ACLU Seeks Disclosure of Funding For Texas Governor's Prayer Event

The ACLU of Texas announced yesterday that it has filed open records requests with state,county and city offices seeking information on the amount of government support that is being devoted to Texas Gov. Rick Perry's controversial prayer service scheduled for August 6 in Houston's Reliant Stadium. The ACLU says it is not trying to stop the event, but wants to create transparency as to funding. The event, called "The Response: A Call To Prayer for a Nation In Crisis" is billed as a non-denominational, apolitical Christian prayer meeting. (See prior posting.) According to yesterday's San Antonio Express-News, a spokesperson for Gov. Perry says that the American Family Association is paying all the costs of the event, and no public funds are being used.

Government Responds To Lawsuit Charging Censorship of Religion In Veterans' Funerals

The U.S. Department of Veterans Affairs has now filed its answer (full text) to the complaint in a widely publicized case that charged the Houston (TX) National Cemetery with censoring veterans' committal service rites to eliminate the mention of God. (See prior posting.)  In responding for the first time to charges made by plaintiffs in Rainey v. U.S. Department of Veterans Affairs, (SD TX, answer filed 7/15/2011), the VA contended:

Houston National Cemetery employees have attempted to honor the particular religious preferences and requests by deceased Veterans’ families by offering them the option of reciting at the committal services any religious or non-religious text or recitation specifically requested by the families, and by not providing them with any religious or non-religious text or recitation when it is not desired and requested by the families.

The VA denied that the cemetery's director ever required that prayers the family wished to use in a private committal service be submitted to her in advance. However the VA did require that any request for a recitation in the cemetery service be initiated by the family. "Recitations are not to be presented to families by VA employees or registered VA honor guards to avoid imposing on them religious preferences that may not be desired."

Responding to claims regarding closure of the cemetery chapel, the VA said that it was closed for 10 months because of noise and fumes from a construction project.. A Bible, a cross and a star of David previously on display in the chapel were, after a complaint by attendees at a service, placed in storage to be used when requested by a family. The VA denied that the cemetery director stopped private funeral homes from informing families of the availability of a VFW chaplain. However, the VA claims that it moved to stop unauthorized solicitation by the VFW honor guard leader of payment from families for rendition of funeral honors. Monday's Houston Chronicle had additional coverage. [Thanks to Don Byrd for the lead.]

New Lawsuit Challenges County's Continued Denial of Water and Sewer Lines For Church

In March 2010, the U.S. 4th Circuit Court of Appeals held that a Seventh Day Adventist Congregation's rights under the Equal Protection Clause and RLUIPA were infringed when Prince George's County, Maryland refused to grant a change in sewer and water classifications for a portion of property on which the congregation planned to build a church. The court affirmed a $3.7 million jury award to the church. (See prior posting.) Nevertheless, the county has continued to deny the church a water and sewer category change so it could extend water and sewer lines to its property.  County Commissioner Mary Lehman says that the proposed change could affect the capacity of a nearby reservoir.  So now, according to AP, the church has filed another lawsuit in federal district court again asserting that the county's conduct violates RLUIPA. The complaint (full text) in Reaching Hearts International, Inc. v. Prince George's County Maryland, (D MD, filed 7/18, 2011), claims that the denials stem from a "personal, discriminatory vendetta" against the church by former city councilman Thomas Dernoga, which he continued even after his council term ended in 2011. AP reports on the filing of the lawsuit.

Suit Challenges Ballot Language Of Florida's Proposed Repeal of Blaine Amendment

As previously reported, earlier this year Florida's legislature voted to place a constitutional amendment on the November 2012 ballot that would repeal the state constitution's Blaine Amendment-- the provision that bars any state financial support of religious institutions. Yesterday a lawsuit was filed by representatives of a teacher's union, of a union representing school administrators, of an organization representing school boards, and by several clergy, seeking to have the proposal removed from the ballot.  The complaint (full text) in Shapiro v. Browning, (FL Cir. Ct., filed 7/20/2011), alleges that the title of the ballot measure and the summary of it that is to appear on the ballot are misleading. Florida statutes provide that the Attorney General may rewrite a ballot title or summary if a court finds that the version passed by the legislature is misleading. The lawsuit also seeks to have the court declare that the vesting of this power in the Attorney General is an unconstitutional delegation of legislative powers to an executive officer.  An FEA press release announcing the filing of the lawsuit says that the proposed amendment "is a shady way of opening the door for school vouchers for all." The Miami Herald also reports on the suit.

Denial of Permit For Church To Lease Space To School Is Upheld

In Calvary Christian Center. v. City of Fredericksburg, 2011 U.S. Dist. LEXIS 77489 (ED VA, July 18, 2011), a Virginia federal district court refused to grant a preliminary injunction to a church that was denied a special use permit that it sought in order to lease space in the church to a for-profit school for disabled children. The court rejected claims under the American for Disabilities Act, the Rehabilitation Act and RLUIPA. In rejecting the RLUIPA claim, the court concluded that the church was unlikely to be able to prove that leasing space for operation of a private school on church property amounts to an exercise of religion, nor that denial of the special use permit would amount to a substantial burden on religious practice. The church had argued that operation of the school was tied to its social ministry.

Obama Endorses Respect for Marriage Act That Would Repeal DOMA

The White House announced yesterday, both in a press briefing by Press Secretary Jay Carney, and in a post on the White House blog, that President Obama is "proud to support" S. 598, the Respect for Marriage Act, which would repeal the Defense of Marriage Act and recognize for purposes of federal law same-sex marriages that have been validly entered into in a state which recognizes such marriages. The Senate Judiciary Committee is scheduled to hold a hearing on the bill today. The same bill has been introduced in the House as H.R. 1116.

UPDATE: Transcripts of testimony at the hearing are now available online.

Church Sues Film For Copyright Violation In Use of Logo

According to Hollywood Reporter yesterday, the Church of God has filed suit in federal district court in Tennessee to prevent further showing of the film "Salvation Boulevard." The film was first shown at the Sundance Film Festival this year, but has now been released to theaters.  The lawsuit claims that the satirical film's use of a logo featuring the Christian cross surrounded by an abstract flame design violate's the church's copyright and trademark rights in its logo. The suit also claims unfair competition and violation of Tennessee's consumer protection act.

Hindu Vegetarians Can Sue Under UCC For Injuries After Meat Samosas Mistakenly Furnished

In Gupta v. Asha Enterprises, L.L.C., (NJ App., July 18, 2011), sixteen Hindu vegetarians sued an Indian restaurant which filled their order for vegetarian samosas with meat-filled samosas, some of which plaintiffs mistakenly ate. Plaintiffs sought damages for emotional distress as well as for the cost of traveling to India to participate in a spiritual cleansing ceremony made necessary in order to purify themselves after they ate the meat. The court rejected plaintiffs' claims that were based on the products liability law, deceptive advertising, breach of implied warranty and negligent infliction of emotional distress. However the court remanded the case for trial on plaintiffs' claim of breach of express warranty under the Uniform Commercial Code. The Newark Star-Ledger reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Can New York Municipal Clerks Require Accommodation of Objection To Licensing Same-Sex Marriages?

As previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception  to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk has already resigned over this. Now, however, Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses.  The accommodation provisions appear in the New York Human Rights Law, Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee

to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.

ADF's memo argues:

because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.

ADF's memo fails however to discuss two other provisions that may shed some question on its analysis. Executive Law Sec. 296(1)(d.) provides that:

an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

In addition,  Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns. [Thanks to Ruthann Robson for the lead.]

International Representatives Call For Effective Measures To Combat Religious Discrimination

As previously reported, in March 2011, in a major policy shift, the 47-member United Nations Human Rights Council unanimously adopted a Resolution on Freedom of Religion or Belief which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief.  Last week during her trip to Turkey, which included addressing the Organization of the Islamic Conference High-Level Meeting on Combating Religious Intolerance  (see prior posting), Secretary of State Hillary Rodham Clinton joined with the Secretary General of the OIC and representatives of the EU, the Arab League, the African Union and 19 individual nations in issuing a joint statement calling for implementation of the the Human Rights Council resolution.  According to a State Department release issued July 15:

Participants, resolved to go beyond mere rhetoric, and to reaffirm their commitment to freedom of religion or belief and freedom of expression by urging States to take effective measures, as set forth in Resolution 16/18, consistent with their obligations under international human rights law, to address and combat intolerance, discrimination, and violence based on religion or belief.

New Jersey Rabbi Charged By Feds With Kidnapping Man To Coerce a "Get"

The U.S. Attorney's Office for the District of New Jersey announced yesterday that authorities have arrested a Lakewood, New Jersey rabbi and his wife and charged them (full text of criminal complaint) with kidnapping an Israeli citizen living in New York in order to coerce him to grant a Jewish religious divorce (get) to his wife in Israel.  The victim of the kidnapping is identified by the London Daily Mail as Yisrael Briskman, who fled Israel two years ago after refusing  to give his wife a get. Israeli rabbinical authorities have called on members of the religious community to place pressure on Briskman to end his 5-year refusal to grant his wife a divorce. Briskman wants custody of the couple's son.  The charges in New Jersey were brought against David and Judy Wax who, it is alleged, got Briskman to their residence under false pretenses, where he was beaten and robbed. David Wax is also charged with phoning Briskman's father in Israel demanding payment of $100,000 to the family of Briskman's wife. The Wax's were released on $500,000 bail.

Michigan Church Sues Claiming RLUIPA and Constitutional Violations In Zoning Law

A lawsuit was filed in federal district court in Michigan yesterday challenging a rezoning ordinance adopted by Inkster, Michigan which prevented a church from renovating fire-damaged buildings and locating a church and parochial school on property the it owned in an area zoned as a business district. The complaint (full text) in T.C. Spann Bible Institute v. City of Inkster, (ED MI, filed 7/18/2011), alleges violations of the Religious Land Use and Institutionalized Persons Act as well as numerous provisions of the state and federal Constitutions-- including the free exercise clause and a claim that the city's excessively burdensome regulations amounted to a regulatory taking of the church's property. The complaint contends, among other things, that:

The Inkster Code effectively prohibits... any ... religious organization from locating their church and parochial school in Inkster unless such organization meets a series of burdensome Special Conditions, which apply only to churches and parochial schools.

The complaint asks for damages of $1.5 million on each of ten counts. [Thanks to Brian D. Wassom for the lead.]

Illinois Will Continue Catholic Charities For New Foster Care Cases While Litigation Is Progressing

According to a press release from the Thomas More Society, the state of Illinois announced in court yesterday that it will resume the referral of new foster care cases to Catholic Charities in the state while litigation continues. The dispute began when the state legislature failed to enact an exemption that would protect Catholic agencies who refuse to place children with same-sex couples who now may enter civil unions in Illinois. (See prior posting.) Three dioceses sued to confirm that they do not need to place children with same-sex couples, and the court granted a preliminary injunction while the litigation was pending in order to prevent abrupt termination of foster care relationships. However the injunction was unclear as to whether it applied only to children already in foster care, or to new referrals as well. So the dioceses filed an emergency motion to clarify that point. (See prior posting.) The state's concession appears to eliminate the need for the court to pass on the emergency motion.

Malaysian Court Says Constitution Does Not Protect Right To Renounce Islam

According to the Malay Mail, an appeals court in Malaysia yesterday rejected a claim that the protection in Art. 11(1) of the Malaysian Constitution allowing every person the right to profess and practice his religion precludes prosecution of a follower of Ayah Pin for apostasy by a Syariah court. Kamariah Ali had filed suit in the civil courts seeking a declaration that the Constitution protects the right of Muslims who reach adulthood to leave the religion. She argued that her declaration that she no longer professes Islam should remove her from the jurisdiction of Syariah law.  However the appeals court held that the Constitution gives Syariah Courts exclusive jurisdiction to determine matters relating to Islam. (See prior related posting.)

Court Orders 10 Commandments Monument Removed From Florida Courthouse

In ACLU of Florida Inc. v. Dixie County Florida, (ND FL, July 15, 2011), a Florida federal district court held that Dixie County must remove a large Ten Commandments monument that has been displayed since 2006 on the steps of the County Courthouse. (Photo om monument). The monument was authorized at the urging of a local businessman who paid for it and challenged the Board of County Commissioners to have the courage to allow him to put it up. The court rejected the argument that the monument protected private speech of the businessman who paid for, and owns, it:

Dixie County contends that the six-ton granite monument is not permanent because it is not anchored to the stone of the courthouse steps. Because it is not a permanent monument, Dixie County argues, the display should be analyzed as would a speaker speaking in a public forum on the topic of their choosing, rather than as a monument that may imply government endorsement by the circumstances of its placement or continued presence. The Court disagrees. In this analysis, the opposite of permanent is not “detached,” but rather “temporary.” Dixie County cites no authority for the proposition that only monuments anchored or affixed to their surroundings should be considered permanent. The monument in question weighs twelve thousand pounds, has been there for three years, and Dixie County has no plans to move it....

Despite the actual ownership of the monument, the location and permanent nature of the display make it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed. As such, the Court finds that the monument displaying the Ten Commandments is government speech and must comport with the Establishment Clause.

Moving to the Establishment Clause issue, the court concluded:

The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office. “No viewer could reasonably think that it occupies this location without the support and approval of the government.”

The court ordered the monument removed within 30 days and awarded nominal damages of $1 to the ACLU. The ACLU issued a press release announcing the decision and the Gainesville (FL) Sun reports on the decision.

President Meets With Dalai Lama

According to the White House Blog, on Saturday morning President Barack Obama met with the Dalai Lama in the Map Room at the White House.  The Dalai Lama is on a two-week visit to the United States. (See prior posting.) After the meeting, the White House issued a statement, which read in part:

The President reiterated his strong support for the preservation of the unique religious, cultural, and linguistic traditions of Tibet and the Tibetan people throughout the world. He underscored the importance of the protection of human rights of Tibetans in China.... Reiterating the U.S. policy that Tibet is a part of the People’s Republic of China ..., the President stressed that he encourages direct dialogue.... The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government can soon resume.

Irish Government To Propose Ending Confidentiality of Confessions When Child Abuse Is Reported

After new disclosures last week of the Catholic Church in Ireland concealing clergy sexual abuse of children from authorities as late as 2009 (see prior posting), Ireland's prime minister Enda Kenny said that his government will submit legislation to Parliament that will require reporting of child abuse to civil authorities. According to Reuters last Thursday, the law will override the confidentiality of the confessional and require disclosure even when the abuse is disclosed only in confession to a priest. [Thanks to Pew Sitter for the lead.]

Herman Cain Says Communities Should Be Able To Block Mosques

Yesterday, Chris Wallace interviewed Herman Cain, a candidate for the Republican nomination for President (full transcript).  A portion of the interview focused on Cain's sometimes controversial views of Muslim Americans. Here is an extensive excerpt from the interview:

WALLACE: You said this week that you oppose construction of a new mosque in Murfreesboro, Tennessee..... What's your objection to their building a new mosque?

CAIN: One of my guiding principles, Chris, is that if you want to know the solution to the problem or if you want to understand the problem, go to source closest to the problem. I talk to the people in that community.

And here's their problem and I sympathized with them. Our Constitution guarantees separation of church and state. Islam combines church and state. They are using the church part of our First Amendment to infuse their mosque in that community and the people in the community do not like it, they disagree with it.

Sharia law is what they are to infuse in to our --

WALLACE: Wait a minute. Are you saying that we should ban Muslims from worshiping in this country?

CAIN: I'm not saying that. What I'm saying is American laws in American courts. That's what the people of Murfreesboro are saying.... Well, Chris, I happen to also know that it's not just about a religious mosque. There are other things going on based upon talking to the people closest to the problem. It's not a mosque for religious purposes. This is what the people are objecting to....

WALLACE: ... [M]y question, I guess is, this isn't Ground Zero in New York City. It's not hallowed ground. Don't Americans have a right of whatever religion under the Constitution, which you speak so much about, to free speech and freedom to worship.

CAIN: To the people in Murfreesboro, it is hallowed ground. They are objecting to the intentions of trying to get Sharia law.... 

WALLACE: But couldn't any community then say we don't want a mosque in our community?

CAIN: ... [L]et's go back to the fundamental issue that the people are basically saying that they are objecting to. They are objecting to the fact that Islam is both religion and of set of laws, Sharia law. That's the difference between any one of our other traditional religions where it's just about religious purposes.

The people in the community know best. And I happen to side with the people in the community.

WALLACE: So, you're saying that any community, if they want to ban a mosque.

CAIN: Yes, they have the right to do that. That's not discriminating based upon religion -- against that particular religion. There is an aspect of them building that mosque that doesn't get talked about. And the people in the community know what is it and they are talking about it.

WALLACE: ... This gets back to an early controversy where ... you said that you're not comfortable with the idea of appointing a Muslim for your cabinet. As someone who I'm sure who faced prejudice growing up ... in the '50s, '60s, how do you respond to those who say you are doing the same thing?

CAIN: I tell them that that's absolutely not true, because it is absolutely totally different. I grew up, like you said, in the '50s and the '60s. I grew up before civilian rights movement, during the civil rights movement and after the civil rights movement.... We had some laws that were restricting people because of their color and because of their color only. That's what that situation was.

WALLACE: But aren't you willing to restrict people because of their religion?

CAIN: I'm willing to take a harder look at people that might be terrorists. That's what I'm saying. Look, I know that that there's a peaceful group of Muslims in this country. God bless them and they are tree to worship. I have no problem with that.

If you at my career, I have never discriminated against anybody because of their religion, their sex, or origin, or anything like that. I'm simply saying I owe it to the American people to be cautious because terrorists are trying to kill us. And so, yes, I'm going to err on the side of caution, rather than on the side of carelessness.

Recent Articles of Interest

From SSRN:

• Jay Wexler, Government Disapproval of Religion, (Boston University School of Law, Public Law & Legal Theory Research Paper No. 11-32, July 2011).
• Pol Morillas, Hezbollah’s Identities and their Relevance for Cultural and Religious IR, (ICIP Working Papers 2009/4, Dec. 2011).
• Kenneth L. Marcus, Bullying as a Civil Rights Violation: The U.S. Department of Education’s Approach to Harassment, (July 11, 2011).
• Christopher C. Lund, Understanding the Ministerial Exception, (North Carolina Law Review, Vol. 90, No. 1, Fall 2011).
• Haider Ala Hamoudi, Book Review: Constitutional Theocracy by Ran Hirschl, (Osgoode Hall Law Journal, Forthcoming).
• Nicole Stelle Garnett and Margaret F. Brinig, Catholic Schools, Charter Schools, and Urban Neighborhoods, (University of Chicago Law Review, 2012).
• Nicole Stelle Garnett, A Winn for Educational Pluralism, (Yale Law Journal Online, May 2011).
• Lucia Ann Silecchia, Pope John Paul II's Evangelium Vitae and the 'Horizon of the Good', (Journal of Christian Legal Thought, Vol. 1, No. 1, Spring 2011).
• Jonathan Caleb Landon, Usury and the Church: A Christian Response to Payday Lending, (May 6, 2011).
• Charles J. Russo and William E. Thro, Another Nail in the Coffin of Religious Freedom? Christian Legal Society v. Martinez, (Education Law Journal, Vol. 12, 2011).
• Jeffrey A. Parness, Civil Unions and Parenthood at Birth, (Illinois Bar Journal, Vol. 99, October 2011).

From SmartCILP and elsewhere:

• John R. Dorocak and Lloyd E. Peake, Political Activity of Tax-Exempt Churches, Particularly After Citizens United v. Federal Election Commission and California's Proposition 8 Ban On Same-Sex Marriage: Render Unto Caesar What Is Caesar's, [Abstract], 9 First Amendment Law Review 448-485 (2011).
• K. Eli Akhavan, Basic Principles of Estate Planning Within the Context of Jewish Law, Probate and Property, July/Aug. 2011, pg. 60.

IRS Asked To Investigate Church For Endorsing Recall

Americans United announced last week that it has written the Internal Revenue Service (full text of letter) asking it to investigate the El Paso, Texas, Tom Brown Ministries. AU says the ministry engaged in partisan politics by endorsing the recall of the mayor and two members of city council after the city approved extending health care benefits to domestic partners. AU says that a disclaimer on the church's website saying that the site is owned by Tom Brown and not the church is insufficient to prevent the recall efforts being attributed to the Ministries. The website contains an open letter to city council and a link to the recall petition. Brown also announced his support for the recall in an e-mail and during church services last month.

Texas Board of Education Will Debate Evolution In Selecting Supplemental Science Materials

The Texas Independent reported Friday that this week the Texas State Board of Education will again be debating evolution as it meets to select supplemental science curriculum materials for public schools. New Board chairman Barbara Cargill, a former science teacher, told the Texas Eagle Forum that she is one of only 'six true conservative Christians on the board." Cargill favors schools teaching  the "strengths and weaknesses" of the theory of evolution. Proponents of that view now want to introduce that focus in supplemental materials, since the board rejected that language for curriculum standards in 2009. (See prior posting.) It is unclear how four new Republican board members will vote.

Tajik Government Fights Rise of Islam

The New York Times today reports on efforts of the government of Tajikistan to fight the increasing popularity of Islam in the country.  According to the Times:

Bearded men have been detained at random, and women barred from religious services. This year, the government demanded that students studying religion at universities in places like Egypt, Syria and Iran return home. The police have shuttered private mosques and Islamic Web sites, and government censors now monitor Friday sermons, stepping in when muftis stray from the government line.

Last month, lawmakers took what many here said was a drastic step further: they passed a law that would, among other things, bar children younger than 18 from attending religious services at mosques. 

It is called the law “on parental responsibility for educating and raising children,” and the measure, according to officials, is meant to prevent children from skipping school to attend prayer services, and it would hold parents responsible if they do.

Government critics liken it to a Soviet-style attempt at reversing Islam’s spread. Many warn, however, that banning young people from mosques may have the opposite effect.

UPDATE: Forum18 (July 21) has a more detailed analysis of Tajikistan's Parental Responsibility Law, as well as a new criminal law provision barring extremist religious teaching.

Recent Prisoner Free Exercise Cases

In Kuperman v. Wrenn, (1st Cir., July 14, 2011), the 1st Circuit affirmed the dismissal of claims by an Orthodox Jewish former prisoner that his rights were violated by requiring him to have a beard no more 1/4 inch in length.

In Garcia v. Clark, 2011 U.S. Dist. LEXIS 73647 (E CA, July 8, 2011), a California federal magistrate judge recommended that a preliminary injunction be issued requiring staff at a substance abuse treatment facility to furnish plaintiff, an Orthodox Jewish inmate, with the same kosher meals that are provided to similarly situated inmates and to provide him a place to pray at breakfast time. Plaintiff claimed that correctional officers harass, degrade and mock him, continuously take his Kosher food and are attempting to deny him all Kosher meals because he is not picking up his morning meal. UPDATE: The court adopted the magistrate's recommendations at 2011 U.S. Dist. LEXIS 108284, Sept. 22, 2011.

In Sherman-Bey v. Marshall, 2011 U.S. Dist. LEXIS 73869 (CD CA, July 8, 2011), a California federal district court accepted the findings and recommendations of a federal magistrate judge (2011 U.S. Dist. LEXIS 73801, April 25, 2011) and allowed an inmate who was a member of the Moorish Science Temple to proceed with his free exercise claim that he was denied the right to purchase a red fez because red was seen as gang colors; and with his 1st and 14th Amendment claims that Moorish Science Temple adherents were denied separate congregational services. RLUIPA claims and claims he could not buy scented oils were dismissed.

In Kindred v. California Department Mental Health, 2011 U.S. Dist. LEXIS 74908 (ED CA, July 11, 2011), a California federal magistrate judge recommended dismissal of claims by plaintiff, who is housed at a state hospital, that his rights were infringed when he was not permitted to buy a prayer rug and one of his spiritual books was damaged. Plaintiff was permitted to file an amended complaint as to some of his official capacity RLUIPA claims.

In Chase v. City of Philadelphia, 2011 U.S. Dist. LEXIS 75463 (ED PA, July 12, 2011), a Pennsylvania federal district court denied a TRO to a pre-trial detainee who requested kosher meals, finding that he does not hold a sincere belief in the Jewish religion.

In Bean v. Mancuso, 2011 U.S. Dist. LEXIS 74994 (WD LA, July 12, 2011), a federal district court accepted a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 75005, June 17, 2011) and dismissed as frivolous an inmate's claim that he needed a vegetarian diet for religious reasons.

In Harris v. Lappin, 2011 U.S. Dist. LEXIS 73003 (ED VA, July 7, 2011), a Virginia federal district court dismissed a former inmate's claim that racial and religious discrimination led to his being denied a sentence reduction for completing a drug abuse program.

In Mayweathers v. Swarthout, 2011 U.S. Dist. LEXIS 76413 (ED CA, July 13, 2011), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his claim that he should be provided kosher meals until halal meals are available in prison.

U.S.-Iraq At Odds Over Return Of Jewish Books and Materials To Iraq

Haaretz earlier this week, in a report from AP, discloses a complex dispute between U.S. and Iraqi officials over the return to Iraq of a trove of Jewish books, photos and religious materials which U.S. forces discovered in 2003 in a basement used by Saddam Hussein's secret police.  Found by a U.S. military team searching for weapons of mass destruction, the collection was sent to the United States for restoration and safekeeping under an agreement entered in 2003 between the U.S.-led Coalition Provisional Authority and the National Archives and Records Administration. Under the agreement, the U.S. would restore and display the collection, but would return it to Iraq whenever the Iraqi government requested. At a meeting held in June 2010 between U.S. officials and the head of Iraq's National Library and Archives, it was decided that half the material would be returned by the end of 2010, and the rest only after it was restored and displayed in the United States. However, the U.S. failed to meet the 2010 deadline, and Iraq's deputy culture minister, Taher Naser al-Hmood, is demanding that the materials be returned.

The State Department says it has only recently received the $3 million in funding to do the restoration work.  Some fear that once the material is returned to Iraq, it will not be accessible to Jewish scholars, particularly Israeli ones. However Iraq says it will digitize the material so it is available to those outside Iraq. The situation is complicated by Iraqi suspicions that American Jewish groups are pressing the State Department not to return the materials. Those suspicions also interfered with attempts by Iraqi Jewish exiles to use these negotiations to also raise issues such as protecting Jewish cemeteries and shrines in Iraq.

9th Circuit Now Says Recruitment Portion of DADT Can Be Implemented On Congress' Timetable

Once again, the U.S. 9th Circuit Court of Appeals has changed the rules on enforcement of the military's "Don't Ask, Don't Tell" policy.  Last October, a district court enjoined enforcement of DADT.  In November, the 9th Circuit stayed that injunction, allowing enforcement of DADT pending appeal.  However on July 7, the 9th Circuit lifted the stay, reinstituting the enforcement ban. (See prior posting.) Now, in an order handed down yesterday in response to an emergency motion for reconsideration, in Log Cabin Republicans v. United States, (9th Cir., July 15, 2011), the court changed its mind again and permitted enforcement of one aspect of DADT.  Under the ruling, the military may not investigate, penalize or discharge any current service members under DADT.  However the military does not need to change its recruiting practices at this time.  As reported by the Washington Blade, the military may for now continue to apply DADT to prevent openly gay individuals from enlisting in the military.  Instead the military will apparently be able to implement an end to DADT recruiting practices on its own timetable as set out in Congressional repeal legislation passed last year.  Explaining its order, the 9th Circuit said that the government had not informed the court how far along it was in implementation of the Congressional DADT repeal. However the court also ordered the government to file additional information explaining why it had failed to previously give the court this information.

Secretary Clinton Addresses Religious Freedom During Trip To Turkey

Secretary of State Hillary Rodham Clinton is on a trip to Turkey, Greece and several Asian countries from July 14 to 25. (Itinerary).  As reported by Turkish Weekly, while in Turkey on July 15-16, she had several occassions to address issues of religious liberty.  In her joint press conference with Turkish Foreign Minister Ahmet  Davutoglu (full text), she said:

Today, the foreign minister and I discussed additional ways we can further strengthen our ties. Turkey’s upcoming constitutional reform process presents an opportunity to address concerns about recent restrictions that I heard about today from young Turks about the freedom of expression and religion, to bolster protections for minority rights, and advance the prospects for EU membership, which we wholly and enthusiastically support.

We also hope that a process will include civil society and parties from across the political spectrum. And of course, I hope that sometime soon we can see the reopening of the Halki Seminary that highlights Turkey’s strength of democracy and its leadership in a changing region.

She also spoke at the Organization of the Islamic Conference High-Level Meeting on Combating Religious Intolerance held at Istanbul's Center for Islamic Arts and History. (Full text of remarks.) She said in part:

I want to applaud the Organization of Islamic Conference and the European Union for helping pass Resolution 1618 at the Human Rights Council.... [T]ogether we have begun to overcome the false divide that pits religious sensitivities against freedom of expression, and we are pursuing a new approach based on concrete steps to fight intolerance wherever it occurs. Under this resolution, the international community is taking a strong stand for freedom of expression and worship, and against discrimination and violence based upon religion or belief.

These are fundamental freedoms that belong to all people in all places, and they are certainly essential to democracy. But as the secretary general just outlined, we now need to move to implementation. The resolution calls upon states to protect freedom of religion, to counter offensive expression through education, interfaith dialogue, and public debate, and to prohibit discrimination, profiling, and hate crimes, but not to criminalize speech unless there is an incitement to imminent violence. We will be looking to all countries to hold themselves accountable and to join us in reporting to the UN’s Office of the High Commissioner of Human Rights on their progress in taking these steps.

For our part, I have asked our Ambassador-at-Large for Religious Freedom, Suzan Johnson Cook, to spearhead our implementation efforts. And to build on the momentum from today’s meeting, later this year the United States intends to invite relevant experts from around the world to the first of what we hope will be a series of meetings to discuss best practices, exchange ideas, and keep us moving forward beyond the polarizing debates of the past; to build those muscles of respect and empathy and tolerance that the secretary general referenced. It is essential that we advance this new consensus and strengthen it, both at the United Nations and beyond, in order to avoid a return to the old patterns of division.

Government Support For Orthodox Church Questioned In Greece

Reuters today reports that the sovereign debt crisis in Greece has caused many to question the government support and tax breaks given to the Greek Orthodox Church.  Some 100,000 people have joined a Greek Facebook page, "Tax the Church." Church finances, tax payments and assets lack transparency. However campaigners claim that Greek Orthodox Church owns more land than any entity other than the state and owns 1.5% of the National Bank of Greece. The government spends 268 million Euros each year paying the salaries of 9,000 priests as well as pensions for retired clergy.  The Church says it paid 1.3 million Euros in taxes last year. The Church says payments of priests' salaries are justified by the fact that the Church handed over 96% of the property it owned to the state when Greece became independent of the Ottoman Empire in 1821. Also several ministry buildings, universities and hospitals in Athens are on church property that is leased to the state for a nominal amount.

City's Deal With Catholic High School Criticized

On Wednesday, Americans United wrote the South Bend, Indiana Common Council (full text of letter) complaining about a Council decision last month to buy an old Family Dollar store for $1.2 million and donate it to a Catholic high school which will spend $35 million on a new building on the site. The letter says that Council, in approving the transaction, misunderstood its obligations under the U.S. Constitution. Under an agreement with the city, St. Joseph's High School will allow outside athletic groups and the public use its facilities when they are not in use by the school.  In a press release Wednesday, AU said that "the public’s minimal benefit from the transaction does not excuse the constitutional violation."

Abercrombie's Enforcement of "Look Policy" Against Muslim Job Applicant Violates Title VII

In EEOC v. Abercrombie & Fitch Stores, Inc., (ND OK, July 13, 2011), an Oklahoma federal district court held that Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act by refusing to hire a Muslim teenager because her religious belief requiring her to wear a headscarf violates the company's "Look Policy" for sales models.  The court first held that the fact that Samantha Elauf wore a headscarf to her employment interview placed the company on notice that she would need an accommodation.  The court rejected Abercrombie's claim that granting an exemption would create an "undue hardship" because it would negatively impact Abercrombie's marketing strategy. The court, however, said the company had failed to meet its burden of proving undue hardship because it cited no studies or specific examples to support it claim. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

No Jurisdiction Over Suit Against Church Claiming Governance Problems

In Fesseha v.Ethiopian Orthodox Tewahedo Debre Meheret St. Michael's Church in Dallas, (TX App., July 12, 2011), a Texas appellate court held that the trial court lacked jurisdiction over a suit by former church members against the church and its trustees for improperly conduction elections, meetings and improperly amending the bylaws and establishing a $30 per month membership fee. The court refused to apply the "neutral principles of law" approach.  A claim that the church failed to follow its bylaws on internal matters involves internal church governance and ecclesiastical concerns that civil courts cannot decide.

City Council Prayer Policy Upheld

In Rubin v. City of Lancaster, (CD CA, July 11, 2011), a California federal district court rejected an Establishment Clause challenge to prayers with references to Jesus that were delivered under the invocation policy of Lancaster, California City Council.  Under the policy, which had been approved by voters in a referendum, all religious congregations with a presence in the city are invited to volunteer to lead an invocation.  Any single congregation is limited to no more than 3 times per year, and so far everyone who has volunteered has led an invocation.  In this lawsuit, plaintiffs limited their challenge to the invocation with explicit Christian references delivered at one meeting they attended. The court held:

Plaintiffs have failed to establish that the Policy has been used for an improper purpose or is otherwise unconstitutional. Volunteers of numerous faiths are invited to and have given invocations before City Council meetings, and the selection process does not discriminate against any faith. 

... Determining that the April 27, 2010 invocation violated the Establishment Clause by its single reference to Jesus would require this Court to analyze the content of the prayer. But because Plaintiffs do not even claim the April 27 invocation was “exploited to proselytize or advance any one, or to disparage any other, faith or belief,” this Court cannot properly perform such an analysis.... Because their evidence fails to show the April 27 invocation (or the Invocation Policy itself) would have the “effect of affiliating the government with any other one specific faith or belief,” Plaintiffs have not shown an Establishment Clause violation.

According to Wednesday's Los Angeles Daily News, plaintiffs plan to appeal to the 9th Circuit.

Austrian "Pastafarian" Gets License Wearing Pasta Strainer As Head Covering

In Austria, Niko Alm, an atheist who says he belongs to the Church of the Flying Spaghetti Monster, has been successful in getting authorities to issue him a drivers license with him wearing a pasta strainer as a head covering in his photo. According to BBC today, Alm decided to claim the head covering was required by his belief in "pastafarianism" after he read that one could wear a head covering in a license photo only for religious reasons.  Police, however, say that the only requirement is that the photo show the driver's face uncovered, which Alm's did. Alm said that after he applied, he was asked to submit to a medical interview to determine his mental fitness to drive.  Alm says it took 3 years for him to get the license, but police say it has been ready since 2009, but was never picked up.

Hungary Enacts Restrictive New Religion Law

MTI reports that on Monday, Hungary's Parliament, by a vote of 254-43, passed a new law on "The Right to Freedom of Conscience and Religion and on the Status of Churches, Religions and Religious Communities." A press release by the Institute on Religion and Public Policy (IRPP) calls it the "worst religion law in Europe." The law specifically recognizes 14 religious groups and communities. All others will need to obtain re-registration. Reports on the new law are unclear on whether re-registration requires judicial or parliamentary approval.  Only groups that have operated in Hungary for 20 years can be re-registered however, though just before final passage Parliament eliminated a provision that would also have required 1000 members to register. An analysis by IRPP says:

The Draft Law would “de-register” targeted minority faiths that have been registered as religions in Hungary since the adoption of the 1990 Religion Law, while allowing favored religious organizations to maintain their registered religious status and enjoy all the rights and privileges that flow to religious organizations under the Bill. Over a hundred religious organizations currently registered as such will be retroactively stripped of their status as religious communities and “de-registered” as religious organizations....

In response to the Institute’s Report, some proponents of this legislation in Hungary have attempted to justify these discriminatory provisions by arguing that they meet human rights standards because “deregistered” religious organizations may continue to operate as “civil associations performing religious activities”.

Irish Government Report Criticizes Cloyne Diocese Failure To Report Sex Abuse

In Ireland yesterday, the government made public a 341-page report, The Commission of Investigation Report into the Catholic Diocese of Cloyne. The government commissioned the report in 2009 after the Church's own National Board for Safeguarding Children published a critical report on child protection practices in the diocese. As reported by the Irish Times, the report released yesterday strongly criticizes the Vatican. The report says in part:

The document entitled Child Sexual Abuse: Framework for a Church Response ... was agreed by the Irish Bishops’ Conference in 1996.... This document contained a detailed and easy to implement set of procedures for handling allegations, suspicions and concerns about clerical child sexual abuse....

Despite Bishop Magee’s stated position on the implementation of the Framework Document, the reality is that the guidelines set out in that document were not fully or consistently implemented in the Diocese of Cloyne in the period 1996 to 2009. The primary responsibility for the failure to implement the agreed procedures lies with Bishop Magee....  [He] took little or no active interest in the management of clerical child sexual abuse cases until 2008.... As a result of this vacuum, the diocese’s functions in the matter of clerical child sexual abuse were, by default, exercised by others, ... [principally] Monsignor O’Callaghan. He did not approve of ... the requirement to report to the civil authorities....

The reaction of the Vatican to the Framework Document was entirely unhelpful to any bishop who wanted to implement the agreed procedures.... The Congregation for the Clergy told the bishops of Ireland that the document was “not an official document of the Episcopal Conference but merely a study document”. The Congregation further stated that it contained:  “procedures and dispositions which appear contrary to canonical discipline and which, if applied, could invalidate the acts of the same Bishops who are attempting to put a stop to these problems....

This effectively gave individual Irish bishops the freedom to ignore the procedures which they had agreed and gave comfort and support to those who, like Monsignor O’Callaghan, dissented from the stated official Irish Church policy.

In reaction to the report, Justice Minster Alan Shatter said  he will introduce legislation making it a criminal offense to fail to report the sexual abuse of a child or a vulnerable adult. (Irish Times.) RTE News has a summary of the report and extensive coverage of the reaction to it by both Church and government officials. (See prior related posting.)

States Enact Record Number of Abortion Restrictions In 2011

The Guttmacher Institute yesterday reported that in the first 6 months of 2011, state legislatures enacted a record  80 new provisions restricting access to abortion. This is more than double the previous record-- 34 enacted in 2005.  The states also enacted 82 other provisions relating to reproductive health and reproductive rights.

FFRF Sues Texas Governor Over Planned Prayer Rally

The Freedom from Religion Foundation announced yesterday that it and 5 of its Houston, Texas members have filed a federal lawsuit seeking:

a declaration that Texas Governor Rick Perry’s initiation, organization, promotion and participation as governor in a prayer rally at Reliant Stadium in Houston, Texas, scheduled for August 6, 2011, in collaboration with the American Family Association, violates the Establishment Clause of the First Amendment to the United States Constitution.

 The complaint (full text) in Staley v. Perry, (SD TX, filed 7/13/2011), says that the plans for the prayer rally were preceded by an official proclamation from the governor calling on Texans to participate in a Day of Prayer and Fasting for Our Nation. In addition to a declaratory judgment, the complaint asks the court to order the governor to withdraw his permission for the American Family Association to use his written and videotaped endorsements of the rally on its website, and to enjoin his future promotion of prayer rallies or designating days of prayer in the future. (See prior related posting.)

"Sister Wives" Challenge Utah's Ban on Polygamy

A lawsuit was filed in federal district court in Utah yesterday by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute which bars polygamy.  The complaint (full text) in Brown v. Herbert, (D UT, filed 7/13/3011) summarizes the claims of Kody Brown and his 4 wives as follows:

To the extent that Article III of the Utah State Constitution, Utah Code Ann. §30-1-2, and ... §30-1-4.1 are used as the basis for the criminalization of plural relationships or families, the Brown family seeks a declaration that these laws are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment ... and the Free Exercixe, Establishment, Free Speech, and Freedom of Association Clauses of the Firat Amendment....

According to the Salt Lake Tribune, plaintiffs' lawyer filing the lawsuit-- George Washington University Prof. Jonathan Turley -- at a press conference said: "We can’t embrace privacy as a principle and pick and choose who can enjoy it."  Utah Attorney General Mark Shurtleff says polygamy is different because it involves not just consenting adults, but also their entire families. According to AP, Utah has not prosecuted  prosecuted anyone for polygamy under its bigamy statute since 2003. However, according to the complaint in the lawsuit, the Browns have been subject to criminal investigations in Utah.

Court Enjoins New York City's Disclosure Law For Pregnancy Centers

In Evergreen Association, Inc. v. City of New York, (SD NY, July 13, 2011), a New York federal district court issued a preliminary injunction preventing New York City's Local Law 17 from taking effect as scheduled today. The law requires "pregnancy services centers" that do not have a licensed medical professional on the premises to make disclosures regarding the availability of a licensed medical provider, and whether it provides referrals for abortions, emergency contraception and prenatal care. The disclosures must be made in English and Spanish on signs in the waiting room and elsewhere, in any ads for the center, and orally to anyone requesting abortion, emergency contraception or prenatal care.

The court concluded that the ordinance violates defendants' free speech rights by compelling defendants to disseminate a particular message.  It held that strict scrutiny applies in reviewing the ordinance because plaintiffs' offering of pregnancy services were not commercial speech. Instead they were grounded in their opposition to abortion and emergency contraception. The court concluded that while the law was enacted to counteract deceptive practices that interfere with access to reproductive health services or mislead women into believing they had received care from a licensed medical provider, it is not narrowly tailored. Less burdensome alternatives are available to achieve the city's purpose. Also the court found that the definition of "pregnancy services center" is unconstitutionally vague. The American Center for Law and Justice issued a press release announcing the decision.

Protesters Enjoined From Disrupting Church Services Anywhere In U.S.

Two separate orders, one a consent decree and one a default judgment, were issued Monday by a Michigan federal district court in Mount Hope Church v. Bash Back!, (WD MI, July 11, 2011). The lawsuit grew out of a protest, infiltration and disruption of the Church's service in November 2008 by a self-described "Radical Trans/Queer" group. (See prior posting.)  The orders permanently enjoin the group and individual defendants from

disrupting a religious service anywhere in the United States by shouting, yelling, throwing objects, unfurling a banner or displaying any other sign not approved by the church, or by otherwise causing a disturbance.

The consent decree in the case of the individual defendants added: "The Defendants shall retain their right to engage in lawful First Amendment speech in a public forum." This qualification was not in the otherwise identical operative language of the default judgment against the organization itself.

The orders also permanently enjoin defendants "from conducting a protest on the private property of any place of worship in the United States" and "from blocking, impeding, or making unreasonably difficult ingress or egress to entrances and/or exits of any place of worship in the United States." Alliance Defense Fund issued a press release announcing the orders.

Kentucky Death Row Inmates Sue For Pastoral Visits

AP reports that a group of death row inmates in Kentucky have filed a class action in federal court challenging Kentucky State Penitentiary's policy of denying one-on-one pastoral visits to death row inmates. State officials declined comment on the lawsuit.

9th Circuit: Damages Under RLUIPA Still Recoverable Against Municipalities

In Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, (9th Cir., July 12, 2011), the 9th Circuit held that a church which was wrongfully required to obtain a conditional use permit for its building can recover damages under the Religious Land Use and Institutionalized Persons Act despite the U.S. Supreme Court's recent decision in Sossamon v. Texas. (See prior posting). The 9th Circuit reasoned:

Sossamon is grounded on the line of Eleventh Amendment authority requiring "clear expression" to abrogate the sovereign immunity of states from damages claims. The Eleventh Amendment requirement does not apply to municipalities. The City of Yuma,therefore, may be liable for monetary damages under RLUIPA, if plaintiffs prove a violation and damages.

The court went on to find that requiring a conditional use permit for religious organizations and not for other membership organizations was a violation of the "equal terms" provision of RLUIPA.  Yuma had attempted to justify the different treatment on the ground that the presence of the church would have precluded issuance of liquor permits to other businesses within 300 feet.  But the court responded that "many of the uses permitted as of right would have the same practical effect as a church of blighting a potential block of bars and nightclubs." The Yuma (AZ) Sun reports on the decision.

Illinois Catholic Charities Gets Temporary Restoration of State Foster Care Contracts

Last month, three Illinois Catholic dioceses-- those of Springfield, Peoria and Joliet--  filed a state court lawsuit  seeking a declaratory judgement that they are acting within the law in offering adoption and foster care services only to married couples and to non-cohabiting single individuals and in refusing to place children with couples in same-sex civil unions. (See prior posting.)  Now AP reports that yesterday, a Sangamon County Circuit Court issued a temporary injunction, pending a hearing next month, reinstating the state contracts relating to children in Catholic Charities supported foster homes. The court expressed concern that abrupt termination could affect the well being of the children in foster care.  The state had argued that the issue was moot since the contracts expired June 30 and had not been renewed because Catholic Charities indicated they would not comply with state law.  Catholic Charities wants to be able to refer same-sex couples to other adoption and foster care agencies.

UPDATE: AP reported on July 13 that Illinois will not cut off funding to other faith-based agencies in the state for existing children in foster care, even though they are not covered by this injunction, until this case is resolved.

UPDATE2: The Chicago Tribune reported July 15 that dioceses in Springfield, Peoria and Joliet filed emergency motions to obtain a clarification from the court on whether under its order the state can stop referring new cases to Catholic Charities. UPDATE3: Here is a copy of the motion filed by the dioceses.

Town Clerk Resigns Over New York Same-Sex Marriages

In the town of Barker, New York, 56-year old Laura Fotusky has become the first town clerk in the state to resign over the recently enacted same-sex marriage bill.  According to the International Business Times, Fotusky says that her religious beliefs preclude her from signing a marriage certificate for a same-sex couple. The full text of Fotusky's resignation letter is included in a posting on the website of New Yorkers for Constitutional Freedoms.  In the letter, which was presented to the Town Board on July 11, she says: "I would be compromising my moral conscience if I participated in the licensing procedure."

UK Equality Commission Wants European Court To Require Accommodation of Employees' Religious Beliefs

Britain's Equality and Human Rights Commission announced Monday that it has petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempt by employees to obtain accommodation of their religious practices.  In its applications to intervene, the Commission argues that past decisions have not sufficiently protected freedom of religion or belief.  It will urge the Court to adopt a principle of reasonable accommodation of religious beliefs.  Two of the cases involve female employees who wished to wear a cross on a necklace in violation of their employers' dress policies. (Applications of Nadia Eweida and Shirley Chaplin).  The second two cases involved employees with religous objections to same-sex unions.  One case involved a marriage registrar who objected to taking part in registration of same-sex civil partnerships.  The second involved a counselor who had concerns about providing sexual counselling to same-sex couples. (Applications of Lillian Ladele and Gary McFarlane).

9th Circuit Tells Government To Clarify Its Position On "Don't Ask, Don't Tell"

The U.S. 9th Circuit Court of Appeals yesterday issued an order requiring the Obama Administration to clarify its position on "Don't Ask, Don't Tell."  The district court held the law unconstitutional, and Congress has enacted a repeal of policy which becomes effective when the President, Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that certain conditions have been met. (See prior posting.) In Log Cabin Republicans v. United States, (9th Cir., July 11, 2011), the 9th Circuit said:

No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed.

The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C §530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute)....If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality....

The government was ordered to advise the court whether it intendes to submit a §530D report to Congress in a timely manner so Congress can intervene. The parties were also ordered to show cause why the case should not be dismissed as moot, at least once the Congressional repeal takes effect. National Law Journal reports on the court's order.

Interagency Group On Religion and Global Affairs Chaired From White House

In a White House blog posting yesterday, Joshua Dubois, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships, discusses the Interagency Working Group on Religion and Global Affairs that was launched, co-chaired by the White House Faith-Based Office and the White House National Security staff.  He said in part:

This groundbreaking working developed a comprehensive map of how our government currently engages religious actors in foreign affairs through USAID Missions, Embassies, and Departments across government from the Department of Defense to the Department of Health and Human Services. As a result of this work, we’ve seen new courses in religious engagement at the Foreign Service Institute, new efforts on religion and global affairs at the State Department, and a renewed focus on the intersection of religion and foreign policy across the United States Government.

We also work closely with the National Security Staff to make sure that the administration is supporting the protection of religious minorities. We formed a first-ever interagency working group towards this end, and meet regularly to ensure that federal agencies are working with one another towards a comprehensive approach to religious minority protection.

Pakistani Court Orders More Train Cars For Pilgrims To Saint's Urs

In Pakistan yesterday, the Lahore High Court ordered the Pakistan Railways to add extra cars to its trains to facilitate transportation for Sufis who want to attend the annual Urs (death anniversary) of the saint, Shahbaz Qalandar.  According to Pakistan's The News, in past years the railway ran 14 special trains for the celebration.  The railroad said that financial constraints led it to end the special trains this year.  The court issued its order after evidence was presented that the railroad had operated eight special trains for Sikh pilgrims during the last 6 months. The railroad insisted that most of those were arranged because of international commitments.

China Defends Its Religious Liberty Record In Tibet

The Information Office of China's State Council yesterday published a White Paper titled: Sixty Years Since the Peaceful Liberation of Tibet.  A section of the White Paper defends China's polices on religious freedom in Tibet.  It says in part:

Freedom of religious belief of all ethnic groups is respected and protected in Tibet. All religions, all religious sects are equal in Tibet. The Living Buddha reincarnation system, unique to Tibetan Buddhism, is fully respected. People are free to learn and debate Buddhist doctrines, get ordained as monks and practice Buddhist rites. Academic degrees in Buddhism are also promoted. The central government has listed some famous sites for religious activities as cultural relics units subject to state or autonomous regional protection, including the Potala Palace, Jokhang Monastery, and Tashilhunpo, Drepung, Sera and Sakya monasteries. Tibet now has more than 1,700 venues for religious activities and about 46,000 monks and nuns. Monks and laymen organize and take part in the Sakadawa Festival and other religious and traditional activities every year. More than 1 million worshipers make pilgrimage to Lhasa each year.

(See prior related posting.)

Restaurant Wins in Employee's Religious Accommodation Lawsuit

A jury in a Nueces County, Texas trial court yesterday ruled in favor of the restaurant chain, Texas Roadhouse, in a case in which a former employee charged religious discrimination.  According to a press release from defendant's attorneys, the employee claimed that management of the Corpus Christie (TX) Roadhouse forced him to work on Sundays in violation of his religious beliefs.  While the employee was given most Sundays off, he was required to work on Mothers Day and Fathers Day-- two of the restaurant's busiest days of the year.  He was fired for refusing to come in on Fathers Day 2008. Defendants claimed the employee abandoned his job and was not terminated.

Challenger Lacks Standing In Suit To Stop Ground Zero Mosque

The New York Times reports that a state trial court on Friday dismissed a lawsuit by a former fire fighter who is attempting to prevent the construction of an Islamic community center in lower Manhattan near "Ground Zero". (See prior posting.) Plaintiff Timothy Brown was attempting to overturn a decision by the New York City Landmark Preservation Commission that denied landmark status for the old Burlington Coat Factory building that will be destroyed to make space for the mosque and community center. The court concluded that Brown lacks standing to challenge the landmark decision despite his strong interest in the matter.

UPDATE: The full decision in Brown v. New York City Landmarks Preservation Commission, (NY Co. Sup. Ct., July 7, 2011) is now available online.

Sweden Refuses To Recognize Anti-Copyright Believers As A Religion

According to The Local, in Sweden last week the government's Legal, Financial and Administrative Services Agency rejected attempts of the Missionary Church of Kopimism (pronounced "copy me-ism") to register as a religious faith.  The church was started by the youth division of the Pirate Party, a political party founded in Sweden in 2006 to promote Internet file sharing and to protect people's online privacy. Kopimism contends that "the act of copying is sacred," opposing those who wish to enforce copyright restrictions.

What Will Be Religion-State Balance In New Egyptian Constitution?

Prof. Samer Soliman of the American University in Cairo yesterday published an article in Ahram Online analyzing the proposals of various groups involved in drafting a new Egyptian Constitution on what should be the relationship between religion and state in Egypt. He wrote in part:

Although many civic and human rights forces opposed Article 2 of the previous constitution (which states Islam is the religion of the state and Islamic Sharia the main source of legislation), because it discriminates against non-Muslims and is used by conservative powers to establish religious powers, various versions of the new constitution maintain this article in place. It seems that civic forces are now convinced that the large majority of Egyptian Muslims want this article to remain in place since it reflects the Islamic identity of the people.

This realistic acceptance of Article 2 of the previous constitution does not mean that the authors of the proposed constitutions are not trying to prevent this article from being used to establish a full-fledged religious state....

It is unlikely that Islamic forces will insist on creating an entity of religious scholars because it will be strongly opposed by the people, and it would be difficult to decide how to choose its members. It is more likely that Islamist forces will maintain Article 2 as it stands, but will reject clauses that give power to the army or judiciary to intervene to guarantee the civic character of the state. In such a case, we will return to where we were during the Mubarak era in terms of the relationship between state and religion, namely a quasi-civic state with religious overtones.

British Parliamentary Committee Hears From Faith Leaders On "Big Society" Program

A Select Committee in Britain's House of Commons is conducting hearings on the government's flagship "Big Society" initiative that is designed to create  a more socially active country in which citizens can  control functions and activities of local interest such as schools, pubs and community centers. (Issues and Questions Paper). There is now available on the House of Commons website a full transcript of the June 30 testimony on the relationship of the Big Society initiative and various faith groups.  Witnesses were Andrew Copson, British Humanist Association; Lord Jonathan Sacks, Britain's Chief Rabbi; Rt. Rev. Tim Stevens, Bishop of Leicester; and Charles Wookey, Assistant General Secretary of the Catholic Bishops' Conference of England and Wales.  The testimony was wide ranging.  For example, Bishop Stevens said:

I think we in the Churches need to be alert to the dangers and the possible devices that might be used to turn Churches into utilitarian deliverers of services, that we become, as it were, the means to a political end, whereas I think we see the pursuit of our religion as an end in itself-it has meaning in itself. Volunteering, serving others, reaching out to the poor, is not simply a device; it is the way in which human beings discover who we truly are. It is the means to human flourishing. That is what we want to hold as a vision before people and why we want to continue to participate in this conversation.

Recent Articles of Interest

From SSRN:

• Randy T, Simmons, Diana Weinert Thomas and Ryan Yonk, Bootleggers, Baptists, and Political Entrepreneurs: Key Players in the Rational Game and Morality Play of Regulatory Politics, (The Independent Review, Winter 2011).
• Steven Douglas Smith, The Constitution and the Goods of Religion, (San Diego Legal Studies Paper No. 10-059, 2011).
• Kang Chuen Tat Kang, Buddhist Legal Studies Experimentation for University-Approved Students and Professional Religious Organisations, (July 6, 2011).
• David M. Engel, 'The Spirits Were Always Watching': Buddhism, Secular Law, and Social Change in Thailand, Buffalo Legal Studies Research Paper Series No. 2012-01, (2011).
• Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, (Cardozo Law Review, Vol. 32, p. 1815, 2011).
• Lawrence Rosenthal, The Law Professor as Counterterrorist Tactician, (Texas Law Review, Vol. 89, No. 1, 2010).

From SmartCILP and elsewhere:

• Shulamit Almog and Lotem Perry-Hazan, The Ability to Claim and the Opportunity to Imagine: Rights Consciousness and the Education of Ultra-Orthodox Girls, 40 Journal of Law and Education 273-303 (2011).
• Todd A. DeMitchell, Immorality, Teacher Private Conduct, and Adverse Notoriety: A Needed Recalculation of Nexus?, 40 Journal of Law and Education 327-339 (2011).
• Symposium: Islamic Law and Constitutional Liberty. Introduction by Robert A. Kahn; opening address by Keith Ellison; keynote addresses by John R. Bowen and Noah Feldman; articles by Imam Feisal Abdul Rauf, L. Ali Khan, Faisal Kutty, Asma T. Uddin, Clark B. Lombardi, Haider Ala Hamoudi and Russell Powell. 7 University of St. Thomas Law Journal 403-726 (2010).
• The July-August 2011 issue of Liberty: A Magazine of Religious Freedom has recently been posted online.

India's Draft Animal Welfare Bill Changed To Exempt Religious Slaughtering

With significant attention around the word being given to proposed legislation in the Netherlands that would ban halal and kosher slaughter of meat (see prior posting), India has taken steps to avoid a similar controversy. The Hindustan Times yesterday reported that India's environment ministry has made changes to the original draft of its proposed Animal Welfare Act 2011 to assure that it will not ban slaughter of animals as carried out by Muslims (halal), Jews (kosher), Hindus and Sikhs (jhatka) in accordance with their religious traditions. The first draft provided that the cruelty provisions do not apply to:

the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind, unless ... accompanied by the infliction of unnecessary trauma, pain or suffering. (Sec. 17(3)(d)) [corrected quote]

When Muslim groups criticized this  draft of the bill, the ministry circulated a new draft which contains an explicit exemption providing:

Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.

Recent Prisoner Free Exercise Cases

In Boretsky v. Corzine, 2011 U.S. Dist. LEXIS 70654 (D NJ, June 30, 2011), a New Jersey federal district court rejected a Jewish inmate's free exercise and RLUIPA complaints that inmates in the Special Sentencing Unit could not join inmates elsewhere in the prison for religious services.

In Razzoli v. Executive Office United States Marshals, 2011 U.S. Dist. LEXIS 71271 (ED NY, June 30, 2011), a New York federal district court dismissed an inmate's claim that he was denied Catholic religious services while in special housing, because the same claim is pending in another lawsuit.

In Lamon v. Adams, 2011 U.S. Dist. LEXIS 71404 (ED CA, June 30, 2011), a California federal district court  dismissed an inmate's complaint that his kosher diet was revoked, finding that the reason for the prison's decision was that plaintiff assaulted correctional officers with his kosher meals.

In Hysell v. Schwarzenegger, 2011 U.S. Dist. LEXIS 72243 (ED CA, July 6, 2011), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's generalized claim that he is not being allowed to practice his chosen religion.

In Alamiin v. Beasley, 2011 U.S. Dist. LEXIS 72658 (WD OK, July 6, 2011), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 72738, June 13, 2011) and dismissed claims by a Muslim inmate that in 3 isolated instances he was forced to accept food that violated religious diet, and that he was not able to receive his breakfast tray early enough during Ramadan  during a 30-day stay in segregation.

In McMillan v. Terhune, 2011 U.S. Dist. LEXIS 73127 (CD CA, July 5, 2011), A California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 73125, March 30, 2011), and allowed an inmate to move ahead with a 1st Amendment Free Exercise claim that being confined to a bunk as a disciplinary measure precluded him from obtaining the meals he needed to fast during Ramadan. However the court dismissed plaintiff's RLUIPA claims.

European Court Dismisses Challenges To Switzerland's Minaret Ban

The European Court of Human Rights on Thursday dismissed two challenges to Switzerland's constitutional amendment that bans the building of minarets. (See prior posting.)  A press release on the cases described the court's reasoning in rejecting the petitions that claim the ban was in violation of Arts. 9 and 14 of the European Convention on Human Rights.  Art. 34 of the Convention allow challenges to be brought only by someone who is a "victim" of a violation of the Convention by one of the countries that is a party to it.  The court concluded that applicants here had not claimed that they planned to build a mosque with a minaret in the near future. The court's full opinions in La Ligue des Musulmans de Suisse v. ls Suisse and Ouardiri v.ls Suisse, (ECHR, June 28, 2011), are available in French. SwissInfo reported on the decisions.

House Amendments To Defense Bill Bar Using Military Facilities For Gay Marriages

On Thursday, the U.S. House of Representatives voted on a number of amendments to the 2012 Defense Appropriations Bill. The Daily Caller reports on one amendment, which passed 236-84, introduced by Rep. Tim Huelskamp of Kansas, that bars same-sex marriages being performed on military bases. The amendment provides: "None of the funds made available by this Act may be used to implement the curriculum of the Chaplain Corps Tier 1 DADT repeal training dated April 11, 2011."  From the Congressional Record, here is the explanation of the amendment by Rep. Huelskamp:

Earlier this year, the Navy chief of chaplains announced that military chaplains who desire to perform same-sex marriages would be allowed to do so following the repeal of the policy known as Don't Ask, Don't Tell. The directive said that chaplains could perform same-sex ceremonies in such States where such marriages and unions are legal. Apparently, the Navy has recently backed away from such instruction, but tepidly and weakly, and in a way that leaves the door open to the reinstatement of this policy.

This amendment I offer will prohibit the enforcement of the directive of allowing chaplains to perform same-sex marriages on Navy bases regardless of whatever a State's law is on gay marriage.

... As the Navy and other military branches prepare for the repeal of this 1993 law, hours upon hours of sensitivity training have been presented to men and women in uniform. Such instruction has included warning that the failure to embrace alternative lifestyles could result in penalties for serv ice mem bers.

What will happen to chaplains who decline to officiate over same-sex ceremonies? The directive states that chaplains ``may'' perform same-sex civil marriage ceremonies. I fear that chaplains who refuse to perform these ceremonies may find themselves under attack and their careers threatened.

Madam Chair, we must ensure the religious liberty of all military members, particularly that of chaplains. In my family, I've had a military chaplain who has served for more than approximately 4 decades, so this is particularly important to me, personally.

(See prior related posting.) The House on Thursday and Friday also passed two additional amendments to the Defense Appropriation Bill  (1, 2) that appear to achieve the same purpose. They prohibit use of any funds in contravention of the Defense of Marriage Act.