San Francisco City Attorney's Office Says Narrow Circumcision Ban Would Be Unocnstitutional

As previously reported, a lawsuit was filed in state court in California last month by Jewish and Muslim families and two doctors attempting to prevent a proposed ban on circumcision from appearing on the November ballot in San Francisco. The lawsuit argues that the city ordinance would be pre-empted by state law that bans cities from regulating state-licensed physicians.  Now, responding to the lawsuit, the Office of the San Francisco City Attorney announced that it has filed a brief with the court contending that if the plaintiffs prevail, the resulting ordinance that would apply only to religious circumcisions performed by non-physicians will be unconstitutional. Chief Deputy City Attorney Therese Stewart said:

Especially in light of disturbing campaign materials that evoke the ugliest kind of anti-Semitic propaganda, the City has an obligation to petition the Court to remove the measure from the ballot in its entirety if it is preempted as applied to medical professionals. San Franciscans cannot be asked to vote on whether to prohibit religious minorities from engaging in a particular religious practice, when the same practice may be performed under non-religious auspices.

Police Enforcement of Trespass Notice Against Pastor Is Not Free Exercise Violation

Spanish Church of God of Holyoke v. Scott, 2011 U.S. Dist. LEXIS 70187 (D MA, June 20, 2011), involves a lawsuit against the city of Holyoke, Massachusetts and its police chief by a local congregation, the Spanish Church of God; its clergyman, Bishop Juan Garcia; and the parent organization of the congregation, Church of God International, Inc.  Some church members disagreed with the appointment of Garcia as interim pastor, and this led to heated discussions between Garcia and them. The church's board of directors-- or at least persons claiming to be the board-- had their attorney issue a Notice of Trespass to Garcia. One day later, a member of the board called Holyoke police complaining that Garcia was trespassing. Police responded to the call, but ultimately took no action because they decided that the matter was a civil dispute to be resolved between the parties.  However plaintiffs sued claiming that the city and the police chief violated their free exercise rights by enforcing the Notice of Trespass. They contended that police were required to honor the determination by the church's parent body that Garcia was to be its pastor.  The court held, however, that "Chief Scott, in enforcing a valid trespass notice, did not encroach on the protections afforded religious institutions with regard to internal organizational disputes."

Delaware County Sued Over Lord's Prayer At Council Meetings

In Sussex County, Delaware on Thursday, four county residents filed a federal lawsuit against the county council and its president challenging the practice of consistently opening Council meetings with the recitation of the Lord's Prayer.  The complaint (full text) in Mullin v. Sussex County, Delaware, (D DE, filed 6/30/2011), alleges that the practice violates the Establishment Clause of the U.S. Constitution as well as the "no preference" clause of Delaware's constitution.  Americans United issued a press release announcing the filing of the law suit. [Thanks to Don Byrd for the lead.]

Settlement Reached In Long-Running Santa Rosa Florida School Consent Decree Challenge

A settlement agreement was reached today in the long-running litigation challenging the consent decree that the Santa Rosa County (Florida) School District agreed to in litigation against it challenging religious practices in the schools. (See prior postings 1 and 2)  A Settlement Agreement, Waiver and Release (full text) along with a proposed modified consent decree (full text with changes marked) were filed with the court today in Allen v. School Board for Santa Rosa County, Florida, (ND FL, filed 7/1/2011). The numerous changes clarify, and in some cases narrow, the scope of the consent decree. For example, the consent decree contains several provisions barring prayer by school officials. The modified decree makes it clear that "'Prayer' does not include customary, polite expressions and greetings, including 'God Bless You' or 'Thank Heavens,' or a student’s religious expression responsive to a legitimate academic class assignment."

The agreement also provides for the school board to pay attorneys' fees and costs totally $265,000, mostly to Liberty Counsel which represented plaintiffs in the case. The ACLU waived its claim for attorneys fees against the school board.  The settlement still must be approved by the court.

In press releases, each side has characterized the settlement agreement rather differently. The ACLU said that the changes merely "reinforce and clarify the basic premise of the original Consent Decree – that official, government sanctioned religious activities are prohibited under the Constitution while individual religious expressions are protected by the Constitution."  Sharply criticizing the challenge to the original consent decree that was brought by Liberty Counsel, an ACLU attorney said:

They came in after the fact, stirred up some controversy, raised some money on this invented issue, and will leave town likely with $265,000 in taxpayer money that would be better spent on the students in our community.

Liberty Counsel, on the other hand said:

on the eve of Independence Day, Liberty Counsel has restored freedom to the Santa Rosa County, Florida, School District teachers, staff, students, and members of the community.... The Consent Decree that led to criminal indictments against school employees for prayer and banned "God Bless" in Santa Rosa County schools will now be gutted and revised. The amended Consent Decree will restore dozens of constitutional religious freedoms that were previously denied.

Canadian Supreme Court Will Review Terrorism Law's Motive Requirement

According to Canadian Press, Canada's Supreme Court yesterday agreed to review three cases raising the question of whether the definition of "terrorist activity" in Canada's anti-terrorism law violates Canada's Charter of Rights and Freedoms. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." Defendants in the cases contend that this invites racial and ethnic profiling and operates to focus prosecutorial scrutiny on political, religious and ideological beliefs. For more on the the Ontario Court of Appeals decision below in one of the cases, see prior posting.

Controversial Charter School Loses Last Efforts To Stay Open

A Minnesota federal district court yesterday refused to issue a temporary restraining order or a preliminary injunction to allow the Tarek ibn Ziyad Acedmy to continue to operate after the July 1 expiration of the contract with its current sponsor. The school is also embroiled in litigation with the ACLU over whether its operations violate the Establishment Clause by promoting Islam. (See prior posting.) In Tarek ibn Ziyad Academy v. Islamic Relief USA, (D MN, June 30, 2011), the court held that the controversial charter school is unlikely to prevail either on its challenge to a Minnesota statute that requires charter school sponsors to be in-state corporations, or in its contract claims against its chartering organization. TiZA had attacked the state statute on due process, equal protection, commerce clause and contracts clause grounds. The Minneapolis Star Tribune reports on the decision. Following the court's decision, TiZA filed a Notice of Voluntary Dismissal of its lawsuit.

The court's decision follows a ruling last night by the Minnesota Department of Education denying a second request by Novation Education Opportunities to become the school's authorizer, according to Inner Grove Heights Patch). (See prior related posting.) All of this means that TiZA likely has no choice but to close.

UPDATE: According to the St. Paul Pioneer Press, on Thursday TiZA filed for bankruptcy.

Bangladesh Constitution Amended: Secular State With Islam As the State Religion

The Daily Star reports that in Bangladesh yesterday, Parliament passed the 15th constitutional amendment bill by a vote of 291-1.  While the most important changes include ones that modify the system for parliamentary elections and again allow religion-based parties (see prior posting), the bill also addresses other religious issues. Secularism was reintroduced as one of the four fundamental principles of the nation. However, Islam was retained as the state religion and the Arabic phrase "Bismillahir Rahmanir Rahim" (and its translation "In the name of Allah, the Beneficent, the Merciful/ In the name of the Creator, the Merciful") was made a part of the constitution. A new clause added to the constitution provides: "The state shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects, and communities." According to MSN News, Hindus and other religious minorities in Bangladesh strongly criticized the decision to retain Islam as the state religion.

UPDATE: On July 3, Bangladesh's President Zillur Rahman gave his consent to the 15th constiutional amendment bill. (Daily Star).

Tea Party Candidate Charges Her Opponent Rep. Keith Ellison Is Radical Islamist

The American Independent yesterday reported on the House of Representatives race in Minnesota's 5th Congressional District.  Incumbent Keith Ellison is being challenged by Tea Party Nation candidate Lynne Torgerson who accuses Ellison of being a "radical Islamist" who fails to oppose banning Shariah law in the United States. She says Ellison does not hold the U.S. Constitution supreme over Islamic law.  Apparently her charge is based on Ellison's statement that the U.S. Constitution "is the bedrock of American law." She complains that he did not use the term "supreme". Ellison charges that Torgerson is running a campaign based on hate, division and fear. In the 2010 Congressional race, Ellison received 68% of the vote, and Torgerson received less than 4%.

CAIR Is Among Groups Whose Non-Profit Status Was Lost For Non-Filing

Earlier this month, the Internal Revenue Service released a list of some 275,000 non-profits had lost their tax-exempt status because they failed to file their required Form 990 or 990-N for thee consecutive years. (See prior posting.) Yesterday The Tennessean reported that among the groups whose non-profit status has expired is the sometimes controversial national Council on American Islamic Relations. A CAIR spokesman said the problem stems from an incorrect filing several years ago, but attempts by a Tennessean reporter to obtain a copy of current filings from CAIR have been unsuccessful. Some CAIR critics charge that the organization is hiding financial information from the public. Many local CAIR chapters that are separately incorporated have properly filed returns.

Rhode Island Legislature Passes Civil Unions Law With Broad Religious Exemptions

Yesterday, the Rhode Island state Senate passed, and sent to the Governor for his signature, HB 6103 which authorizes same-sex civil unions. The Rhode Island House passed the bill in May. Under the bill, parties to a civil union have the same rights and responsibilities as married couples.  The bill contains a broad religious exemption provision.

[N]o religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:
(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or
(2) To solemnize or certify any civil union; or
(3) To treat as valid any civil union;
if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.

The New York Times reports on passage of the legislation. It quotes gay rights advocates who complain that the provision allowing religious organizations to refuse to treat civil unions as valid means that Catholic hospitals could deny visitation rights, and Catholic universities could deny family medical leave, to same sex partners.

Florida Atheist Sues Sheriff, Claiming Retaliation

Last year, Atheists of Florida made public records requests in a challenge to the decision by Polk County, Florida sheriff, Grady Judd, to remove basketball hoops, backboards and poles from the county jail and donate them to eight local churches. (See prior posting.) Now, according to Yahoo News, EllenBeth Wachs, legal coordinator for Florida Atheists, has filed a federal lawsuit against Judd charging that he unconstitutionally retaliated against her, arresting her on two trumped up charges, because of her objections to the pervasive Christian religiosity of Polk County.

The complaint (full text) in Wachs v. Judd, (MD FL, filed 6/24/2011), alleges that in March 20111, county law enforcement officials arrested Judd on unauthorized practice of law charges, and conducted a search of her home. In May, Wachs was arrested on charges of "simulation of a sexual act in the presence of a child."  The arrest was based on sounds a neighbor's son heard emanating from Wachs' window. The complaint alleges that these arrests were retaliatory and were designed to punish Wachs for her outspoken Atheist beliefs.  It contends that the sheriff's actions violated the free expression, equal protection, due process and Establishment clauses of the constitution. Wachs asks the court to enjoin Judd from instituting further investigations or arrests of her. [Thanks to Scott Mange for the lead.]

Issues Remain On Statute of Limitations In Priest Abuse Case

In Doe 76C v. Archdiocese of Minneapolis and St. Paul, (MN App., June 27, 2011), a Minnesota appellate court held that questions of fact remain on the issue of whether the statute of limitations had run on tort and fraud claims growing out of alleged childhood sexual abuse by a priest.  In reversing the trial court's grant of summary judgment to defendant, the court held that an expert's testimony on repressed memory should be admitted on the issue of when plaintiff had reason to believe he had been abused.  The court also held that plaintiff's becoming aware that the priest had been accused of abusing other children did not necessarily put him on notice that he had a cause of action for fraud.

Iran's Culture Minister Criticizes Upcoming BBC Series On Muhammad

The Guardian reported yesterday that Iran's ministor of culture and Islamic guidance, Mohammad Hosseini, is criticizing an upcoming BBC2 three-part series on The Life of Muhammad, even though no one in Iran has seen the shows.  Hosseini told the Iranian Fars news agency:

The BBC's decision to make a documentary on the life of [the] prophet Muhammad seems dubious and if our suspicions are proved to be correct, we will certainly take serious action. What the enemy is trying to do in ruining the Muslims' sanctity is definitely much more than causing us to react and unfortunately, some Islamic countries are not taking this issue seriously. One way to show objections is to express condemnation of the West over their despicable actions.

LDS Church Tells Full-Time Officers To Remain Politically Neutral

Provo, Utah's Daily Herald reports on a posting on the LDS Church's Newsroom indicating that a letter has been sent from the Church of Jesus Christ of Latter Day Saints' First Presidency to all full time officers of the church reminding them of the church's policy of neutrality in partisan politics.  The June 16 letter reads in part:

General Authorities and general officers of the Church and their spouses and other ecclesiastical leaders serving full-time should not personally participate in political campaigns, including promoting candidates, fundraising, speaking in behalf of or otherwise endorsing candidates, and making financial contributions.

Since they are not full-time officers of the Church, Area Seventies, stake presidents and bishops are free to contribute, serve on campaign committees and otherwise support candidates of their choice with the understanding they:

• Are acting solely as individual citizens in the democratic process and that they do not imply, or allow others to infer, that their actions or support in any way represent the church.

• Will not use Church stationery, Church-generated address lists or email systems or Church buildings for political promotional purposes.

• Will not engage in fundraising or other types of campaigning focused on fellow Church members under their ecclesiastical supervision.

Presumably the letter was prompted at least in part by the fact that two candidates for the Republican nomination for U.S. president-- Mitt Romney and Jon Huntsman-- are Mormons.

Lower House of Dutch Parliament Votes To Outlaw Kosher and Halal Slaughter

According to AP and Reuters, the House of Representatives of the Dutch Parliament yesterday passed, by a vote of 116-30, a bill that bans kosher and halal slaughter of animals.  The bill accomplishes this by eliminating a provision in current law that exempts ritual slaughter from the requirement that animals be stunned before they are killed. The bill still must be approved by the Dutch Senate, and this is unlikely before Parliament's summer recess.  Also enforcement of the law, if it finally passes, is complicated by an amendment added last week that allows religious groups to continue ritual slaughter if they can prove it is no more painful than stunning. No one seems to know how this would be shown. The bill was introduced by the small Animal Rights Party. Netherlands' Muslim and Jewish communities say the ban is an infringement of their religious freedom. According to AP: "Support for the ban came from the political left, which sees ritual slaughter as inhumane, and from the anti-immigration right, which sees it as foreign and barbaric. Only Christian parties were opposed, arguing the ban undermines the country's long tradition of religious tolerance." (See prior related posting.)

The European Jewish Congress-- the umbrella organization of Jews in Europe-- is considering taking legal action at the European Union level to challenge the bill before the Dutch Senate votes, according to Yeshiva World.

Vatican Launches New News Portal With Tweet From Pope

The Vatican yesterday launched a new website, www.news.va designed as a news portal to bring together news from the Vatican's various print, radio, television and online services. As reported by Time, the launch of the website was announced through Twitter in the first Tweet by the Pope himself.  The Tweet, also cross-posted on the Vatican's French Twitter feed, read: "Dear Friends, I just launched News.va Praised be our Lord Jesus Christ! With my prayers and blessings, Benedictus XVI." Actually, the Pope only pressed the "send" button on his iPad. He did not keystroke the entire Tweet.  A link to the Vatican news portal has been added to Religion Clause's sidebar.

Major Christian Groups Release Recommendations On Proselytizing In Multi-Religious World

The World Evangelical Alliance, World Council of Churches and the Vatican's Pontifical Council for Interreligious Dialogue yesterday released a 5-page document titled Christian Witness in a Multi-Religious World: Recommendations for Conduct.  The document is the result of consultations between the three groups extending over 5 years.  The groups say that together they represent 90% of the Christians in the world. Here are excerpts from the Principles set out in the document:

[P]roviding education, health care, relief services and acts of justice and advocacy are an integral part of witnessing to the gospel. The exploitation of situations of poverty and need has no place in Christian outreach. Christians should denounce and refrain from offering all forms of allurements, including financial incentives and rewards, in their acts of service....

As an integral part of their witness to the gospel, Christians exercise ministries of healing. They are called to exercise discernment ... ensuring that the vulnerability of people and their need for healing are not exploited.

... Christians are called to reject all forms of violence, even psychological or social, including the abuse of power in their witness. They also reject violence, unjust discrimination or repression by any religious or secular authority, including the violation or destruction of places of worship, sacred symbols or texts.

... Religious freedom including the right to publicly profess, practice, propagate and change one’s religion flows from the very dignity of the human person....  

... Christians are to speak sincerely and respectfully; they are to listen in order to learn about and understand others’ beliefs and practices, and are encouraged to acknowledge and appreciate what is true and good in them. Any comment or critical approach should be made in a spirit of mutual respect, making sure not to bear false witness concerning other religions.

... Christians are to acknowledge that changing one’s religion is a decisive step that must be accompanied by sufficient time for adequate reflection and preparation, through a process ensuring full personal freedom....

Religion News Service reports on the document.

Church-State Tensions In South Korea Explored

Reuters reports on the church-state tensions in South Korea ahead of next year's presidential elections.  President Lee Myung-Bak is a devout Protestant and an elder at  Seoul's Somang Church. However, many have been disturbed at his public display of religion, particularly a photo of him kneeling to pray at a national prayer breakfast last March. The main Buddhist Jogye Order called the President's action "unforgiveable."  Others are concerned with what is seen as undue Christian influence on government, reflected for example in the failure to pass legislation giving tax-neutral treatment to Sharia-compliant financial products (see prior posting) and reduction in funding for a program that hosts tourists at Buddhist temples.

Catholic, Orthodox Jewish Spokesmen React To New York's Marriage Equality Law

New York last week enacted legislation permitting same-sex marriage despite particularly strong opposition from some religious groups, including Catholic and Orthodox Jewish organizations.  (See prior posting).  Here are statements that those two groups have now issued in reaction to the new law:

Bishop Nicholas DiMarzio, Catholic Bishop of Brooklyn, said in a press release:

Today, Governor Andrew Cuomo and the state legislature have deconstructed the single most important institution in human history. Republicans and Democrats alike succumbed to powerful political elites and have passed legislation that will undermine our families and as a consequence, our society.....

In light of these disturbing developments and in protest for this decision, I have asked all Catholic schools to refuse any distinction or honors bestowed upon them this year by the governor or any member of the legislature who voted to support this legislation. Furthermore, I have asked all pastors and principals to not invite any state legislator to speak or be present at any parish or school celebration.

The above request is intended as a protest of the corrupt political process in New York State. More than half of all New Yorkers oppose this legislation. Yet, the governor and the state legislature have demonized people of faith, whether they be Muslims, Jews, or Christians, and identified them as bigots and prejudiced, and voted in favor of same-sex “marriage.” It is mystifying that this bill would be passed on the last day of an extended session under the cover of darkness.

However a statement signed by all the bishops of New York state was considerably milder in tone. It said in part:

The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled.

We strongly uphold the Catholic Church’s clear teaching that we always treat our homosexual brothers and sisters with respect, dignity and love. But we just as strongly affirm that marriage is the joining of one man and one woman in a lifelong, loving union that is open to children, ordered for the good of those children and the spouses themselves.

The Union of Orthodox Jewish Congregations of America issued a statement saying:

Consistent with our tradition and Jewish religious principles, we oppose the redefinition of marriage and the state sanction of same sex marriages. We opposed this legislation and believe it is a mistake to enact it in New York. We do note however that the legislation, as enacted, includes robust protections of religious liberties for organizations including synagogues, schools and social service agencies. For that at least, we are grateful. Just as we, in a democratic, pluralistic society do not seek to impose our religious beliefs on others, same sex marriage, now the law in New York, must not infringe on anyone's religious liberties.

Abercrombie Sued By Muslim Former Employee and EEOC Over Wearing Hijab

According to AP, a religious discrimination lawsuit was filed in federal district court in San Francisco yesterday by a 20-year old Muslim woman who says she was fired as a stockroom worker by Abercrombie and Fitch after she insisted on wearing her hijab (Muslim head scarf).  Hani Khan says that when when she was first hired at the company's San Mateo store, the manager said she could wear the hijab so long as it was in company colors. However, four months later a district manager and human resource manager asked her to remove it while working. When she refused, she was suspended and then fired.  This is the latest in a number of similar lawsuits that have challenged Abercrombie and Fitch's "look policy" which critics say favors young, white, athletic looking people. The EEOC also announced yesterday that it has filed suit over Khan's treatment.

Supreme Court Denies Review in RLUIPA Zoning Case

The Supreme Court today denied certiorari in Miles Christi Religious Order v. Northville, MI, (Docket No. 10-1317, cert. denied 6/27/2011). (Order List.) In the case, the 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges by a Catholic Religious Order to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. (See prior posting.)

New York's Electronic Sales Tax Filing Creates Problem For Amish

The Watertown (NY) Times reported yesterday on the problems encountered by the Swartzentruber Amish in New York state since the Department of Taxation and Finance has required that sales taxes be filed electronically rather than by mail.  These Amish furniture makers and shop keepers do not have computers.  They do not have social security cards or telephones either.  Some have received letters warning them of a $50 penalty for each return not filed electronically.  A spokesman for the tax department says that if someone calls them and tells them they do not have computer access, the department will allow the person to continue to file by mail.  However many of the Amish do not use phones. State Sen. Patricia Ritchie has intervened with the tax department on behalf of at least one member of the Amish community, and the department is allowing him to continue filing by mail. [Thanks to Steven H. Sholk for the lead.]

FBI Says Mennonites In Nicaragua Aiding Mother To Avoid Custody Change To Former Lesbian Partner

AP today reports on the international kidnapping investigation by the FBI that is looking for Lisa Miller and her daughter who fled the country after her former same-sex partner, Janet Jenkins, was awarded custody of of the girl.  In 2003, Miller broke up with Jenkins, renounced homosexuality and became a Baptist, and then a Mennonite.  Miller, the birth mother, was originally granted custody, but after she refused to comply with visitation schedules for Jenkins, courts in both Virginia and Vermont granted custody to Jenkins. But Miller had already fled to Central America.  In April, the FBI arrested a Nicaraguan missionary, Timo Miller, and charged him with abetting an international kidnapping by arranging a flight for Lisa Miller and her daughter from Canada to Nicaragua. More than $30,000 has been raised for a Timo Miller defense fund.  Apparently the Mennonite community in Nicaragua is helping hide Lisa Miller and her daughter.  At one point, it appears she stayed at a beach house in Nicaragua owned by the father of an administrative assistant at Jerry Falwell's Liberty University Law School. Liberty Counsel represented Miller in her Vermont court proceedings.  Pablo Yoder, a Mennonite pastor in Nicaragua, said:

[T]he Nicaraguan Brotherhood felt it right and good to help Lisa not only free herself from the so called civil marriage and lesbian lifestyle, but especially to protect her nine year old daughter from being abducted and handed over to an active lesbian and a whole-hearted activist.

Iraqi Kurdish Parliament Outlaws Female Genital Mutilation

Hudson New York reports that last week Iraqi Kurdistan's Parliament passed a law outlawing female genital mutilation. The move came after a survey by a German-Iraqi non-governmental organization, WADI, revealed that more than 60% of the women and girls in Iraqi Kurdistan have been subjected to genital mutilation. The practice is limited to Sunni Kurds, but appears to have little support in Islamic law.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation Equality in the Public Schools, (Faith, Politics and Sexual Diversity, D. Rayside, C. Wilcox, eds., UBC Press, 2011).
• Richard Moon, Accommodation Without Compromise Comment on Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review, Vol. 51, pp. 95-130, 2010).
• Menachen Mautner, Three Approaches to Law and Culture, (Cornell Law Review, Vol. 96, p. 839, 2011).
• Brett Freudenberg and Dr. Mahmood Nathie, The Constitution and Islam: Are Tax Reforms Possible to Facilitate Islamic Finance?, (Revenue Law Journal, Vol. 20, No. 1, pp. 1-36, 2011).
• James Cleith Phillips, 'All of the Blood and Treasure': The Founders on Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, (Mississippi College Law Review, Vol. 30, No. 1, 2011).
• Daniel McGirr, The Constitutionality and Policy Merits of Religiously Motivated Statutes, (April 19, 2011).
• Richard Moon, The Regulation of Hate Speech Under the Canadian Human Rights Act, (Canadian Diversity, Vol. 83, pp. 28-32, 2010).
• Bryan H. Wildenthal, A Personal Perspective on Marriage, Time, Space, Uncertainty, and the Law, (Michigan State Law Review, Vol. 2011).
• Rebecca Probert, 'From Fornicators to Family: Cohabitants and the Law, 1600-2010', (June 22, 2011).
• Aaron Schwabach, Of Charities and Clawbacks: The European Union Proposal on Successions and Wills as a Threat to Charitable Giving, (Columbia Journal of European Law, Vol. 17, 2011).

From SmartCILP:

• Jeroen Temperman, State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children's Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers, [Abstract], 32 Human Rights Quarterly 865-897 (2010).

Court Requires Organization That Claimed Religious Status To Comply With FTC Order

In United States v. Daniel Chapter One, (D DC, June 22, 2011), the federal district court for the District of Columbia granted a preliminary injunction enjoining an organization from continuing to market dietary supplements without complying with a cease and desist order issued by the Federal Trade Commission. The supplements were promoted as curing or preventing cancer and ameliorating the effects of radiation and chemotherapy.  Defendant had claimed that the FTC order violated its free exercise of religion because it is a religious corporation sole, and that the order violated the establishment clause because it was based on "scientism".  However the D.C. Circuit rejected that claim and the U.S. Supreme Court denied certiorari.

Recent Prisoner Free Exercise Cases

In Elfand v. Sonoma County Men's Adult Detention Facility, 2011 U.S. Dist. LEXIS 63787 (ND CA, June 13, 2011), a California federal district court dismissed, but granted a motion to file an amended complaint, in a suit in which a Jewish inmate claimed that he was required to wait for over a month before being placed on the prison's kosher meal plan.

In Jones v. Lorady, 2011 U.S. Dist. LEXIS 64672 (MD PA, June 17, 2011), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that he was transferred from a prison in Pennsylvania to one in Virginia which refused to honor his religious exemption that allowed him to wear a beard.

In Palmer v. Rustin, 2011 U.S. Dist. LEXIS 65678 (WD PA, June 21, 2011), a Pennsylvania federal district court dismissed with leave to amend a Muslim prisoners claim that his free exercise rights were violated when on two occasions he was denied the right to attend religious services, apparently because of identification issues.

In Dobbins v. Cummins, 2011 U.S. Dist. LEXIS 65425 (MD AL, June 20, 2011), an Alabma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 65724, May 23, 2011) and dismissed an inmate's complaint that his rights were violated by prison policy that bars inmates assigned to the prison health care unit from attending church services. Prison authorities said the purpose of the ban was to protect the health of all inmates.

In Kohn v. Coleman, 2011 U.S. Dist. LEXIS 63960 (D SC, June 6, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66009, May 4, 2011) and dismissed an inmate's complaint that while his dorm was on cell restriction for two days, he was not allowed to attend religious services. Plaintiff had asked for $30,000 in damages.

In Muhammad v. Sisto, 2011 U.S. Dist. LEXIS 66445 (ED CA, June 21, 2011), an inmate sued claiming that prison officials prevented him from fasting for Ramadan.  A California federal magistrate judge recommended that plaintiff's in form pauperis status be revoked because he had filed nearly a dozen previous actions that had been dismissed as frivolous or for failure to state a claim. Under the recommendation, unless plaintiff pays the filing fee, the complaint in the current case will be dismissed.

In Porter v. Beard, 2011 U.S. Dist. LEXIS 66371 (WD PA, June 22, 2011), a Pennsylvania federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66374, May 19, 2011) and permitted an inmate to move ahead with a claim that during a cell search a prison guard improperly handled his Native American Medicine Bag and threw its contents into a garbage bin.

In Frohwerk v. Armstrong, 2011 U.S. Dist. LEXIS 67504 (ND IN, June 20, 2011), an Indiana federal district court dismissed an inmate's complaint that on one occasion he was woken up by a correctional officer who told him: "Get up and go to church if you want to eat, because there ain't no lunch today! . . . Go get your cookies!" The court said that this type of isolated incident does not amount to a 1st Amendment violation.

Court Upholds Denial of Tax Exemption to Meditation Healing Center

In Self Realization Meditation Healing Centre v. Charter Township of Bath, (MI App., June 21, 2011), a Michigan appellate court agreed with the state's Tax Tribunal that a Self Realization Healing Centre is not entitled to either a charitable or a religious tax exemption. It concluded that the organization was not "organized chiefly for charity," finding that its organizational documents reflect "an all-encompassing purpose to help people with life in general."  It also concluded that the property failed to qualify for an exemption that was available for premises "used predominantly for religious services or for the teaching of religious truths and belief." The court said:

There are several purposes and statements in Self Realization’s documentation. These include meditation, stress relief, using energy in a beneficial way, enjoying quiet time, and walking through the woods. While Self Realization does engage in teaching of some beliefs, it is at least equally engaged in teaching practices (yoga and meditation).

Autopsy Without Consent Did Not Violate Free Exercise Protections

Thompson v. Robert Wood Johnson University Hospital, 2011 U.S. Dist. LEXIS 63980 (D NJ, June 15, 2011),  is a lawsuit against two doctors, a hospital, and state medical school (the doctors' employer) for their role that resulted in  an autopsy being performed on a 24-week severely deformed fetus without consent of the mother whose pregnancy was terminated, or her husband.  The parents were asked to participate in a research program on skeletal dysplasia, but agreed only to x-rays and not to the autopsy that was performed. Among the claims asserted, the mother contended that her free exercise rights were violated because the autopsy disrespected her Jewish religious beliefs and obstructed her ability to practice her religion.  A New Jersey federal district court held first that the doctors involved, though employed by a public entity, were not acting under color of state law. The court went on to say the even assuming the doctors were acting under color of law, there is no showing that their motivation was to infringe on plaintiff's religious sensibilities.  According to the court, the Supreme Court has made it clear that "the motivation behind a challenged government action is key to determining whether a constitutional violation has occurred."

Vatican-Montenegro Sign Agreement On Church-State Relations

AP reports that yesterday the Vatican and the nation of Montenegro signed an agreement guaranteeing the legal status in Montenegro of the Catholic Church and its institutions.  The agreement covers the operation of seminaries, and Catholic spiritual assistance in the armed forces, prisons and hospitals. This is the first agreement between the Vatican and a predominately Orthodox country that covers church-state relations.

New Blog Focuses on Abuse By Charity Regulators

A new blog, Charity Regulator Watch, has joined the blogosphere.  As reported by the Washington Examiner, the new blog's creator, Mark Fitzgibbons, comes at this new enterprise with a point of view.  He believes that state regulators charged with overseeing charities and non-profits often overreach and misuse their power. Explaining his mission, Fitzgibbons says: "charitable solicitation laws divert more than $500 million in donor money each year from its intended purposes." A link to Charity Regulator Watch has been added to the Religion Clause sidebar.

New York Legalizes Same-Sex Marriage With Lengthy Exemptions For Religious Organizations

Late last night, the New York state Senate voted 33-29 in favor of A8354, the bill passed earlier this month by the state Assembly legalizing same-sex marriage.  Then the Assembly and Senate both passed A8520 which expanded the protections for churches, religious organizations and clergy who object to same-sex marriage.   Gov. Cuomo immediately signed both bills into law. The New York Times has extensive coverage of the politics behind the governor's successful campaign to obtain passage of the legislation, reporting:

The story of how same-sex marriage became legal in New York is about shifting public sentiment and individual lawmakers moved by emotional appeals from gay couples who wish to be wed.

But, behind the scenes, it was really about a Republican Party reckoning with a profoundly changing power dynamic, where Wall Street donors and gay-rights advocates demonstrated more might and muscle than a Roman Catholic hierarchy and an ineffective opposition.

And it was about a Democratic governor, himself a Catholic, who used the force of his personality and relentlessly strategic mind to persuade conflicted lawmakers to take a historic leap.

The expanded religious protections were an important factor in obtaining final passage.  The protections apply to several categories of organizations and their employees: (1) religious entities, such as churches; (2) "benevolent orders", such as the Knights of Columbus; (3) any non-profit corporation operated, supervised or controlled by a religious corporation; (4) any employee of these organizations.

For these groups, notwithstanding any state or local law or regulation, they are not required to provide accommodations, facilities, goods or services for any marriage ceremony. Nor is any member of the clergy required to perform a same-sex marriage ceremony.  Refusal to provide facilities or perform a ceremony will not give rise to any civil claim or to any governmental action discriminating against the groups or clergy or imposing a penalty or withholding benefits.  The new law also assures religious organizations that provisions in New York's anti-discrimination law that allow them to favor members of their own religion in employment, sales, rental of housing, admission or other preferences and to take other action to promote their religious principles, are still in effect.

The new law does not create exemptions for individuals with religious objections who own private businesses that offer their facilities for weddings to refuse to make them available for same-sex ceremonies.

Amended Gay Marriage Bill With Expanded Religious Exemptions Introduced In New York

The Wall Street Journal reports that Gov. Andrew Cuomo and lawmakers introduced an amended version of the same-sex marriage bill (full text)  into the state legislature today. The new version expands protections for religious organizations and clergy that object to same-sex marriage. Backers hope this will be enough to convince at least one more member of the state Senate to vote in favor of the bill and thereby secure its passage.  The prior version of the bill, already passed by the state Assembly, had somewhat less comprehensive exemptions in it, and Senate Republicans had been seeking this expansion. (See prior posting.)

Israel's High Court Recognizes Civil Marriage By Proxy

Israel's High Court of Justice this week recognized a new route for Israeli's to enter a civil marriage.  Generally marriages in Israel must be performed by religious authorities, though individuals may travel abroad for a civil marriage which will then be recognized in Israel.  For Jewish Israelis, this has meant that the Orthodox rabbinate controls marriage in the country.  Haaretz reports that the High Court has now approved the marriages of 14 couples who were married by proxy in El Salvador without ever leaving Israel. Most of the marriages involved one partner who was a foreign worker or tourist who were concerned that they could not obtain re-entry if they left the country.  The Salvadoran procedure requires elaborate documentation and the hiring of two proxies to stand-in for the parties in El Salvador and two witnesses. Up to now, the only non-religious alternative available inside Israel has been civil union where both parties to the marriage have no religious affiliation. (See prior posting.)

Court Says Abused Plaintiffs Can Seek Punitive Damages Against Jesuit Order

In Doe v. Chicago Province of the Society of Jesus, (Cook Co. IL Cir. Ct., June 22, 2011), an Illinois state trial court judge has allowed three plaintiffs who claim they were sexually abused by now-defrocked Jesuit priest Donald McGuire to file an amended complaint seeking punitive damages against the priest's Jesuit order.  The court reviewed The court wrote:

There can be no question that a religious organization can be found liable for punitive damages, if it has recklessly permitted an unfit employee or agent to sexually abuse minors with knowledge of his propensity to do so....

The court accepts that the Jesuits are a religious order with a rich history of service to the faithful.... However, the leaders of the Chicago Province fell far short of this ideal.  Plaintiffs have amply demonstrated a reasonable likelihood of proving facts at trial which would support an award of punitive damages.

SF Weekly reports on the decision.

Minister of Cannabis Church Sentenced To Prison On Drug Charges

In Franklin County, Pennsylvania on Wednesday, Robert Henry, a member of of the Hawaii Cannabis Ministry, was sentenced from 6 1/2 to 13 years in prison for directing marijuana growing from jail in 2010 when he was serving another sentence for drug violations. This time Henry was also fined $50,500 and ordered to go through a drug treatment program. Chambersburg (PA) Public Opinion reports that Henry claims he is being persecuted because of his religious beliefs.

Oregon Federal Judge Confirmed Over Objections To His Church-State Views

On Tuesday, the U.S. Senate, by a vote of 64-35, confirmed the nomination of Michael Simon as federal district judge for the district of Oregon. As reported by the Oregonian, Simon was originally nominated in 2010 and was approved by the Senate Judiciary Committee. However the full Senate never voted on the nomination. President Obama renominated Simon this year and he was again approved by the Judiciary Committee by a vote of 14-4. The opposing votes were all from Republicans.  Simon is a cum laude graduate of the Harvard Law School, worked for the Justice Department and then joined a Portland law firm. However Republican opposition to his nomination stemmed from Simon's long association with the ACLU.  Here, from the debate in the Congressional Record, are excerpts from Senator Charles Grassley's speech on the Senate floor that focused in large part on Simon's church-state views:

Throughout his career, Mr. Simon has advocated on behalf of the American Civil Liberties Union of Oregon as a pro bono attorney. But his involvement in the ACLU goes beyond mere representation of a client. Mr. Simon has been a member of the ACLU of Oregon since 1986. He is an active member of their Lawyers’ Committee and served as a board member from 1997 to the year 2004, the vice president for legislation 1997 to 1998, and vice president for litigation from 2000 to 2004....

The ACLU does hold very liberal views, and Mr. Simon has been the voice for those views. For example, Mr. Simon wrote a letter to the Tillamook County Courthouse in Oregon expressing the ACLU’s concern with religious Christmas signs and decorations. The letter encouraged the county to repeal its resolution that deemed the county a ‘‘Merry Christmas County.’’

On issue after issue, Mr. Simon refused to disassociate himself from legal and policy positions held by the ACLU,that are far outside the mainstream. This includes the legalization of drugs, the unconstitutionality of the death penalty, the unconstitutionality of the Pledge of Allegiance, the ACLU’s opposition to tax exemptions for churches and extreme views regarding separation of church and state.....

Mr. Simon appears to demand an absolute wall of separation between church and state, as opposed to the U.S. Government promoting a specific religion. He has argued against religious displays on public land, against religious visitors to schools, against a coach praying with his football players. I assume that means even if you’re praying that they don’t get injured. Mr. Simon has argued that it is unconstitutional under the establishment clause to teach intelligent design in public school science classes.

British Schools Stop Teaching Religious Education As They Emphasize Ebacc Subjects

The Guardian reports today that a poll by the National Association of Religious Education Teachers shows that 25% of state secondary schools and 31% of state elementary schools in Britain are no longer teaching religious education, even though the law requires them to do so.  Offerings religious education have dropped off since schools have begun to be graded on student achievement in five English Baccalaureate (Ebacc) subjects: English; math; science; history or geography; and foreign language. (See prior related posting.)

Geert Wilders Acquitted of Defaming and Inciting Hatred Against Muslims

Dutch right-wing politician Geert Wilders was acquitted by an Amsterdam court yesterday of charges of group defamation against Muslims, and incitement to hatred and discrimination against Muslims based on their religion and race. Radio Netherlands reports on the verdict. At issue were statements made by Wilders on websites, Internet forums, Dutch newspapers and his film Fitna. (See prior posting.) An English translation of the court's press release on the case presents more details on the verdict.  The court held that criticism of a religion is permissible.  It went on to conclude that certain statements that might be seen as incitement to discrimination nevertheless are allowed "because of the context of the public debate" in which Wilders spoke "as a politician."  At the time the statements were made, problems of a multicultural society and immigration were being discussed.  Wilders statements "raised public problems" and "do not cross criminal legal boundaries."  Prosecutors had previously attempted to dismiss the charges on free speech grounds, but an appeals court ordered the prosecution to move ahead. (See prior posting.)  Now lawyers for those who filed complaints against Wilders are considering taking the case to the United Nations Human Rights Council or to the European Court.

In an op-ed in today's Wall Street Journal, Wilders reacts to his acquittal, saying in part:

Yesterday was a beautiful day for freedom of speech in the Netherlands. An Amsterdam court acquitted me of all charges of hate speech after a legal ordeal that lasted almost two years. The Dutch people learned that political debate has not been stifled in their country. They learned they are still allowed to speak critically about Islam, and that resistance against Islamization is not a crime.

DC Circuit Upholds Ban On Anti-Abortion Chalking Protest In Front of White House

In Mahoney v. Doe, (DC Cir., June 21, 2011), a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of D.C.'s Defacement Statute that, among other things, prohibits writing or drawing on public property without the consent of the person in charge of the property.  Plaintiffs were denied permission to carry out an anti-abortion sidewalk chalk demonstration in front of the White House.  The court rejected both overbreadth and "as applied" free expression challenges.  Focusing on the "as applied" challenge, the court said :

[T]he Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating ...the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

The court also rejected plaintiffs' claim that enforcing the statute against them violates the Religious Freedom Restoration Act because their protest was religiously motivated.  The court quoted prior precednt that held:

to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on theexercise of religion trigger the compelling interest requirement.

Judge Kavanaugh also wrote a concurring opinion, declaring: "No one has a First Amendment right to
deface government property." (See prior related posting.)

French Fashion Designer On Trial For Anti-Semitic Tirade

AP reported yesterday that the trial of former Dior fashion designer John Galliano began yesterday. Galliano is charged with hurling anti-Semitic and racist remarks at strangers on two different occasions in a Paris cafe. French prosecutors are asking that Galliano be fined the equivalent of $14,400(US). Galliano says he remembers nothing of what he allegedly said. He was in the throes of serious alcohol and drug addiction at the time. (See prior related posting.)

Canadian Soccer Organization Says 15-Year Old Referee Cannot Wear Hijab

In Canada, Quebec's Soccer Federation has told a 15-year old Muslim girl that she cannot continue her summer job as a soccer game referee wearing her hijab (head scarf). Canadian Press reported yesterday that teenager Sarah Benkirane hopes to convince the Canadian Soccer Federation to put pressure on its  Quebec affiliate. The Quebec Federation says it is merely applying FIFA rules that bar officials from displaying personal, religious or commercial messages.

Lawsuit Challenges San Francisco Circumcision Ballot Measure

A lawsuit was filed in state court in California yesterday challenging the San Francisco ballot measure that seeks to ban circumcision.  The Los Angeles Jewish Journal reports that, while much attention has been directed to religious freedom concerns, this suit is based on a California Business and Professions Code, Sec. 460 which provides:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

Plaintiffs in the lawsuit include two Jewish community organizations, three Jewish families, one Muslim family and two doctors.  They allege that it would be misleading to include the proposal on the ballot if the city lacks the power to enact it.

UPDATE: Here is the full text of the complaint in Jewish Community Relations Council of San Francisco v. Arntz, (CA Super. Ct., filed 6/22/2011).

Atheists Complain Over Renaming of Brooklyn Street As "Seven In Heaven"

Monday's Brooklyn Paper reports that American Atheists has complained over the renaming of a portion of a Brooklyn, New York street to honor seven firefighters who were among those killed at the Twin Towers on 9-11.  The new street sign in honor of the men reads "Seven In Heaven Way." American Atheist spokesman David Silverman said: "It’s improper for the city to endorse the view that heaven exists. It links Christianity and heroism." Community Board 6 member Tom Miskel responded: "Almost every religion has some form of heaven. It’s not just specific to Christianity."

Australian Judge Acquits Woman Who Could Not Be Identified Because She Wore Burqa

A new debate over women wearing the burqa has broken out in Australia after a district court judge on Monday reversed a magistrate's conviction of a woman for filing a false police report.  Carnita Matthew was charged after a police video proved false a claim that police tried to tear her burqa off her face when she was stopped for  a random traffic breath test and then cited for improper display of her license plates. The judge reversed the conviction because the woman who filed the police report was wearing a burqa at the time and the court concluded that it could not be proved beyond a reasonable doubt that the woman was Ms. Matthew. He was also unconvinced that the woman filing the report knew it was false.  Australia's Telegraph, reporting on the case, says that Matthew has a long history of traffic tickets and non-payment of traffic fines. The government is considering a new requirement that anyone giving a report to police furnish a fingerprint along with their signature.  The government is waiting for the judge's full written opinion before deciding whether to appeal.

Groups Urge Obama To End Religious Hiring By Faith-Based Government Contractors

A group of 52 national organizations yesterday sent a letter (full text) to President Obama urging him to rescind an executive order issued in 2002 by President George W. Bush that allows religious organizations which contract with the government to nevertheless use religious criteria in their hiring. According to a press release from Americans United, yesterday was chosen as the day to send the letter because it was the 70th anniversary of the country's first executive order barring discrimination by federal government contractors.  That order, issued by Franklin Roosevelt, prohibited employment discrimination by defense contractors on the basis of race, creed, color, or national origin. (See prior related posting.)  [Thanks to Michael Lieberman for the lead.]

Argentina Court Says Title "Rabbi" Cannot Appear Next To Candidate's Name On Ballot

In Buenos Aires, Argentina, a court has ruled that a rabbi who is heading the PRO party's list of candidates for city legislature may not use the title "Rabbi" next to his name on the ballot. Bergman was picked by Mayor Mauricio Macri to head the party list.  Haaraetz reported Monday that even though Rabbi Sergio Bergman, a prominent leader of Argentina's Jewish community, is best known to the public as Rabbi Bergman, the court held that the title "rabbi" has a positive connotation and thus cannot appear next to Bergman's name as it is presented to voters.

Lawsuits Challenge County School Voucher Program

Two lawsuits were filed yesterday challenging on state constitutional and statutory grounds a pilot school voucher program enacted by the Douglas County, Colorado, Board of Education.  At issue is a program that will provide up to 500 students now enrolled in the county's public schools scholarships to attend approved Private School Partners. Of the schools approved for the program so far, 14 of 19 are sectarian religious schools. The first of the two lawsuits (press release) was filed by the ACLU and Americans United. The complaint (full text) in LaRue v. Colorado Board of Education, (CO Dist. Ct., filed 6/21/11), alleges that the Choice Scholarship Plan violates numerous provisions of the Colorado constitution dealing with education and religious neutrality, as well as the state's Public School Finance Act. A second similar lawsuit was filed by Taxpayers for Public Education, an organization of Colorado parents and taxpayers. (Press release). Education News Colorado reports on the lawsuits.

Court Upholds Constitutionality of RLUIPA Land Use Provisions

In Chabad Lubavitch of Lichtfield County, Inc. v. Borough of Lichtfield, Connecticut, (D CT, June 20, 2011), a Connecticut federal district court upheld the constitutionality of several of the land use provisions of RLUIPA.  This holding allowed Chabad to move ahead with its RLUIPA challenge to Lichtfield's denial of its application to restore and add onto a Victorian building located in an historic district. (See prior posting.) However the court held that Chabad's rabbi (as opposed to the organization) lacked standing to pursue a RLUIPA claim because he had no property interest in the building separate from Chabad's.

In discussing the constitutionality of RLUIPA, the court held that any substantial burden on Chabad's free exercise here would necessarily burden interstate commerce because of the building construction involved.  It also concluded that RLUIPA does not violate the Establishment Clause merely because it singles out religion for protection against unequal treatment. [Thanks to Eric Treene for the lead.]

Court Says First Amendment Precludes Jurisdiction Over Suit For Injuries During Healing Service

In Kubala v. Hartford Roman Catholic Diocesan, 2011 Conn. Super. LEXIS 1260 (CT Super. Ct., May 20, 2011), a Connecticut state trial court dismissed a lawsuit brought against a Catholic priest, his church and the Hartford Diocese seeking damages for injuries plaintiff received when, during a Catholic Charismatic Renewal healing service, she was physically injured.  When plaintiff was "prayed over" during the service, she fell backward, hitting her head and sustaining painful injuries. She claimed the injuries were the result of defendants failing to exercise the degree of care usual for such services. The court concluded that the  federal and state constitutions' free exercise and establishment clauses preclude it from deciding the case.  The claim is essentially one of clergy malpractice. "[S]ince the plaintiff's claims are inextricably intertwined with the religious context in which the incident occurred, the court cannot apply neutral principles of secular law to this case."

Free Exercise Challenge To Health Care Reform Law Dismissed In April Decision

Calvey v. Obama, (WD OK, April 26, 2011), while decided two months ago, has just now appeared on LEXIS and has received little general attention.  It is a decision on standing and ripeness of challenges by numerous plaintiffs in an Oklahoma federal district court to the constitutionality of last year's federal health care reform act. In dismissing some, but not all, of the claims, the court rejected a free exercise claim by plaintiffs who argued that the Affordable Care Act forces them to contribute to the funding of abortion in violation of their rights of conscience and free exercise of religion. The court wrote:

Plaintiffs have failed to identify a provision of the ACA that requires them to contribute to the funding of abortion, much less identified a provision of the ACA that requires them to purchase health insurance from an insurer that provides insurance coverage for abortions and/or that any part of the premiums the Plaintiffs will pay for health care insurance will necessarily be used, at least in part, to pay for abortions. Absent such allegations, Plaintiffs have failed to allege a future or threatened injury that is concrete and not conjectural or hypothetical or one which is fairly traceable to the ACA or the actions of the Defendants.

Egypt's Al-Azhar Calls For Modern Democratic Nation

In Egypt, Al-Azhar, the country's pre-eminent center of Sunni learning, issued a document calling for the country to be a modern democratic state.  According to reports from AlMasryAlYoum and Daily News Egypt, the document that was drafted by Al-Azhar and a number of Egyptian intellectuals defines the relationship between Islam and the state, and is considered to be a draft constitution. It provides that sharia law should remain "the essential source of legislation," but calls for Christians and Jews to have their own judicial tribunals. It calls for "the protection of places of worship for the followers of the three monotheistic religions" and considers "incitement of confessional discord and racist speech as crimes against the nation." It provides for care for all Egyptians without discrimination on the basis of gender or religion, and lists health, education and scientific research as priorities. In a news conference announcing the document, Al-Azhar's Grand Imam Sheikh Al-Tayeb also called for the independence of Al-Azhar, with its imam being elected by Muslim Senior Scholars Authority instead of being appointed by the government.

Break-Away Presbyterian Church In Missouri Can Keep Its Property

According to The Layman Online, a Missouri state trial court has ruled in favor of the break-away Colonial Presbyterian Church, one of Kansas City's largest Presbyterian congregations, in its land ownership dispute with the Presbyterian Church USA. The congregation is one of many Presbyterian congregations that have moved their affiliation to the more conservative New Wineskins Association of Churches.  In Colonial Presbyterian Church v. Heartland Presbytery, (MO Cir. Ct., June 9, 2011), the court, applying the "neutral principles of law" approach, held that the provision in the PCUSA Book of Order that all property of a particular church is held "is held in trust ... for the use and benefit of the Presbyterian Church (USA)" is insufficient under Missouri law to create a trust over the church's property. [Thanks to Anglican Curmudgeon for the lead.]

Plaintiffs Voluntarily Dismiss Challenge To Parsonage Allowance.

A press release yesterday from the Pacific Justice Institute reports that the Freedom from Religion Foundation and 21 of its members, represented by Michael Newdow, have filed a voluntary dismissal of their federal court lawsuit challenging the constitutionality of the parsonage allowance given to clergy in the federal and California tax codes.  Apparently the dismissal was impelled by the fact that plaintiffs had not asked federal and state tax officials for relief before filing suit.

Britain's Equality Commission Releases Study on Religious Discrimination

Britain's Equality and Human Rights Commission yesterday released a report titled Religious Discrimination in Britain: A Review of Research Evidence, 2000-10.  The report says that its aims were:

to identify and review:
• quantitative and qualitative evidence of religious discrimination;
• any evidence about whether religious discrimination is increasing or decreasing;
• any differences in evidence between England, Wales and Scotland;
• ‘Islamophobia’ as a frame of reference for discrimination against Muslims; and
• gaps in the existing research and statistical evidence.

The Commission has also made available a related statistical briefing paper on Religion of Belief.

In a somewhat provocative interview with the Sunday Telegraph ahead of the release of the report, Commission Chairman Trevor Phillips said:

I understand why a lot of people in faith groups feel a bit under siege. They're in a world where there are a lot of very clever people who have a lot of access to the airwaves and write endlessly in the newspapers knocking religion and mocking God. The people who want to drive religion underground are much more active, much more vocal....

Our business is defending the believer. The law we're here to implement recognises that religious identity is an essential part of this society. It's an essential element of being a fulfilled human being.....

I think the most likely victim of actual religious discrimination in British society is a Muslim but the person who is most likely to feel slighted because of their religion is an evangelical Christian.

There are a lot of Christian activist voices who appear bent on stressing the kind of persecution that I don't think really exists in this country. There are some Christian organisations who basically want to have a fight and therefore they're constantly defining the ground in such a way that anyone who doesn't agree wholly agree with them about everything is essentially a messenger from Satan.

I think for a lot of Christian activists, they want to have a fight and they choose sexual orientation as the ground to fight it on. I think that whole argument isn't about the rights of Christians. It's about politics. It's about a group of people who really want to have weight and influence and they've chosen that particular ground.

Texas Governor Signs Mezuzah Bill

Last week Texas Gov. Rick Perry signed HB 1278 (full text).  The new law bars condominium property owners' associations from adopting restrictive covenants that would prevent Jewish property owners or residents from placing a mezuzah on the door of their home. When the bill was passed earlier this month, it was unclear whether or not the governor would sign it. (See prior posting.) Kate Shellnutt's blog at the Houston Chronicle reports on the bill's signing.

Priest Challenges Constitutionality of Law Barring Sex With Woman Seeking Spiritual Comfort

The St. Paul Tribune reports that in state court arguments today a Minnesota priest is challenging the constitutionality of a state statute, MN Stat 609.344,  that prohibits clergy from having sex with a person "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private." The challenge comes as a defense in the prosecution of Catholic priest Christopher Wenthe for third-degree criminal sexual conduct for a year-long sexual relationship with a woman in her early 20's.  The woman had met Wenthe while attending a Catholic initiation class and later sought him out as a confessor. Wenthe's attorney says the statute is an overly broad attempt to regulate sexual behavior. He says the case raises the question of whether the woman could have a friendship with the priest that was not counseling under the statute. The Minnesota Supreme Court in the 2007 case of State v. Bussman rejected a vagueness challenge to the law, but divided equally on whether it violated the Establishment Clause. Ultimately it reversed defendant's conviction because the trial court had allowed church doctrine to become entangled with the meaning of the statute.

Pakistan TV Hosts First Religious Quiz Show

A leading Pakistani television channel, GEO TV, is broadcasting what it says is the first-ever large-scale religious quiz show.  According to Pakistan's The News, the game show Alif, Laam, Meem, which begins tonight, will be an entertaining attempt "to impart knowledge of religion in it’s entirety, be it Quran, Sunnah, religious history, literature, architecture or jurisprudence."

Charter School That Is Target of Establishment Clause Challenge Files Its Own Suit To Stay Alive

As previously reported, the ACLU of Minnesota is moving ahead with its Establishment Clause challenge claiming that a Minneapolis area charter school, the Tarek ibn Ziyad Academy, is promoting Islam. As reported earlier this month by the St. Paul Pioneer Press, new state legislation that takes effect June 30 bans out-of-state authorizers for charter schools, and in a settlement of the ACLU's litigation with it, Islamic Relief USA, the school's current authorizer, has agreed not to reincorporate in Minnesota. (See prior posting.) A trial on the merits of the ACLU's claim is set for November.  Facing imminent closure, TiZA's attempt to line up a new in-state authorizer that is acceptable to the state has been unsuccessful. An authorizing organization, Novation, has resubmitted an application after its first proposal was rejected by the state.

In an attempt to remain open, TiZA has gone to court. Last month a state court dismissed the school's lawsuit against Islamic Relief USA. The suit charged that IRUSA was obstructing TiZA's efforts to get a new sponsor.  Now, according to Minn Post last week, TiZA has filed suit in federal district court against IRUSA and the state Commissioner of Education. The complaint (full text) in Tarek Ibn Ziyad Academy v. Islamic Relief USA, (D MN, filed 6/15/2011) seeks a declaratory judgment that the Minnesota law limiting charter school sponsors to in-state organizations is unconstitutional as a violation of the due process and equal protection clauses, an impairment of the obligation of contracts and as a violation of the commerce clause. The suit also claims that IRUSA is improperly impeding TiZA's attempts to find a new sponsor.

Recent Articles of Interest

From SSRN:

• Pamela Edwards, Non-Mainstream Religions and the Law, (June 13, 2011).
• John Witte, Jr., Calvin the Lawyer, (Tributes to John Calvin on His 500th Birthday, David Hall and Martin Padgett, eds., pp. 1-23, 2010).
• Radwa S. Elsaman, Factors to Consider Before Arbitrating in the Arab Middle East: Religious and Legislative Constraints, (Journal of International Commercial Law, Vol. 3, p. 1, 2011).
• Patrick Nelson Leduc, Christianity and the Framers: The True Intent of the Establishment Clause, (Liberty University Law Review, Vol. 5, p. 201, 2011).
• Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate, (Michigan Law Review, Vol. 109, No. 8, 2011).

From SmartCILP:

• Sylvie Langlaude, The Rights of Religious Associations to External Relations: A Comparative Study of the OSCE and the Council of Europe, [Abstract], 32 Human Rights Quarterly 502-529 (2010).
• Guobin Zhu, Prosecuting "Evil Cults:" A Critical Examination of Law Regarding Freedom of Religious Belief in Mainland China, 32 Human Rights Quarterly 471-501 (2010).

Recent Prisoner Free Exercise Cases

In Ford v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 61978 (D CO, June 10, 2011), a Colorado federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 62014, May 24, 2011), and dismissed a complaint by a Nation of Islam inmate that he was not receiving a nutritionally adequate diet consistent with his religious beliefs. The court concluded that plaintiff had failed to show that his beliefs were sincerely held since he purchased food from the commissary that was inconsistent with his claimed dietary requirements.

In Marzuq v. Loury, 2011 U.S. Dist. LEXIS 62495 (D NJ, June 6, 2011), a Muslim inmate brought a free exercise claim contending that participation in the prison's Therapeutic Community was inconsistent with his religious beliefs. The court held that since the remedy plaintiff sought was restoration of good time credits that he lost when he was expelled from the TC program, he should have brought the suit as a habeas corpus action after exhausting state remedies.

In two opinions in Mahone v. Pierce County, 2011 U.S. Dist LEXIS 62619  and 2011 U.S. Dist. LEXIS 62588 (WD WA, June 10, 2011), a Washington federal district court adopted magistrate's recommendations  (2011 U.S. Dist. LEXIS 62617, May 23, 2011 and 2011 U.S. Dist. LEXIS 62589, May 24, 2011) and dismissed various claims from an inmate who claimed to be an African American Hebrew adherent of Judaism that he was being denied a kosher diet. Prison officials concluded that plaintiff's claims were not based on sincerely held religious beliefs.

In Gordon v. Lee, 2011 U.S. Dist. LEXIS 63433 (WD LA, June 16, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 63618, May 17, 2011) and dismissed a complaint by an inmate that he was not able to practice his Rastafarian religion. He was the only Rastafarian at the two facilities in which he had been incarcerated. Plaintiff sought a transfer to a different prison facility where he could practice his religion.

Purported Synagogue Sues Over Zoning Exemption For Hostels

The Forward this week reported on attempts by New York City's Department of Buildings to close down a network of hostels that offer low-priced rooms along with a "tolerance program" for guests. The hostels claim to be operated by the MacDougal Street Synagogue, and therefore to be exempt from various zoning laws under a provision in the New York City administrative code permitting charitable and religious institutions to convert homes into rooming houses "for working girls or women, or for working boys or men, or… for students attending a school or college." The city says that claim is a sham. It argues that the MacDougal Street Synagogue does not appear to exist at any location, and that the hostel rooms are being rented to tourists through the Internet.  The synagogue has filed a lawsuit challenging citations by city inspectors who closed down the hostels that they say are illegal transient hotels.  Inspectors found overcrowding and fire safety violations.

Louisiana Baptist Church Factions Battle In Court

Alexandria, Louisiana's Mount Zion Missionary Baptist Church is at the center of four lawsuits, with another set to be filed.  Alexandria Town Talk reports today on the battle between two factions in the church-- primarily older long-time members versus newcomers. The church, which was founded in 1902, serves primarily black congregants.  The church's pastor, Ameal Jones, who was hired in 2007 after the death of longtime pastor Donny  Granville is the focus of the congregational split. Opponents say Jones has built a power base of new members to the detriment of families that have been at the church for generations and who rely on church-financed services such as handicap-accessible vans and meals. The church's Board of Trustees fired Jones last year, but he refused to leave. They sued and the court ruled in the board's favor and nullified the election of a new Board that had taken place. But then Jones' supporters sued complaining that the church had not held an annual meeting or an election for 5 years. In a court supervised election, a new board of Jones supporters was elected. The new board tried to expel some of their opponents who they say engaged in disruptive conduct during church services, such as grabbing a microphone and yelling at Rev. Jones. The board has obtained a temporary restraining order barring 6 individuals from entering church grounds.

Paper Profiles Christian Religious Liberty Lawyer

The Tennessean today profiles Brentwood (TN) lawyer Larry Crain, who often represents clients for the conservative Christian advocacy group American Center for Law and Justice. The article describes Crain as "one of the leading religious liberty lawyers in the United States." Crain's law firm operates as an independent contractor for ACLJ, receiving over $387,000 in fees from it during the past three years.ACLJ has an annual budget of nearly $60 million. According to the article:

Crain’s legal resume reads like a history of the culture wars. Over the past 30 years, he’s represented abortion protesters from Operation Rescue, home-schooling parents, churches in zoning disputes and students who want to pray at graduation.

Israeli Rabbinic Court Sees Stray Dog As Spirit of Cursed Lawyer

Israel's YNet News last Thursday carried the rather strange story of a rabbinical court in Jerusalem, near the ultra-Orthodox Mea Shearim neighborhood, whose judges enlisted neighborhood children to throw stones at a dog. The incident took place several weeks ago in the rabbinic Monetary Affairs Court when a large dog wandered into the courtroom and refused to leave.  One of the judges then recalled that 20 years ago a panel of judges of the court cursed a famous secular lawyer who had insulted the court-- condemning his spirit to move into the body of a dog.  The judge was convinced that this was the dog  carrying that lawyer's spirit, and the court saw stoning as a way of retaliating. The dog managed to escape.  A member of Jerusalem's city council has complained to the Attorney General about the incident and an animal welfare organization has filed a complaint with the police.

UPDATE: According to a June 20 BBC report: "The head of the court, Yehoshua Levin, was quoted by Maariv as saying: 'There is no basis for abuse of animals from the side of Jewish Halacha [law].' In a statement, the court denied that a dog had been condemned. A dog had entered the court and been removed, it said."

UPDATE2: The London Telegraph yesterday reported the full statement by a Jerusalem rabbinical court denying original accounts of the incident:

There is no basis for stoning dogs or any other animal in the Jewish religion, not since the days of the Temple or Abraham.

The female dog found a seat in the corner of the court. And the children were delighted by it; there were hundreds outside the court. They are used to seeing stray cats but most have never seen a dog before. The only action we took was to dial the number of the Jerusalem Municipality to get the people in charge to take it away.

There was no talk of reincarnation, a lawyer has never been mentioned, either now or 20 years ago, and there was no stoning. Such inventions are a kind of blood libel, and we wonder why the inventor of the story did not continue to describe how we collected the blood of the dog to make our matzah.

US Catholic Bishops Revise Child Protection Policies To Comply With Latest Vatican Standards

The U.S. Conference of Catholic Bishops announced yesterday that at its Spring General Assembly, by a vote of 187-5, with 4 abstentions, the bishops approved revisions to its Charter for the Protection of Children and Young People.  According to the press release:

The revisions bring the Charter into line with the most recent Vatican instructions in this area, including specifically mentioning child pornography as a crime against church law and holding that abuse of someone who habitually lacks reason, for example, someone with mental retardation, is equivalent to child abuse.

According to CNN, critics say the changes do not go far enough.

Al-Qaida Announces New Leader In Statement Filled With Religious Affirmations

Al-Quaida announced yesterday on an Islamic website that Ayman al-Zawahri has assumed leadership of the organization now that Osama bin-Laden has been killed. The San Francisco Chronicle reports that al-Zawahari, an Egyptian doctor, is believed to be hiding in Pakistan. McClatchy Newspapers has published a full translation of the group's statement, which is filled with Islamic religious references. The statement reads in part:

Jihad will continue until Judgment Day, and ... has become an obligation in this era against the invading infidels, the occupiers of Muslim homes, and against the backsliding leaders who've changed Islamic law agreed upon by Muslim scholars....

... Al-Qaeda Jihad Organization seeks the implementation of Allah’s book and the Sunna and calls for all Muslims to follow the ways of the Prophet Mohammad and those of his noble companions and his successors, may Allah accept them all. We call for the pursuit of the ways agreed to by the followers of the prophet and their followers ... such as the four Imams and the Imams of Jurisprudence and Hadith.... We abide by what they set out and we do not disobey their commandments. We seek, with Allah's help, to be followers, not fabricators, learners and never creators.