol. CNN speculates that the Brotherhood could siphon off support that might otherwise go to al Qaeda or other Islamist groups.

Recent Prisoner Free Exercise Cases

In Sayed v. Profitt, (10th Cir., March 18, 2011), the 10th Circuit rejected the contentions of a Muslim prisoner that he was entitled to a complete shower before the Jum'ah service. Contrary to the inmate's contention, the court found he could perform partial ablution at the sink in his cell and thereby comply with Muslim beliefs.

In LaPine v. Caruso, 2011 U.S. Dist. LEXIS 27987 (WD MI, March 18, 2011), a Michigan federal district court allowed an inmate to proceed against two defendants on his equal protection claim that alleges defendants limited Native American services to 3-5 minutes and did not permit the Prisoner Benefit Fund to be spent on herbs for Native American religious ceremonies.

In Bowers v. Burnett, 2011 U.S. Dist. LEXIS 27929 (WD MI, March 18, 2011), a Michigan federal district court adopted a magistrate's conclusion (2009 U.S. Dist. LEXIS 130756, July 27, 2009) that rejected a Buddhist inmate's claims growing out of the denial to him of a vegan diet. The court held: "Plaintiff's claims for declaratory and injunctive relief are moot. Plaintiff's claims against Defendants in their official capacity are barred by the Eleventh Amendment. The RLUIPA does not authorize Plaintiff's claims against Defendants in their individual capacities. Alternatively, Defendants are entitled to qualified immunity on all of Plaintiff's claims against them in their individual capacities."

In Smittle v. Nevada Department of Corrections, 2011 U.S. Dist. LEXIS 28520 (D NV, March 8, 2011), a Nevada federal district court rejected without prejudice defendants' motion to dismiss for lack of exhaustion a Native American inmate's complaint regarding relocation of the prison's sweat lodge.

In Spencer v. Whorton, 2011 U.S. Dist. LEXIS 28922 (D NV, March 7, 2011), a Nevada federal district court largely accepted the recommendation of a magistrate (2010 U.S. Dist. LEXIS 142160, Nov. 18, 2010) and dismissed, partly on mootness grounds, an inmate's complaints regarding interference with Asatru/Odinist religious practices.

In Mueller v. Jabe, 2011 U.S. Dist. LEXIS 28891 (WD VA, March 18, 2011), a Virginia federal district court concluded that a former inmate's rights under the 1st and 14th Amendments and RLUIPA were not violated when the Department of Corrections failed to permit him to observe Catholic Holy Days of Obligation b y refraining from work.

In Colliton v. Gonzalez, 2011 U.S. Dist. LEXIS 29954 (SD NY, March 23, 2011), a New York federal district court denied an inmate's motion for reconsideration of his claim that his rights were violated when he was prevented from attending Catholic Mass while housed in the close custody housing unit at Rikers Island.

In Jones v. Oconee County Jail, 2011 U.S. Dist. LEXIS 29365 (MD GA, March 22, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29387, Jan. 25, 2011) and permitted an inmate to move ahead with his claim that jail authorities permitted Christian worship services but not Islamic ones, and that he was denied kosher meals that conform to his religious needs as a Muslim.

In Rivera v. Hartley, 2011 U.S. Dist. LEXIS 30005 (ED CA, March 22, 2011), a California federal magistrate judge recommend rejection of an inmate's Establishment Clause challenge to a finding that he was not suitable for parole. Plaintiff claimed the denial stemmed from his refusal to attend religion-based AA or NA programs. However the court concluded that the parole decision was based on his non-participation in any self-help programs concerning anger management or substance abuse.

In Hill v. Sisto, 2011 U.S. Dist. LEXIS 29415 (CD CA, March 223, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29424, Jan. 26, 2011), concluding that an inmate's claim that his rights under the Establishment Clause were violated in his parole hearing is not an issue that a federal court can consider in a habeas corpus proceeding. Plaintiff claimed his rights were violated when he was required to participate in a religion-based AA or NA program without some evidence of drug or alcohol use in prison.

Muslims Claim Bad Treatment At U.S. Border Upon Entry From Canada

The Michigan Chapter of the Council on American Islamic Relations this week said that it is receiving dozens of complaints about inappropriate questions and treatment of Muslims crossing into the United States from Canada through border check points in Detroit and Port Huron, Michigan. Yesterday's Detroit News says the complaints range from those of a dozen Somali women who say they were searched in invasive and humiliating ways, to that of an Imam who was handcuffed, searched and questioned for over three hours at Detroit Metropolitan Airport. Muslims say they are often questioned by border guards about their religious practices.

Army Training Its Chaplains For Repeal of "Don't Ask, Don't Tell"

CNN reported yesterday that the Army Chaplain Corps for the last month has been training its 2900 members on what repeal of the "Don't Ask, Don't Tell" policy will mean for chaplains.Chaplains who are unable to reconcile themselves to the policy will be allowed to apply for a voluntary separation from the military. So far, no religious group that endorses chaplains has said that it will withdraw its endorsements to prevent their chaplains from serving. Indeed, so far no individual chaplain has asked for a voluntary separation. A chaplain corps spokesman said: "There's no change for the chaplain corps. We'll continue representing our endorsing groups and balance that with our role as officers and soldiers serving all."

Northwestern States Jesuit Order Reaches $166M Settlement Of Sexual Abuse Claims

The largest settlement ever in a clergy sexual abuse case has been reached between the Oregon Province of the Society of Jesus and 470 victims, most of whom were abused at Native American mission schools by Jesuit priests from the 1940's to the 1990's. CNN reported yesterday that the Province (comprised of Jesuits in five Western states), which is now in bankruptcy (see prior posting), has settled the claims for $166.1 million. Of that, $118 million will be paid by the Province's insurers. In 2007, before filing for bankruptcy, the religious order agreed to pay $50 million to to dozens of Alaska Natives who claimed sexual abuse by Jesuit priests over a 30-year period. (See prior posting.)

Federal Court Refuses To Dismiss Challenge To Zoning Denial For Bible Camp

in Eagle Cove Camp and Conference Center, Inc. v. Town of Woodboro, Wisconsin, (WD WI, March 24, 2011), a Wisconsin federal district court rejected ripeness and jurisdictional defenses put forward by a Wisconsin town in a challenge to its denial of zoning approval for a year-round Bible camp. Plaintiffs claimed the denial violated RLUIPA, the 14th Amendment's equal protection clause, the 1st Amendment's free exercise clause, freedom of worship protections of the state constitution, the federal ADA and the Rehabilitation Act. (See prior related posting.) [Thanks to Art Jaros for the lead.]

Montreal Cabbie Can Keep Some Religious Objects In Taxi Under Settlement Agreement

In Canada, Montreal cabbie Arieh Perecowicz has reached an out-of-court settlement with the Montreal taxi bureau and has agreed to drop his appeal of four tickets he received 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. Some of the items for which Perecowicz was cited were ones reflecting his Jewish faith. (See prior posting.) According to today's Toronto Globe and Mail, under the settlement city officials will permit Perecowicz to keep two mezuzahs (small parchment scrolls) and a photo of former Lubavitch leader Rabbi Menachem Schneerson in his cab. The city will also withdraw four outstanding citations issued to Perecowicz, but the cab driver will still have to pay the four original tickets, along with fines of over $1000, which are the subject of his current appeal. In addition, the Bureau du taxi has issued a new directive to its inspectors encouraging them to show tolerance toward religious objects in cabs and not issue citations unless the religious objects pose a danger to passenger safety or are used for proselytizing.

Times Says Muslim Brotherhood Is Has Growing Political Power In Egypt

In a front page analysis of developments in Egypt, the New York Times today says:

In post-revolutionary Egypt, where hope and confusion collide in the daily struggle to build a new nation, religion has emerged as a powerful political force, following an uprising that was based on secular ideals. The Muslim Brotherhood, an Islamist group once banned by the state, is at the forefront, transformed into a tacit partner with the military government that many fear will thwart fundamental changes.

It is also clear that the young, educated secular activists who initially propelled the nonideological revolution are no longer the driving political force — at least not at the moment

Arizona Legislature Passes Bill Protecting Religious Expression and Religious Groups At Colleges

The East Valley Tribune reported yesterday that the Arizona Senate has passed HB 2565 that will bar colleges and universities from discriminating against students because of their religious beliefs or religious expression and will permit religious and political student groups to exclude members who do not share their beliefs. The bill was passed by the House earlier this month.

The bill provides that when a classroom assignment or discussion requests students' viewpoints, a student may not be rewarded or punished based on the religious content of that viewpoint. It provides that a university may not discipline a student in a counseling, social work or psychology program because the student refuses to counsel a client about goals that conflict with the student's sincerely held religious belief so long as the student consults with the instructor to determine the proper course of action to avoid harm to the client. The bill goes on to provide that universities may not refuse to recognize student groups because of the religious, political or philosophical content of the group's speech, including worship.  It provides that political and religious student groups may select leaders and members, resolve disputes and order the group's internal affairs according to their political or religious mission. Finally the bill assures that students have the right to speak, carry sign and distribute flyers in public forums unless the university has a compelling interest to regulate the speech.

UN Human Rights Council Adopts Resolution on Freedom of Belief That Drops "Defamation of Religion" Concept

In a major policy shift, the 47-member United Nations Human Rights Council yesterday unanimously adopted a Resolution on Freedom of Religion or Belief (full text) which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief.  Reuters and the Washington Post both quote the U.S.-based Human Rights First campaign that called the resolution "a huge achievement because...it focuses on the protection of individuals rather than religions." For many years, the Organization of the Islamic Conference had pressed to create a concept of "defamation of religion" that has been widely criticized in the United States and by a number of other Western countries. (See prior posting.) Muslim countries set aside that 12-year campaign and joined in approving yesterday's resolution.

The U.S. Commission on International Religious Freedom issued a statement applauding the Human Rights Council's action.  USCIRF said in part that it welcomes the Council's "significant step away from the pernicious 'defamation of religions' concept."  It explained:

The defamation concept undermines individual rights to freedom of religion and expression; exacerbates religious intolerance, discrimination, and violence; and provides international support for domestic blasphemy laws that often have led to gross human rights abuses. The Organization of the Islamic Conference (OIC) has promoted this flawed concept at the United Nations for more than a decade.

USCIRF and others, including the State Department, members of Congress, and NGOs, have worked hard against the defamation of religions concept for years. USCIRF specifically applauds Secretary Clinton and her team for today’s result. We also thank Representatives Eliot Engel (D-NY), Christopher Smith (R-NJ), Shelley Berkley (D-NV), and Frank Wolf (R-VA), for their leadership roles on this issue....

Egypt Adopts New Law On Political Parties Barring Parties Based On Religion

M and C reports that Egypt's interim cabinet on Wednesday approved a new law that creates a framework for creating political parties.  Reuters has summarized the provisions of the new law:

* The parties' principles, programmes, activities and selection of leaders and members must not be based on religion, geography or race. There should be no discrimination on the basis of sex, language, ethnicity or religion.
* Parties must not establish military or paramilitary wings, must not be part of any foreign political organisation and must declare their principles, goals and financial means.
* Parties must provide written notification of their intention to begin work to a parties committee made up of judges.... The notification must be signed by 1,000 founder members....
* Parties will enjoy legal status and can start work 30 days after providing their paperwork to the parties committee, as long as the committee does not object....

Al Masry Al Youm says that Coptic Christians welcome the new law.  A member of the Muslim Brotherhood says he is preparing to create a party that will not be religious based. The Muslim Brotherhood itself will apparently be able to continue to exist since it is a political group, not a political party.

Company's Faith-Based Sales Training Challenged By Former Employee

Yesterday's Pittsburgh (PA) Tribune-Review reports on a lawsuit filed against a Beaver County (PA) bathroom remodeling company by a woman who alleges she was forced out of her job with the company by the company's insistence that she attend faith-based training sessions to increase her trust in God.  Jo A. Yochum says that when she was hired by Bath Fitter of Pittsburgh, she agreed to have $90,000 withheld from the commissions on her first $3 million in sales to pay for a specialized sales training course. She says the course turned out to be little more than religious proselytizing and indoctrination. The company says that Yochum had an opportunity to review the training program before she accepted it, and that she previously endorsed the training program.

Suit Challenges New York City's Disclosure Requirements For Crisis Pregnancy Centers

A federal lawsuit was filed yesterday on behalf of a number of crisis pregnancy centers challenging on 1st Amendment grounds New York City's recently-enacted ordinance that requires pregnancy services centers to make various disclosures about the services they do and do not offer. The law requires centers to disclose (in Spanish and English) on a sign in their waiting room, on their website, in any ads and orally to clients whether they provide referrals for abortion or contraceptive services or prenatal care . They must also disclose whether they have a medical provider on staff. (See prior posting.) The complaint (full text) in Evergreen Association, Inc. v. City of New York, (SD NY, filed 3/24/2011), alleges that the ordinance violates state and federally protected freedoms of speech, association, assembly and the press and that it is unconstitutionally vague in defining the centers and the kinds of ads that are covered. American Center for Law and Justice which filed the lawsuit issued a press release emphasizing their claim that the law "unconstitutionally compels Plaintiffs to speak messages that they have not chosen for themselves, with which they do not agree, and that distract from and detract from the messages they have chosen to speak."

Teaching of Religion In Australian Schools Is Challenged

In Australia, a claim has been filed with the Equal Opportunity Commission against the state of Victoria challenging the teaching of religion in state schools. ABC News reported yesterday that parents claim that if their children opt out of religious classes, they are sometimes left unsupervised. They claim that it is discriminatory to force young children to identify themselves as non-believers and walk out of the classroom.

Florida Judge Issues Explanatory Opinion In Mosque Arbitration Case

On Tuesday a Florida state circuit court judge issued a written opinion in Mansour v. Islamic Education Center of Tampa, Inc., (FL Cir. Ct., March 22, 2011), in order to "discuss the facts, procedural history and analysis" that led to a now-controversial order that Islamic law would be used in deciding whether to enforce an arbitration award between a mosque and certain trustees of the mosque who had been removed from office. (See prior posting.) The court explained:

From the outset of learning of the purported arbitration award, the court’s concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law. Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque....

The court has concluded that as to the question of enforceability of the arbitrator's award the case should proceed under ecclesiastical Islamic law.... The court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter.

[Thanks to Michael A. Helfand via Religionlaw for the lead.] 

9th Circuit Continues Ban On Same-Sex Marriages In California As Appeals Go On

Scotus Blog reports that the 9th Circuit yesterday, in the ongoing challenge to the constitutionality of California's Proposition 8, refused to lift its earlier order barring same-sex marriages while appeals of the district court's invalidation of Prop 8 were proceeding through the courts. Yesterday's order (full text) in the case (which is now captioned Perry v. Brown) said the court was denying plaintiffs' motion "at this time." Currently the case is winding its way through the courts on the issue of whether plaintiffs have standing to challenge Proposition 8. (See prior posting).

Recent Prisoner Free Exercise Cases

In Coleman v.Caruso, 2011 U.S. App. LEXIS 5328 (6th Cir., March 16, 2011), the 6th Circuit rejected an inmate's claim that prison policy on administrative segregation violates prisoners' free exercise rights as protected by RLUIPA.  The court concluded that limits on television available and on battery operated devices in administrative segregation did not place a substantial burden on the free exercise of religion.

In Ajaj v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 26393 (D CO, March 10, 2011), a Colorado federal district court rejected on various grounds, including failure to allege personal participation by various defendants in the alleged violations, a Muslim inmate's complaints that his practice of religion was burdened by lack of halal meals, and interference with his ability to celebrate religious holidays, participate in congregational prayer and obtain certain religious items.

In Greenwood v. Maketa, 2011 U.S. Dist. LEXIS 26911 (D CO, March 3, 2011), a Colorado federal district court allowed an inmate to proceed against some defendants named in the suit on his complaint that he was not allowed to mail out religious study guides, and that despite his switch from Christianity to the Muslim faith he is being forced to eat non-kosher meals and was not [sic.] removed from the Ramadan list.

In Knight v. Mulvaney, 2011 U.S. Dist. LEXIS 26778 (WD MI, March 15, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26649, Feb. 4, 2011) and dismissed claims by an inmate (who has now been released) that his rights were violated when he was designated a security threat group leader for practicing the tenets of Nation of Islam in organizing NOI services, and for possessing religious literature from the group.

In Smith v. California Board of Parole Hearings, 2011 U.S. Dist. LEXIS 26876 (CD CA, March 14, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26849, Feb. 9, 2011), and rejected an inmate's claim that his Establishment Clause rights were violated when, in the hearing that led to his denial of parole, board members discussed his failure to continue going to AA/NA programs. Petitioner said he had objections to the religious nature of the programs.

In Riley v. Beard, 2011 U.S. Dist. LEXIS 27092 (MD PA, March 14, 2011), a Pennsylvania federal district court held that RLUIPA was not violated by a prison policy that barred Muslim prisoners from consuming special foods available for purchase for Muslim religious feasts when they did not have money to pay for them. Inmates who cannot pay are allowed to celebrate the feast with the regular prison menu.

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.