Catholic Hospitals Say Exemption For Mandated Contraceptive Coverage Is Too Narrow

As previously reported, last month the Departments of Treasury, Labor and HHS issued for comment interim final rules on preventive health care services for women. They include an exemption for "religious employers" from the requirement that insurance plans fully cover contraceptive services. However, according to Fox News yesterday, Catholic hospitals, among others, object that the exemption is too narrow.  Under the interim rules, a religious employer is defined as

an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in ... the Internal Revenue Code....

Sister Carol Keehan, president of the Catholic Health Association, calls this "the parish housekeeper exemption", because she says that is about all it covers.  The exemption is not broad enough to cover Catholic hospitals, most of which currently do not cover contraceptive services in the insurance plans they provide their employees. The Catholic Health Association supported President Obama's health care reform when it was working its way through Congress. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Scott Thomas Fitzgibbon, Parent, Child, Husband, Wife: When Recognition Fails, Tragedy Ensues, (Brigham Young University Journal of Public Law, Vol. 25, No. 2, 2011).
• Michale J. Klarman, David A. Skeel, and Carol S. Steiker, Introduction: Appreciating Bill Stuntz, (The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Cambridge University Press, 2012).
• David A. Skeel and Tremper Longman, The Mosaic Law in Christian Perspective, (U of Penn Law School, Public Law Research Paper No. 11-25, June 30, 2011).
• Patrick Parkinson, Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 281-299, 2011).
• Asma Uddin, The UN Defamation of Religions Resolution and Domestic Blasphemy Laws: Creating a Culture of Impunity, (July 14, 2011).

American Political Science Association 2011 Annual Meeting Papers on SSRN:

• Bo Rothstein and Rasmus Broms, Why No Democracy in the Arab Muslim-World? The Importance of Temple Financing.
• Juliana Horowitz and Neha Sahgal, Modernizers vs. Fundamentalists: How Religion, Politics and Economics Shape Attitudes in the Muslim World.
• Virgil Stanford and Elizabeth Brewer, Dominion or Stewardship: Understanding the Role of Religiosity in Forming Attitudes about the Environment through Pathway Analysis.
• Christian Bjørnskov and Niclas Berggren, Does Religiosity Promote or Discourage Property Rights and the Rule of Law?.
• Geoffrey A. Evans and Ksenia Mankowska, Belonging But Not Believing (Strongly): Examining the Political Implications of the Resurgence of Orthodoxy in Post-Soviet Russia.

From SmartCILP:

• Mala Htun and S. Laurel Weldon, State Power, Religion, and Women's Rights: A Comparative Analysis of Family Law, [Abstract], 18 Indiana Journal of Global Legal Studies 145-165 (2011).

Kansas High Court Rules On Relevance of Parent's Religion In Custody Determination

In Harrison v. Tauheed, (KA Sup. Ct., Aug. 5, 2011), the Kansas Supreme Court affirmed a trial judge's decision to award custody of a 5-year old boy to the child's mother, a Jehovah's Witness, over the objections of the child's father who also sought custody. The father argued on appeal that the trial court erred in refusing to consider the negative impact on the boy of his mother's religious beliefs and practices. The Supreme Court held:

Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law....

Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future.... A court also may not weigh the merit of one parent's religious belief or lack of belief against the other's. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion... Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child....

The court concluded that the trial judge's decision met this standard.

Closed Questioning In Voir Dire of Potential Juror Who Objected To Oath Leads To Reversal of Conviction

In State of Washington v. Abbey, (WA App., Aug. 5, 2011), a Washington state appeals court reversed and remanded for a new trial the voyeurism conviction, and unusual 60-month sentence (because of past convictions for attempted voyeurism), of a defendant who was charged with looking into a bathroom window as a woman was getting out of the shower.  The reversal was based on the manner in which the court questioned a juror who, because of religious objections, failed to take the juror's oath during voir dire.  The judge questioned the juror (with both counsel present) in the hallway outside of the court room instead of in open court. The juror told the judge that it is against his religious beliefs to judge a fellow human being. The court held that defendant's right to a public trial was violated when the judge excluded the public from this questioning of the juror without first conducting a hearing to determine whether the courtroom should be closed to the public. The court said:

Here, what began as a ministerial matter, i.e., finding out why the juror refused to stand and take the oath, soon evolved into a discussion highly relevant to whether the State or defendant felt that the juror should serve, such that the State even suggested removing the juror for cause. What transpired was an investigation into the juror’s ability to serve, a matter neither ministerial nor trivial, and how his religious beliefs interfered with his ability to pass judgment or render a verdict.

Judge Quinn-Brintnall concurred on the ground that the defendant was excluded from the hallway questioning. Only his counsel was present.

San Francisco Moves To Require More Disclosure By Crisis Pregnancy Centers

In a press release last week, San Francisco City Attorney Dennis Herrara and Board of Supervisors member Malia Cohen announced joint legal and legislative steps against misleading advertising by crisis pregnancy centers.  On Aug. 2, Cohen introduced the “Pregnancy Information Disclosure and Protection Ordinance", the full text of which is included in the press release.  The proposed law bars dissemination of untrue or misleading statements concerning services offered at such centers.  At the same time, Herrara sent a letter to First Resort, Inc. demanding that it change its website to eliminate language that falsely suggests that it offers, or make referrals for, abortion services. The organization has purchased a paid Google search link, that causes its website to appear near the top of the search results for "abortion in San Francisco." The full text of the demand letter is also included with the press release. Catholic News Service reports on these developments. [Thanks to Isaiah Sage for the lead.]

Recent Prisoner Free Exercise Cases

In Riley v. Beard, 2011 U.S. Dist. LEXIS 83445 (MD PA, July 29, 2011), a Pennsylvania federal district court rejected prison officials' motion for reconsideration and permitted a Muslim inmate to proceed with his claims that his rights were violated when dates he used to break the Ramadan fast were confiscated from his cell.

In Lacey v. Braxton, 2011 U.S. Dist. LEXIS 84313 (WD VA, Aug. 1, 2011), a Virginia federal district court dismissed claims by an inmate who was a member of the House of Yahweh that his religious books and his tallit were wrongfully confiscated.

In Shepherd v. Fisher, 2011 U.S. Dist. LEXIS 84110 (SD NY, July 27, 2011), a New York federal district court refused to permit a Rastafarian prisoner to amend his complaint to charge the deputy superintendent with denying him specially requested religious meals on holy days.

In Henry v. Schriro, 2011 U.S. Dist. LEXIS 84883 (SD NY, Aug. 2, 2011), a New York federal district court dismissed a Jewish inmate's claim for $9.999 billion in damages for denial of his request for matzoh and grape juice.

In Cardew v. Bellnier, 2011 U.S. Dist. LEXIS 84949 (ND NY, Aug. 2, 2011), a New York federal district court adopted a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 143515, Dec. 9, 2010) and dismissed inmates' challenge to prison rules that called for consideration of ethnic and religious backgrounds in determining double celling assignments. The court also dismissed plaintiffs' claims that authorities violated their 1st Amendment rights and rights under RLUIPA by serving all inmates meals without red meat on Ash Wednesday and Fridays during Lent.

In Florez v. McCormac, 2011 U.S. Dist. LEXIS 85214 (D CO, Aug. 3, 2011), a Colorado federal district court dismissed on statute of limitations grounds an inmate's complaint that his Bible was confiscated and destroyed and he was unable to obtain a replacement Bible for 138 days.  The court rejected the argument that the the limitations period had not run because this was a "continuing violation" of plaintiff's rights.

In Fricks v. Upton, 2011 U.S. Dist. LEXIS 81373 (MD GA, July 26, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85071, April 14, 2011) and permitted an inmate to move ahead with his claim that his free exercise rights were infringed, though the magistrate judge expressed doubt that plaintiff's Church of Creativity qualifies as a religion.

In Grumbley v. Michigan, 2011 U.S. Dist. LEXIS 85940 (WD MI, Aug. 4, 2011), a Michigan federal district court dismissed a Jewish inmate's complaint that his rights were violated when prison authorities would allow him to use a prayer shawl purchased with prison funds only if it was marked as prison property.

In Jernigan v. Atkins, 2011 U.S. Dist. LEXIS 85773 (ND FL, Aug. 4, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85879, June 30, 2011) and permitted a Muslim inmate to proceed against certain defendants with his claim that he was denied adequate food at times that would permit him to observe the Ramadan fast.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 86345 (ED AR, Aug. 4, 2011), an Arkansas federal district court adopted a portion of a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 86383, July 8, 2011), and dismissed an inmate's free exercise complaint, holding that occasional failure to provide plaintiff with a completely meatless meal did not substantially burden the practice of his religious beliefs.

In Romero v. Lappin, 2011 U.S. Dist. LEXIS 86435 (ED KY, Aug. 4, 2011), a Kentucky federal district court held that guards at a federal prison were protected by qualified immunity in both constitutional and RFRA damage claims alleging that they violated the religious rights of a Native American prisoner by removing a length of green string from his prayer feather.

Cuba's Raul Castro Says Government Should Welcome Religious Believers

Cuba's president, Raul Castro, gave a speech (full text) to Cuba's Parliament (Legislature of the National Assembly of People's Power) on Monday, reviewing economic and other developments in recent months.  A lengthy section of his speech was captioned: "A Painful Indictment Caused by Errors in the Implementation of the Cadre Policy and Attitudes Toward Religion." Castro described at length the demotion of a government employee who "became the victim of the dominant mentality at distinct levels of the Party and state, because of professing religious beliefs and on occasions, attending services at the church in her locality."  Saying he wished to "repair this injustice," he spoke at length about the need to respect those who hold religious beliefs:

Many years ago our Revolution overcame the scenes of confrontation with some of the religious institutions, a stage during which both parties committed excesses of greater or lesser magnitude. We are also aware of the enemy’s aspirations to foment confrontation and distrust between believers and the revolutionary process, calculations which have proved themselves erroneous because, from the outset, the vast majority of Cubans from modest backgrounds with religious beliefs supported the Revolution.

To anyone who is in any doubt about that, I would recommend that they read the Bush (Junior) Plan for transition in Cuba, which we know has not been abolished, and the role to be allocated to all the religious organizations in its subversive strategy against our country and which, despite the failure reaped, we know that these intentions have not been renounced....

...[A]ttitudes like those criticized here endanger our principal weapon for consolidating independence and national sovereignty; in other words, the unity of the nation.

Peoples World yesterday reported on Castro's speech.

Ft. Bragg Will Now Host "Rock Beyond Belief"

After being cancelled earlier this year (see prior posting), it now appears that "Rock Beyond Belief"-- a program sponsored by a group of atheists and secular humanists-- will be held next March at the U.S. Army base in Ft. Bragg, North Carolina.  According to RNS yesterday, the decision comes after complaints over funding given by the Army for the "Rock the Fort" concert held at the base last year under the auspices of the Billy Graham Evangelistic Association. The Rock Beyond Belief program-- that will now receive similar support-- will feature music and speakers, including well-known atheist author Richard Dawkins.  Ed Brayton, who blogs at Dispatches from the Culture Wars, says that he will emcee the event. [Thanks to Scott Mange for the lead.]

Gov. Perry's Prayer Rally Held In Houston Today

In Houston today, the controversial Christian prayer rally initiated by Texas Gov. Rick Perry (see prior posting) was held in Reliant Stadium. The Los Angeles Times reports that while Perry invited governors of every other state to attend the rally (billed as "The Response: A Call To Prayer for a Nation in Crisis"), only Kansas Gov. Sam Brownback accepted the invitation.  The event was financed by the American Family Association.  Gov. Perry read several Bible verses, and told the audience of over 30,000: "Like all of you, I love this country deeply. Indeed, the only thing you love more is the living Christ." According to the rally's official website, Perry also delivered a prayer, which reads in part:

Father, our heart breaks for America. We see discord at home. We see fear in the marketplace. We see anger in the halls of government. And as a nation we have forgotten Who made us, Who protects us, Who blesses us, and for that we cry out for Your forgiveness.

We pray for our nation’s leaders, Lord -- for parents, for pastors, for the generals, for governors -- that You would inspire them in these difficult times. Father, we pray for our president, that You would impart Your wisdom upon him, that You would guard his family. We pray for our military and the families who love them. Father, especially for those special operators who lost their life yesterday in defending our freedoms.

3rd Circuit: School Board Prayer Governed By School Prayer Tests, Not By Test For Legislative Invocations

In Doe v. Indian River School District, (3d Cir., Aug. 5, 2011), the U.S. 3rd Circuit Court of Appeals held that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events (Lee v. Weisman) , not the test for when invocations are permitted in legislative bodies  (Marsh v. Chambers). The Indian River, Delaware, school board routinely opened its meetings with a prayer offered by one of the board members, on a rotating basis. The prayers that were delivered were almost always Christian in their orientation. The court held that since students almost always attend Board meetings, either to receive awards or as part of their extracurricular activities or to comment on school policies, these meetings are analogous to graduation ceremonies which, while not technically mandatory, nevertheless result in students feeling coerced into participating in religious exercises. The court then found that the Board's prayer policy has the primary effect of advancing religion and involves excessive entanglement of government with religion. Board members are government actors composing and delivering prayers.  The Wilmington News Journal reports on the decision. (See prior related posting.)

President Takes Steps To Counter Future Mass Atrocities and Genocides

The White House yesterday announced two major steps taken by President Obama designed to help prevent mass atrocities and prevent the United States from becoming a haven for serious human rights violators.  Obama issued a Presidential Study Directive on Mass Atrocities (full text) creating an Interagency Atrocities Prevention Board and ordering an interagency study on implementing the new Board's role.  The memorandum explains the goal of the new arrangements:

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed. By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing. The actions that can be taken are many they range from economic to diplomatic interventions, and from non combat military actions to outright intervention. But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide. This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

Obama also issued a Presidential Proclamation (full text) barring (with exceptions for foreign policy reasons) entry into the United States of:

(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.

(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.

Priest Abuse Plaintiffs In Delaware Settle With Religious Order

In Delaware yesterday, plaintiffs in numerous priest sexual abuse lawsuits agreed to a settlement with the Oblates of St. Francis Desales.  According to WDEL News, the Catholic religious order will pay $24.8 million to 39 plaintiffs. This comes a week after a federal bankruptcy court confirmed a bankruptcy plan of reorganization of the Diocese of Wilmington. (See prior posting.) Earlier this year, the Delaware Supreme Court rejected a challenge by the Oblates of St. Francis Desales to the state law that created a 2-year window for filing of sex abuse claims that were previously barred by the statute of limitations. (See prior posting.)

Jeffs Convicted On 2 Counts of Sexual Assault of Child

According to CNN, a jury in San Angelo, Texas yesterday found FLDS leader Warren Jeffs guilty on two counts of sexual assault of a child.  The victims were 12 and 14 year old girls who were Jeffs' "spiritual wives".  The jury deliberated for less than 4 hours in reaching its verdict, after a trial in which Jeffs represented himself and invoked religious freedom as a defense. A second phase of the trial which began yesterday evening will determine Jeffs' sentence, which could be as much as life in prison. The Salt Lake Tribune reports that yesterday also the Principle Rights Coalition-- representing 5 polygamous churches-- denounced Jeffs' child abuse (full text of statement), saying in part:

As new evidence has surfaced in Texas detailing reprehensible acts of sexual abuse against children as young as twelve years old, we are alarmed that such depravity could have been perpetrated by anyone... We repudiate and denounce Warren Jeffs’ inappropriate actions in linking his despicable and unconscionable acts to the Gospel of Jesus Christ and to Joseph Smith Jr. and Mormonism.

6th Circuit Refuses Modification of 16 Year Old Church Zoning Consent Decree

In Northridge Church v. Charter Township of Plymouth, (6th Cir., July 28, 2011), the U.S. 6th Circuit Court of Appeals refused to set aside or modify a consent judgment that had been entered 16 years earlier in a case involving an attempt by a large congregation to obtain zoning approval for construction of a church building and related recreational facilities. Among the restrictions set out in the consent decree were limitation of the church's total auditorium seating to no more than 3,500 and no more than 1,167 parking spaces. At the time of the consent decree, average Sunday church attendance was 1,100. It has now grown to 14,000-- requiring multiple weekly services and costly shuttle buses. The court rejected the church's argument that the enactment of RLUIPA 5 years after the entry of the consent decree voided the judgment. The court also concluded that RLUIPA did not create sufficient changed legal circumstances to justify a modification of the decree since at the time of the decree RFRA was in effect and had not yet been invalidated in its application to states. Finally the court concluded that there had not been a sufficient change in factual circumstances to find that the district court had abused its discretion in refusing to modify the consent judgment. [Thanks to Brian D. Wassom for the lead.]

White House Releases New Plan For Supporting Local Efforts Against Violent Extremism

The White House yesterday released the President's plan for Empowering Local Partners to Prevent Violent Extremism in the United States (full text). The report sets out a community-based approach that includes greater support and information sharing with local officials.  In his introduction to the report, President Obama says:

As we approach the 10th anniversary of the September 11 attacks, we remember that al-Qa'ida tried to spark a conflict between faiths and divide us as Americans. But they failed.

Addressing the threat of extremist propaganda, the report says:

we must counter al-Qa’ida’s propaganda that the United States is somehow at war with Islam.... Al-Qa’ida and its supporters spread messages of hate, twist facts, and distort religious principles to weave together a false narrative that Muslims must attack Americans everywhere because the United States is waging a global war against Islam. While al-Qa’ida claims to be the vanguard of Islam, the overwhelming majority of its victims are Muslim.

We will challenge this propaganda through our words and deeds, defined by the very ideals of who we are as Americans. As the President has stated repeatedly, the United States is not, and never will be, at war with Islam. Islam is part of America, a country that cherishes the active participation of all its citizens, regardless of background and belief. We live what al-Qa’ida violently rejects—religious freedom and pluralism.... 

The report also emphasizes that : "Strong religious beliefs should never be confused with violent extremism."

U.S. House Files Memo In Court Supporting DOMA

As previously reported, after the Obama administration announced that it would no longer defend the constitutionality of the federal Defense of Marriage Act, the U.S. House of Representatives decided to defend the constitutionality of the statute.  New York Law Journal reports that on Monday, lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a memorandum of law (full text) in one of the cases in which the House is defending DOMA.  The case is Windsor v. United States, (SD NY), in which the surviving spouse of a same-sex marriage performed in Canada is seeking to have her marriage recognized for federal estate tax purposes. The memo argues that the court should apply merely rational basis review in assessing the challenge to DOMA, and that the courts should leave any redefinition of marriage to the democratic process. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Tennessee City's Resolution Supporting Israel Criticized For Religious References

The Mt. Juliet, Tennessee City Commission at its July 25 meeting passed, by a 4-1 vote, a resolution (full text Word.doc) supporting the nation of Israel.  The Tennessean, however, reports that one person at the meeting objected on First Amendment grounds to one of the eight "Whereas" clauses with which the resolution begins.  That clause reads: "WHEREAS, the Lord of Abraham, Isaac, and Jacob promises in Genesis 12:3 to bless those that bless Israel: 'I will bless them that bless thee, and curse him that curseth thee: and in thee shall all families of the earth be blessed.'" The vice-mayor said he saw nothing in the resolution that established a state-run church.

Court Upholds Constitutionality of New York's Kosher Law Protection Act

In Commack Self-Service Kosher Meats, Inc. v. Hooker, (ED NY, Aug. 3, 2011), a New York federal district court upheld the constitutionality of New York's 2004 Kosher Law Protection Act (Agr. and Mkts. L. Sec. 201-A to 201-D).  The law was passed after an earlier version was declared unconstitutional.  Under the 2004 law, producers, sellers and certifiers of kosher food are required to file various disclosures with the state identifying the qualifications of certifiers of food being sold as kosher. This information is made available in an online registry for consumers. The court rejected an Establishment Clause challenge, finding that the state had a secular purpose in enacting the law and that the law does not favor one religious group over another. The court said:

The State cannot define what is and is not kosher because that is a matter of religious law. But the state is entitled to protect all purchasers of food represented to be kosher, whatever their religion, from fraud....

In contrast to the previously challenged statutes, which constituted the advancement of Orthodox Judaism because they defined "kosher" as meeting "orthodox Hebrew religious requirements," the current version of the Act is purely a labeling and disclosure law.

The court also rejected claims of excessive entanglement of religion and state.  Plaintiff argued that "there is entanglement between the Orthodox religious community and the State's political elite."  But the court said that  prohibited entanglement is only present when the government is being charged with enforcing a set of religious laws. Additionally, court also rejected plaintiffs' free exercise claims, finding that the law does not restrict any religious practice, nor does it require the use of any particular symbol to identify food as kosher. Reuters reports on the decision.

Justice Department Settles With California City In RLUIPA Zoning Case

The Department of Justice announced yesterday that it has entered a settlement agreement with the city of Walnut, California in a lawsuit claiming the city violated the Religious Land Use and Institutionalized Persons Act when, in 2008, it denied a conditional use permit to the Chung Tai Zen Center that wanted to build a temple on land it owned.  The denial led the Zen Center to move to another facility in Pamona.  Under the agreement, which must still received court approval, the city, in the future, will not impose differential zoning or building requirements on houses of worship. It will clarify the zoning appeals process for houses of worship. Also various city officials and employees will receive RLUIPA training. (See prior related posting.)

Utah Court Orders State AG To Advance Fees To Fiduciary In United Effort Plan Trust Case

The complex Utah state court litigation to reform the FLDS United Effort Plan Trust has gotten even more complex.  According to the Salt Lake Tribune, State 3rd District Court Judge Denise Lindberg on Monday ordered the Utah Attorney General's Office to advance $4.7 million to court-appointed special fiduciary Bruce Wisan for unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. (See prior related posting.) The order contemplates that the Trust will eventually reimburse the state for the fees. The costs at issue were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property. However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. Utah Attorney General is considering an appeal of the decision that he calls "strange and surprising" and which he says contains personal and biased misstatements.

Israel To Use More Secular Version of Memorial Prayer At Military Ceremonies

Haaretz today reports on the latest volley in the battle between religious and secular Jews in Israel over the text used at the official military ceremonies remembering fallen soldiers, including the state ceremony each year at the end of Memorial Day and the beginning of Israel Independence Day. In 1920, a prayer written by Berl Katznelson after the battle of Tel Hai, became the memorial prayer used. It began "May the people of Israel remember" (Yizkor Am Yisrael).  In 1963, the Israel Defense Forces officially changed the prayer to begin "May God Remember" (Yizkor Elohim), which is the text of the traditional memorial prayer in Jewish religious ceremonies. However, that change was not enforced until two year ago when military rabbis pushed for the modified version. Two months ago, the IDF told a journalist that Yizkor Elohim is the official version. That in turn generated protests from many secular parents of deceased soldiers, and the IDF appointed a special committee to study the matter.  Now the Ministerial Committee on Ceremonies and Symbols says the prayer will return to its original version (Yizkor Am Yisrael) at ceremonies.

9th Circuit: University Rule On Student Groups Upheld On Its Face, But Remanded On Discriminatory Application Claim

In Alpha Delta Chi-Delta Chapter v. Reed, (9th Cir., Aug. 2, 2011), the U.S. 9th Circuit Court of Appeals upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that "restricts membership or eligibility to hold appointed or elected student officer positions ...  on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition." However, the court concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limited their membership. Judge Ripple concurred on the ground that the University's policy marginalizes religiously based groups because their members' shared beliefs coincide with their shared status as members of a religion. Courthouse News Service reports on the decision.

House Homeland Security Committee Holds Hearing On Al Shabaab's Activities In US

Largely lost in last week's focus on Congress' debt ceiling debate was the hearing held on last Wednesday by Peter King's House Homeland Security Committee on Al Shabaab: Recruitment and Radicalization within the Muslim American Community and the Threat to the Homeland. (Links to full texts of hearing testimony.)  In opening the hearing, Rep. King said:

At this hearing, the third in a series, we will examine Somalia-based terrorist organization al Shabaab’s ongoing recruitment, radicalization, and training of young Muslim-Americans and al Shabaab’s linking up with al-Qaeda in the Arabian Peninsula (AQAP).

In connection with the hearing, King released and investigative report (full text) on al Shabaab.

Faith-Based Director Follows Up Obama's Statements On Hiring By Grantees

Last month, President Obama at a University of Maryland town hall meeting endorsed the status quo as to faith-based hiring by religious organizations receiving federal grant monies. (See prior posting.) Groups such as the Interfaith Alliance and the Secular Coalition for America criticized Obama's statement, urging a policy of non-discrimination in hiring by all faith-based grantees. (Huffington Post.) On Monday, Joshua DuBois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships, posted a statement on the White House website that was apparently intended to be a response to these criticisms. The statement reads in part:

There has been some talk lately about the Administration’s commitment to the separation of church and state. President Obama strongly believes that while faith-based organizations play an integral role in providing social services, their interactions with government must be grounded in sound law and policy, and must respect the Constitution....

We established an Advisory Council on Faith-based and Neighborhood Partnerships and charged a taskforce of church/state experts with addressing key issues related to faith-based partnerships with government....

The bottom line is this: while critical issues remain, President Obama and we in the Office of Faith-based and Neighborhood Partnerships are committed to ensuring that we lead with our values: of constitutional separation of church and state, respect for faith-based and secular service providers alike, and commitment to doing the most good for individuals and families in need.

Women's Group in Lebanon Rejects Muslim Opposition To Family Violence Bil

Lebanon's Daily Star today reports that the Lebanese Women's Council has issued a statement supporting a proposed law to protect women from domestic violence.  The statement comes after both Dar-al Fatwa, the country's highest Sunni organization, and the Higher Shiite Council came out in oposition to the bill that was approved by the Cabinet and sent to Parliament in April 2010. Dar-al-Fatwa claimed that the proposed law is a Western idea designed to destroy the Muslim family. It is also concerned that the law undermines the role of religious courts.

Federal Government Asserts State Secrets Privilege In Mosque Surveillance Lawsuit

AP reported yesterday that the federal government has taken the unusual step of asserting the state secrets privilege in a motion to dismiss most of a lawsuit filed in federal district court in southern California against the FBI over its use of informants to infiltrate mosques. The lawsuit, filed by the ACLU of Southern California and CAIR alleged that targeting Muslim Americans amounts to religious discrimination and asked for the FBI to turn over or destroy all information gathered through the investigation.It also sought damages for emotional distress for three named plaintiffs. (See prior posting.) The motion filed Monday by Attorney General Eric Holder asserts that it could cause significant harm to national security if the government is required to disclose the subjects of a 2006 mosque-surveillance operation, disclose why it was undertaken and describe how the monitoring was carried out.

Religious Employer Exception Added To Required Women's Preventive Care Coverage

A memo from McDermott, Will and Emery reports that the recently issued federal guidelines on preventive health care services for women have been amended to provide an exemption for religious employers.  The guidelines under the Affordable Care Act require that various preventive services for women be covered fully, without co-payment, co-insurance or deductibles. Among the covered items are contraceptive services. However, pursuant to new authority granted to it in a release from the Department of Labor, Treasury and HHS issued on July 28 (full text), the Health Resources and Services Administration has exempted various religious employers from the required contraceptive coverage. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The Heritage Foundation (Aug. 2) claims that the definition of religious employer in the new exemption is too narrow.

Mexico Electoral Commission Orders Fines Against Catholic Archdiocese

Time reported yesterday on a decision handed down last month by Mexico's Federal Electoral Institute (IFE).  It ordered the country's Interior Minister to impose substantial fines on Mexico City's Catholic archdiocese and its spokesman Rev. Hugo Valdemar for violating provisions of the Religious Associations Law that ban religious organizations from publicly endorsing or opposing political candidates.  Earlier this year, the archdiocese urged voters to not vote for political parties that support legalized abortion or gay marriage.

Australian State Charges Worldwide Jehovah's Witness Organizations Under Working With Children Act

JW News reported last week that the Australian state of Victoria has filed criminal charges against the entire worldwide corporate and religious hierarchy of the Jehovah's Witness church, claiming failure to comply with Victoria's Working With Children Act 2005. The Act requires a Working With Children Check on individuals who are engaged in child-related work. It is claimed that The Governing Body of Jehovah’s Witnesses and the Watch Tower Society were notified of their obligation to comply with the law and were offered assistance in doing so, but they refused. Five separate Jehovah's Witness organizations were each charged with 7 criminal violations. Each charge carries a fine of up to AUS$144,000 ($157,766 US).

Alabama Clergy Sue Claiming Immigration Law Infringes Churches' Free Exercise Rights

WSFA reports that a federal lawsuit challenging Alabama's new immigration law was filed yesterday by leaders of the Episcopal, Methodist and Roman Catholic churches in the state.  The suit claims that the law (full text) which goes into effect in September infringes plaintiffs' right to the free exercise of religion by barring members of faith communities from carrying out their social ministries to help aliens obtain food, clothing, shelter and worship.  Sec. 13 of the statute prohibits any person, among other things, from encouraging an alien to reside in the state in reckless disregard of the fact that the alien's presence will be in violation of federal law.

Jeffs Seeks Judge's Recusal Based on Revelation From God

In San Angelo, Texas, the sexual assault trial of FLDS leader Warren Jeffs continues.  Yesterday, for the third time, Jeffs attempted to disqualify Judge Barbara Walther.  As reported by the Deseret News, this time Jeffs based his motion on what he said was a revelation from the Lord on Sunday.  Addressing himself directly to the judge, Jeffs said: "I, your lord, say to you, I shall bring to light your evil intent now, before all people, to destroy my Church on earth."  Jeffs' recusal motion contained an appendix containing what he said were revelations to the 19th century Mormon leader Joseph Smith and 29 Orders from the Lord.

Obama Sends Ramadan Greetings To Muslims Around the World

The White House issued a statement (full text) today from President Obama sending his and Michelle Obama's best wishes to Muslim communities in the United States and around the world as Ramadan begins. The statement reads, in part:

For so many Muslims around the world, Ramadan is also a time of deep reflection and sacrifice. As in other faiths, fasting is used to increase spirituality, discipline, and consciousness of God's mercy. It is also a reminder of the importance of reaching out to those less fortunate. The heartbreaking accounts of lost lives and the images of families and children in Somalia and the Horn of Africa struggling to survive remind us of our common humanity and compel us to act. Now is the time for nations and peoples to come together to avert an even worse catastrophe by offering support and assistance to on-going relief efforts.

In the statement, the President also said he is looking forward to again this year hosting an Iftar dinner at the White House.

Ramadan Begins Today

Ramadan begins today. The Wall Street Journal reports on the special difficulties for Muslims when the fasting period comes during long summer days as it does this year. Various government leaders around the world have issued greetings to Muslims for Ramadan, including Australia's Foreign Minister Kevin Rudd (AP of Pakistan), Israel's Prime Minister Benjamin Netanyahu (Arutz Sheva), and rulers of the United Arab Emirates (Gulf News).

Egyptian Rally Presses For Islamic Law In New Constitution

The Wall Street Journal over the week end reported on Friday's rally in Cairo, Egypt by tens of thousands seeking the establishment of Islamic law in the country. Islamists are concerned over last week's supra-constitutional principles issued by the National Council as guidance for a constitutional congress that will be appointed by Parliament in November, after elections.  The principles are designed to assure that Egypt's new constitution will protect individual rights, particularly for women and religious minorities; and that the constitutional congress will include a cross-section political interests, including legal experts, so that Islamists do not dominate it.

Recent Articles of Interest

From SSRN:

• Gerard V. Bradley, We Hold These Truths and the Problem of Public Morality, (Catholic Social Science Review, Vol. 16, pp. 123-132, 2011).
• Luke Beck, The Constitutional Prohibition on Religious Tests, (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2011).
• Michael Watson, Church Property and Disaffiliation Litigation - The Constitutional Dimension, (July 23, 2011).
• Pedro C. Magalhães, Explaining the Constitutionalisation of Social Rights: Portuguese Hypotheses and a Crossnational Test, (December 30, 2010).
• Julia Yael Alfandari, Joanna Dawn Baker, and Regula Amnah Atteya, Defamation of Religions: International Developments and Challenges on the Ground: SOAS International Human Rights Clinic Project, (SOAS School of Law Research Paper No. 09/2011).
• Vinicius Marinho, Constitutional Prophecy, (July 26, 2011).
• Bernard M. Levinson, Esarhaddon’s Succession Treaty as the Source for the Canon Formula in Deuteronomy 13:1, Journal of the American Oriental Society, Vol. 130, No. 3, pp. 337-347, 2010).
• Daniel Ungar, Copyright Enforcement by Praise and Curse: The Colourful Development of Jewish Intellectual Property, (March 1, 2011).
• Lynn D. Wardle, Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion, Life and Learning XVIII, (Proceedings of the Eighteenth University Faculty for Life Conference at Marquette University 2008, Joseph W. Koterski, S.J., ed., University Faculty for Life, 2011).
• Michael Heise and Gregory C. Sisk, Religion, Schools, and Judicial Decision Making: An Empirical Perspective, (July 29, 2011).
• Lynn D. Wardle, Protection of Healthcare Providers’ Rights of Conscience in American Law: Present, Past, and Future, (Ave Maria Law Review, Vol. 9, No. 1, 2010).
• Richard W. Garnett, “Things That are Not Caesar’s”: The Story of Kedroff v. St. Nicholas Cathedral, (First Amendment Stories, Richard W. Garnett, Andrew Koppelman, eds., Foundation Press 2011).

From SmartCILP:

• William N. Eskridge, Jr., Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct To Resist Antidiscrimination Norms, [Abstract], 45 Georgia Law Review 657-720 (2011).
• Catherine M.A. McCauliff, Jacques Maritan's Embrace of Religious Pluralism and the Declaration on Religious Freedom, 41 Seton Hall Law Review 593-624 (2011).
• Richard H. Weisberg, Compromise and Constitutionalism: Levinson is to Mr. Justice "Isaiah" as St. Paul Was To the Prophet Isaiah, [Abstract] 38 Pepperdine Law Review 925-935 (2011).
• Fournier, Pascal and Anna Dekker. Book review. (Reviewing Legal Practice and Cultural Diversity, edited by Ralph Grillo, et al.) 19 American University Journal of Gender, Social Policy and the Law 755-764 (2011).
• Thomas J. Molony, Charity, Truth, and Corporate Governance, 56 Loyola Law Review 825-868 (2010).
• Dian Abdul Hamed Shah and Mohd Azizuddin Mohd Sani, Freedom of Religion in Malaysia: A Tangled Web of Legal, Political, and Social Issues, 36 North Carolina Journal of International and Commercial Regulation 647-688 (2011).
• Olivia St. Clair, Building Backwards: Helping Heal Iraq Through Women's Rights, 19 Texas Journal of Women and Law 81-98 (2010).

Air Force Uses Christian Just War Theory As Part of Ethics Training

Controversial reporter Jason Leopold in a posting Wednesday on Truthout  says that U.S. Air Force training for missile officers includes a mandatory session led by chaplains discussing St. Augustine's Just War Theory.  He links to an extensive Power Point presentation  that includes slides asking "Can a person of faith fight in a war?" and "Can war be just?"  Those questions are answered in part with Biblical references. Mikey Weinstein, president of the Military Religious Freedom Foundation, says he has been contacted by Air Force officers who want to have the Christian themes removed from the nuclear weapons ethics training course.

UPDATE: Truthout reported yesterday the Air Force has announced that the Nuclear Ethics and Nuclear Warfare module has been removed from the training curriculum after the publication of Truthout's earlier report on it.

Chapter 11 Plan For Wilmington Diocese Confirmed By Delaware Bankruptcy Court

On July 28, the federal bankruptcy court for the District of Delaware issued an order confirming the Chapter 11 Plan of Reorganization for the Catholic Diocese of Wilmington. The full text of the Plan of Reorganization, Disclosure Statement, the court's finding and confirmation order, and related documents are available online on the Case Administration Website.  Delmarva Now reports that:

Claims related to the religious orders are not part of the diocese plan, but the diocese and all of the parishes named as defendants in the suits will be free of any further litigation when the negotiated releases are signed and payments to survivors made....

Among the nonmonetary terms of the plan are requirements that the diocese release church files on abuser priests and agree to adopt policies and procedures to prevent abuse in the future.... Under the terms of the plan, the diocese will draw on funds from insurance policies, the Catholic Foundation and other non-diocesan Catholic entities to cover the claims. It also has agreed to pump millions of dollars into its underfunded pension plan for lay employees, a situation revealed when the diocese was forced to open its books to the court.

Nine priests and former priests will be excluded from pension and benefit provisions they might have received from the diocese.

The diocese's Bishop W. Francis Malooly issued a statement on Thursday welcoming the court's move. He said in part:

It is my hope and prayer that this plan will give survivors of clergy sexual abuse another means toward the healing that they so need and deserve, and enable us to live up to our commitments to our lay employees and creditors.

Contemplative Community Is Not Use For "Religious Assembly" Under Zoning Law

In Jennings v. Zoning Board of Adjustment of City of Pittsburgh, (PA Commonwlth. Ct., July 28, 2011), a Pennsylvania appellate court upheld a finding by Pittsburgh's Zoning Board of Adjustment that proposed use of a property for a contemplative community in a communal group living arrangement should be classified as a "multi-suite residential" use and not use for "religious assembly."  The only religious component would be communal prayer sessions for the residents held within the house for approximately 15-20 minutes, twice each day, and possibly weekly spiritual training by the program manager. There would be no designated area for prayer and no public worship on the premises.

Recent Prisoner Free Exercise Cases

In Boone v. Morgan, 2011 U.S. Dist. LEXIS 81542 (D MD, July 26, 2011), a Maryland federal district court rejected a Muslim inmate's complaint that his rights were infringed by prison policy that allowed inmates in disciplinary segregation to wear Kufis made of solid material, but not knit kufis, and which barred prayer rugs in disciplinary segregation.

In Epps v. Grannis, 2011 U.S. Dist. LEXIS 81915 (SD CA, July 26, 2011), a California federal magistrate judge denied a preliminary injunction to a Muslim inmate who sought to be placed on the prison's kosher diet program, and who complained about other infringements on his religious practice.

In Castle v. Hedgpeth, 2011 U.S. Dist. LEXIS 82289 (ED CA, July 26, 2011), a California federal magistrate judge recommended that a Muslim inmate's challenge to prison rules barring inmates from possessing prayer oils in their cells be dismissed on qualified immunity grounds. The temporary ban was imposed after a chaplain was accused of smuggling in contraband in prayer oil.

In Cookson v. Commissioner, Maine Department of Corrections, 2011 U.S. Dist. LEXIS 82393 (D ME, July 26, 2011), an inmate sued the state Commissioner of Corrections claiming that he discriminatorily applied state policy in refusing to recognize Satanism as a religion in the prison system.  While the litigation was pending, a new Commissioner of Corrections took over. A Maine federal magistrate judge recommended that the suit against the former commissioner (which sought only prospective relief) be dismissed, with the possibility of proceeding against the new commissioner left open, depending on his response to plaintiff's request for recognition of Satanism.

In Muhammad's Temple of Islam v. Pennsylvania Department of Corrections, (Commonwlth. Ct. PA, July 26, 2011), a Pennsylvania appellate court  rejected a complaint by a Nation of Islam inmate that prison authorities ended their separate recognition of MTI as a faith group (with separate religious services) and left adherents only the options of attending Sunni religious services or attending no congregate religious services.
[Updated]

NYT Traces Forces Behind Anti-Shariah Movement In U.S.

Today's New York Times runs a front-page article titled Behind an Anti-Shariah Push, tracing the forces behind the move in state legislatures to enact anti-Shariah laws. The Times says:

A confluence of factors has fueled the anti-Shariah movement, most notably the controversy over the proposed Islamic center near ground zero in New York, concerns about homegrown terrorism and the rise of the Tea Party. But the campaign’s air of grass-roots spontaneity, which has been carefully promoted by advocates, shrouds its more deliberate origins.

In fact, it is the product of an orchestrated drive that began five years ago in Crown Heights, Brooklyn, in the office of a little-known lawyer, David Yerushalmi, a 56-year-old Hasidic Jew with a history of controversial statements about race, immigration and Islam. Despite his lack of formal training in Islamic law, Mr. Yerushalmi has come to exercise a striking influence over American public discourse about Shariah.

Working with a cadre of conservative public-policy institutes and former military and intelligence officials, Mr. Yerushalmi has written privately financed reports, filed lawsuits against the government and drafted the model legislation that recently swept through the country — all with the effect of casting Shariah as one of the greatest threats to American freedom since the cold war.

The entire article is worth a read.

9th Circuit Rejects RFRA Defense In Marijuana Farm Owner's Conviction

In United States v. Lepp, (9th Cir., July 27, 2011), the U.S. 9th Circuit Court of Appeals affirmed the conviction and ten year mandatory minimum sentence imposed on Eddy Lepp who had been charged with running a large marijuana farm known as "Eddie's Medicinal Gardens and Ministry of the Rastafari." (See prior posting.) The court held:

The district court did not err in denying Lepp’s Motion in Limine seeking to present a religious defense under the Religious Freedom Restoration Act of 1993 (RFRA). Applying the criminal laws prohibiting possession and manufacture of marijuana to Lepp is the least restrictive means of furthering the government’s compelling interest in preventing diversion of sacramental marijuana to nonreligious users....

Nor did the district court abuse its discretion by denying Lepp an evidentiary hearing on his RFRA Motion. One of the facts Lepp sought to establish at such a hearing—that his religious beliefs were sincerely held—had already been accepted as true by the court. As for the other fact he sought to prove, ... the court stated that its ruling would be the same “regardless of whether or not” there were 2,500 adherents in Lepp’s congregation.... 

Hawaii Daily News reports on the decision.

China Takes New Steps Against House Churches

Compass Direct News reports that Chinese authorities this week sentenced Shi Enhao, deputy leader of the Chinese House Church Alliance, to two years of  "re-education through labor" on charges of organizing and holding illegal religious meetings. Authorities have also ordered Shi's church members to stop meeting for worship, and have confiscated musical instruments, choir robes and church donations.

Earlier this week, the Wall Street Journal reported on growing tensions between the Chinese government and illegal underground churches. It said in part:

For the first time, China's illegal underground churches, whose members are estimated in the tens of millions, are mounting a unified and increasingly organized push for legal recognition.

The government, fearing that faith in God will soon subvert faith in the party, is responding with a stepped up campaign against the churches and the networks uniting them.

The struggle is shaping up as the tensest standoff over religious freedom in China since a brutal crackdown on adherents of Falun Gong in 1999 after they made similar calls for official acceptance.

New Interpretation of Covenant on Civil and Political Rights Rejects Blasphemy Laws

The United Nations Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights.  This week, after two years of debate and consultation, the Committee finalized General Comment No. 34, an authoritative interpretation of the freedoms of opinion and expression guaranteed by Article 19 of the Covenant. (Press release.) This is the first General Comment issued on these provisions since 1983.  Even though Article 18 of the Covenant protects freedom of thought, conscience and religion, this General Comment finds various protections of religious expression inherent in Article 19 as well.  It provides that freedom of opinion includes opinion of a moral or religious nature (Par. 9), and  freedom of expression includes religious discourse. (Par. 11). The General Comment also finds that generally blasphemy laws would violate the Covenant:

48. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2 [advocacy of religious hatred that constitutes incitement], of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over nonbelievers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

Reuters reports on the release of the General Comment.

EEOC Sues Taco Bell Chain For Refusing To Accommodate Nazirite's Long Hair

On Thursday, the EEOC announced that it had filed suit against a company that operates a chain of Taco Bell restaurants in eastern North Carolina for failing to reasonably accommodate a former employee's religious beliefs.  In EEOC v. Family Foods, Inc., (ED NC, filed 7/28/2011), the EEOC charged that the company in 2010 informed employee Christopher Abby, who had worked for the company for six years, that he now needed to cut his hair to comply with the company's grooming policy. When he refused, he was fired. Abby is a practicing Nazirite and his religious beliefs preclude him from cutting his hair. [Thanks to Steven H. Sholk for the lead.]

Divided 4th Circuit Says County's Invocation Policy Violates Establishment Clause

In Joyner v. Forsyth County, North Carolina, (4th Cir., July 29, 2011), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that  the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face. All congregations in the community were invited to send a religious leader to lead an invocation at one of the commission meetings. As implemented, however, all those who delivered prayers were Christian, nearly 80% of the prayers delivered mentioned Jesus, and none mentioned any other deity. This policy "resulted in sectarian invocations meeting after meeting that advanced Christianity..."  The majority added:

This is not to say that the Board must abandon the practice of legislative prayer. Nor do we wish to set forth some sort of template for an ideal legislative prayer policy....  The bar for Forsyth County is hardly a high one. Public institutions throughout this country manage to regularly commence proceedings with invocations that provide all the salutary benefits of legislative prayer without the divisive drawbacks of sectarianism.... And religious leaders throughout this country have offered moving prayers on multitudinous occasions that have managed not to hurt the adherents of different faiths.

Judge Niemeyer, dissented, arguing that the county's policy is completely neutral and proactively inclusive, allowing religious leaders to deliver invocations they compose. He insisted: "The Establishment Clause does not require the County to forbid invocational speakers from making sectarian references in their prayers." Summarizing his concerns, the dissent wrote:

The majority’s decree commands that every legislative prayer reference only "God" or some "nonsectarian ideal," supposedly because other appellations might offend. Thus, in a stated sensitivity to references that might identify the religion practiced by the religious leader, the majority has dared to step in and regulate the language of prayer—the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety; [and] hardly accommodates the Supreme Court’s jurisprudence in Marsh v. Chambers....

(See prior related posting.) [Thanks to Rob Luther for the lead.]

Jeffs Trial Begins With Silence and Sermon From Defendant Representing Himself

The trial of Warren Jeffs, leader of the polygamous FLDS Church, proceeds with unusual twists. As previously reported, Jeffs dismissed his legal team and asked to represent himself. (See prior posting.) As reported by ABC News, Judge Walther urged Jeffs not to dismiss his impressive legal team; however she ultimately permitted Jeffs to represent himself and refused to delay the opening of trial.  The judge also ordered Jeffs' counsel to remain on as side counsel in case Jeffs again changes his mind.

As the trial began, Jeffs stared into space as the prosecutor gave his opening statement, and Jeffs declined to give his own opening statement. He remained seated and mute as the prosecution then moved ahead with presenting its case. Finally today, according to AP, Jeffs broke his silence and launched into a 55-minute sermon, saying in part:

We cannot surrender these principles based on the laws of man trying to convince us that our religion is not necessary in practice... [T]his must stop in a land of freedom if all others are to receive a similar guarantee against their freedom of religion being trampled.... We are not a fly-by-night religious society . . . We are a community of faith and principles and those principles are so sacred.... [Polygamy] is not of a sudden happening, it is of a tradition in our lives. And how can we just throw it away and say "God has not spoken?"

Wisconsin Website Links To Christian Pregnancy Centers Are Protested

According to yesterday's Madison (WI) Isthmus, the Freedom from Religion Foundation has written Wisconsin Gov. Scott Walker complaining about a link on the state's website to Care Net Pregnancy Centers. (Full text of July 14 letter.) The link appears on the Family Services page of the website along with other links, most of which are to government agencies. In its July 22 press release announcing the letter, FFRF said:

Care Net promotes a rabid evangelical Christian agenda, and is hostile to nonbelievers, non-Christians and nonevangelicals, as well as the feminist principle of a woman’s right to reproductive self-determination. Care Net proclaims that it has adapted a statement of faith from the National Association of Evangelicals. The NAE's professed government-relations goal is “Bringing biblical values to the political sphere.” No state government office should have any affiliation with a group that has a “statement of faith”....

Indonesia's Light Sentences In Attacks on Ahmadis Draw Criticism

The Jakarta Globe reports today that human rights groups and western countries are criticizing the light sentences handed down to 12 defendants found guilty of attacking members of the Ahmadiyah community last February, killing three Ahmadis and injuring five seriously. The defendants were villagers and students from Muslim boarding schools who joined a mob confronting the Ahmadis.  A court in Serang acquitted the defendants of inciting hatred and mob violence, but convicted them of participation in a violent attack that resulted in casualties. Sentences of between 3 and 6 months were imposed.  The sentences were imposed by different panels of judges.  All the panels, however, agreed that the Ahmadis instigated the attack by ignoring police calls to disperse and instead challenging the mob to a fight.  The United States Embassy in Jakarta issued a statement critical of the sentences:

We are disappointed by the disproportionately light sentences handed down on July 28 in the trials of twelve individuals implicated in the brutal murder of three Indonesian citizens during the February 6 attack on an Ahmadiyah community in Cikeusik, Pandeglang, Banten Province. The United States encourages Indonesia to defend its tradition of tolerance for all religions, a tradition praised by President Obama in his November 2010 visit to Jakarta.

The Ahmadiyah are seen as a deviant sect by other Muslims in Indonesia. (See prior posting.)

Herman Cain Apologizes For Remarks About Mosque Construction

Herman Cain, candidate for the Republican nomination for president, met on Wednesday with four Muslim leaders at ADAMS Center in Sterling, Virginia, a mosque serving the Washington, DC area, and apologized for statements he made opposing construction of a mosque in Murfreesboro, Tennessee. (See prior posting.) According to today's The Tennessean, Cain issued a written statement after the meeting, saying:

While I stand by my opposition to the interference of Shariah law into the American legal system, I remain humble and contrite for any statements I have made that might have caused offense to Muslim Americans and their friends. I am truly sorry for comments that may have betrayed my commitment to the U.S. Constitution and the freedom of religion guaranteed by it. Muslims, like all Americans, have the right to practice their faith freely and peacefully

Rwanda's Parliament Divided Over Definition of Religion

All Africa.com reported yesterday that the two houses of Rwanda's Parliament are split over the definition of "religion" in a proposed "Bill Governing Religious Communities in Rwanda." The comprehensive bill on freedom of worship, and registration and organization of religious communities was passed by the lower house, the Chamber of Deputies, with "religion" defined as: "a group of people of the same set of beliefs with the same God or god and preachings based on their consciousness."  That definition emerged from the work of a team of researchers.  However, when the Senate passed the bill, it amended it to define religion as: "A doctrine of a community sharing the same beliefs and cult." Lawmakers have voted to set up a joint committee from both houses to work out an acceptable definition before proceeding further.

Two Groups That Lead Legislative Bible Study Battle Over Trademark

California's Capitol Weekly reported yesterday on a trademark dispute between two separate groups that organize Bible study classes for legislators. Pastor Ralph Drollinger's group, Capitol Ministries, has been leading Bible study for California legislators for over ten years, and three years ago began organizing classes in the Capitol in Washington, DC. However, in May it was sued for trademark infringement by Capitol Commission, a North Carolina-based group that leads Bible studies in 16 state Capitols because Drollinger's group often operates under the label Capitol Commission.  According to Capitol Weekly:

Capitol Commission president Jim Young said Drollinger is intentionally creating confusion between the two groups, by “domain squatting” on the Internet and other means, partially in order to siphon off donations meant for Capitol Commission....

Drollinger claims that a trio of former Capitol Ministries employees stole mailing lists and thousands of email addresses, which he said were then given to Capitol Commission. While he has not filed a lawsuit, he claims its Capitol Commission that is intentionally hurting his ministry.

Plaintiffs Lack Standing To Challenge Texas Governor's Prayer Rally Sponsorship

In Freedom from Religion Foundation, Inc. v. Perry, (SD TX, July 28, 2011), a Texas federal district court held that plaintiffs lack standing to challenge as an Establishment Clause violation Texas Governor Rick Perry's proclamation declaring August 6 as "A Day of Prayer and Fasting for Our Nation" and his involvement with the American Family Association in sponsoring a prayer rally scheduled for that day. (See prior posting.)  The court concluded that "Governor Perry’s statements are requests, not commands, and no injury flows from a mere request."  It added that "feelings of exclusion or being unwelcome arising from an invitation 'to engage in a religious observance that is contrary to their own principles' are likewise not sufficient to confer standing...." The Houston Chronicle reports on the decision.

Warren Jeffs Trial Begins Today

AP reports that opening arguments begin today in San Angelo, Texas in the trial of FLDS leader Warren Jeffs on charges of sexually assaulting two underage girls.  Prosecutors charge that the leader of the polygamous religious sect lured the girls into "spiritual marriages."  Defense attorneys appear likely to raise a free exercise defense. Yesterday, Judge Barbara Walther denied a motion to suppress evidence seized in the raid of the FLDS Yearning for Zion ranch in 2008. (See prior posting.) Today, just before opening arguments, she will hear arguments on a motion to suppress evidence from a traffic stop of Jeffs in 2006.  Meanwhile the Salt Lake Tribune last week reported on  the challenge to Jeffs power as FLDS leader by former high-ranking elder William E. Jessop.  Evidence in Jeffs trial could increase support for Jessop.

UPDATE: On Thursday morning, Warren Jeffs told Judge Barbara Walther: "I have released all my counsel. I desire to represent myself."  The Salt Lake Tribune reports that Walther recessed proceedings to consider the request. Jeffs says his lawyers could not present his true defense.

Tentative Ruling Removes Circumcision Issue From San Francisco Ballot; [UPDATE: Ruling Confirmed]

The Bay Citizen reports that in a tentative ruling yesterday, a San Francisco (CA) Superior Court judge held that the San Francisco ballot initiative to ban male circumcision should be struck from the November ballot. Judge Loretta M. Giorgi held that the measure violates a state law that bars localities from regulating health care professionals who are also regulated at the state level. (See prior posting.) The Los Angeles Jewish Journal sets out the full text of the decision in Jewish Community Relations Council v. Arntz. The tentative ruling reads in part:

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made.

A hearing is scheduled in the case today at which the ruling will likely to be finalized.  Circumcision opponents say they will pack the courtroom. An appeal of the decision, once it is final, is expected.

UPDATE: AP reports that on Thursday, Judge Giorgi confirmed the tentative decision she handed down a day earlier, striking the measure from the November ballot.

UK Supreme Court: Faith-Based Arbitration Requirement Does Not Violate Employment Discrimination Law

In Jivraj v. Hashwani, (UK Sup. Ct., July 27, 2011), the United Kingdom Supreme Court held that an arbitration agreement entered in connection with a joint venture between two members of the Ismaili Muslim community was not void under the Employment Equality (Religion and Belief) Regulations 2003. At issue was a provision in the arbitration agreement that: "All arbitrators shall be respected members of the Ismaili community and holders of high office within the community." As summarized by the court's press release on the decision:

The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the light of the finding that the Regulations did not apply.

New York Files Amicus Brief Arguing Federal DOMA Is Unconstitutional

New York's Attorney General announced Tuesday that its office has filed an amicus brief (full text) in Windsor v. United States, a case pending in federal district court in New York challenging the constitutionality of the federal Defense of Marriage Act. The case is one in which the surviving spouse of a same-sex couple legally married in Canada is challenging the federal government's refusal to recognize her as a spouse for federal estate tax purposes.  (Background and pleadings in case.) It is also one of the two cases in which the U.S. Department of Justice announced that it would not defend the constitutionality of DOMA. (See prior posting.)  New York's filing of the amicus brief comes only days after same-sex marriages began to be legally performed in the state, though New York had previously recognized the validity of same-sex marriages performed in other states or countries.  Here is an excerpt from the amicus brief:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny.

Yesterday's New York Law Journal has more on the background of the case.

District Court Dismisses Challenge To Obama Administration Stem-Cell Research Guidelines

In Sherley v. Sebelius, (D DC, July 27, 2011), the federal district court for the District of Columbia upheld the legality of the Obama administration NIH Guidelines for Human Stem Cell Research. The court was constrained by a previous D.C. Circuit Court of Appeals decision that denied a preliminary injunction against implementation of the the Guidelines on the ground that plaintiffs had not shown that they were likely to succeed on the merits. In yesterday's decision, the district court held that plaintiffs have standing to challenge the Guidelines. On the merits, however, the court held that the Guidelines do not violate provisions of the Dickey-Wicker Amendment that prohibit the NIH from funding "research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero..."

The D.C. Circuit had already determined that the term "research" in the Congressional funding ban was ambiguous. Following the lead of the D.C. Circuit, the district court held that NIH reasonably interpreted the Dickey-Wicker Amendment to allow funding of stem cell research.  Finally, the court rejected plaintiffs' claim that the NIH Guidelines were promulgated in violation of the Administrative Procedure Act. Jurist  and USA Today report on the decision.

Challenge To State Law Protection of Ritual Slaughter Held Non-Justiciable

In Pasado's Safe Haven v. State of Washington, (WA App., July 25, 2011), a  Washington state appeals court dismissed as non-justiciable a challenge brought by an animal rescue organization to the provisions in Washington's Humane Slaughter Law permitting kosher and halal slaughtering of animals.  The law defines as humane either the stunning of animals, or slaughter pursuant to religious ritual that calls for instantaneous severance of the carotid arteries. The statute also provides that nothing in the statute shall be construed to abridge religious freedom.  Plaintiff sought to have those provisions declared unconstitutional and stricken from the statute. The court held, however, that the challenged provisions are inseverable from the remainder of the law, so that if they were found unconstitutional the court would need to invalidate the entire statute. Thus, in the court's language:

were plaintiffs to prevail on any one of their various constitutional challenges, the relief obtainable—a judgment declaring the challenged statute to be invalid in its entirety—is neither sought nor desired. Thus, regardless of our resolution of the merits of the various challenges made, at the end of this case the status quo would necessarily prevail. Our opinion would be nothing more than an advisory one.

Free Exercise Challenge To Animal Cruelty Law Not Preserved For Appeal

In Myers v. State of Texas, (TX App., July 21, 2011), a Texas state appeals court ruled that defendant in an animal cruelty case had failed to preserve for review on appeal his claim that the state's animal cruelty statute violated the free exercise of his religious beliefs. At trial, defendant urged the jury to consider his religious beliefs, but never argued to the court or requested a ruling on the constitutionality of applying the statute to him.

Chabad Gets Court Order Allowing Enforcement of Default Judgment For Library Collection Against Russia

In Agudas Chasidei Chabad of United States v. Russian Federation, (D DC, July 26, 2011), the D.C. federal district court, finding that defendants had received adequate notice, issued an order permitting a Jewish religious organization to enforce the default judgement it had previously obtained against Russia, its Ministry of Culture and its State Library. The judgment ordered return of a collection of books and artifacts belonging to Chabad which had been lost to them during the World War I and World War II periods and ended up in the hands of the Soviet Union. (See prior posting.)  The Russian Federation had previously withdrawn from participating in the litigation and also announced that it would refuse to loan art and cultural artifacts to art institutions in the United States, fearing that plaintiff would attach them to satisfy its default judgment.  The court's enforcement order, with consent of plaintiff, includes a provision that no execution will be made on property on loan to cultural or educational institutions which is exempt under a special provision of federal law. The court, however, refused to impose immediate sanctions for civil contempt and instead directed defendants to show cause as to why they should not be held in contempt. Blog of the Legal Times reports on the decision.

Atheist Group Sues Over Placement of Ground Zero Cross In 9/11 Memorial

On Saturday, according to NBC New York, the so-called World Trade Center cross was moved from its temporary location near St. Peters Roman Catholic Church to the nearby site of the former Twin Towers where it will become part of the National September 11th Memorial and Museum. The 20-foot high, 2 ton, twisted cross-shaped steel beams were found in the rubble of the World Trade Center in the days after their destruction, and the cross has become a religious icon to many. However, on Monday, American Atheists announced that they had filed a lawsuit in state court in New York seeking to enjoin the display of the cross in the September 11 Memorial and Museum until equal space is granted to non-Christian Americans for similar memorials. The complaint (full text) in American Atheists, Inc. v. Port Authority or New York and New Jersey, (NY Co. Sup. Ct., filed 7/25/2011), contends that the installation of the cross violates the Establishment Clause as well as various New York constitutional and statutory provisions.  Museum officials say the cross has become part of the Memorial and Museum not because of its religious symbolism, but because it is part of the history of Ground Zero. They say that steel girders made into other crosses, stars of David and possibly some Eastern religious symbols will also become part of the Museum.