Recent Prisoner Free Exercise Cases

In Mitchell v. Skolnik, 2011 U.S. Dist. LEXIS 90126 (D NV, Aug. 11, 2011), a Nevada federal district court, while dismissing some claims for failure to exhaust administrative remedies, permitted an African-American Hebrew Israelite inmate to move ahead with claims that officials retaliated against him for filing grievances by failing to schedule Jewish services and confiscating religious head wear. He was also permitted to proceed with claims that his rights were violated when he was denied kosher meals because his faith had not been verified by an outside organization.

In Robinson v. Florida Parole Commission, 2011 U.S. Dist. LEXIS 90707 (MD FL, Aug. 15, 2011), a Florida federal district court upheld revocation of petitioner's parole for violating curfew. The court rejected petitioner's claim that the curfew violated his free exercise rights. He claimed he was conducting church business at the time he was found to be out after curfew.

In King v. Bell, 2011 U.S. Dist. LEXIS 90750 (ED TN, Aug. 11, 2011), a Tennessee federal district court denied a death-row inmate's numerous objections to his conviction, including a claim that his rights were violated when the court excused for cause a potential juror who said she could not impose the death penalty because of the Biblical admonition against killing.

In Ghana v. New Jersey State Parole Board, 2011 U.S. Dist. LEXIS 91121 (D NJ, Aug. 15, 2011), plaintiff claimed that officials infringed his right to practice his African Hebrew Israelites of Jerusalem faith. The court held that plaintiff's claim for injunctive relief is moot because he has been transferred to a different prison facility. He was given 14 days to file the pretrial memorandum as to damage claims that he had failed to file in the past. If not filed, the case will be dismissed.

In Penwell v. Holtgeertz, 2011 U.S. Dist. LEXIS 91303 (WD WA, Aug. 16, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 91302, July 15, 2011), and, in a case on remand from the 9th Circuit, denied defendant's motion for summary judgment.  It held that the factual record has been insufficiently developed as to whether restrictions on an inmate's attending group worship services and consulting with a chaplain while in Administrative Segregation violated the 1st Amendment or RLUIPA.

In Mathis v. Brazoria County Sheriff's Office, 2011 U.S. Dist. LEXIS 91827 (SD TX, Aug. 17, 2011), a Texas federal district court upheld a county jail's policy of refusing to provide kosher meals to plaintiff, and instead offering him only a pork-free diet.

In Argue v. Current MDOC Special Activities Director,  2011 U.S. Dist. LEXIS 92270 (WD MI, Aug. 17, 2011), a Michigan federal district court dismissed, partially on mootness grounds, RLUIPA claims by an inmate seeking a kosher diet and transfer to a facility where he could attend Jewish worship services. The court also held that RLUIPA claims do not lie against prison officials in their personal capacities.

Egyptian Police Arrest Man For Facebook Postings Insulting To Islam

According to AFP, reports from Egypt yesterday say Cairo police arrested a 23-year old man on charges that he posted comments on Facebook that were insulting to the Prophet Muhammad, the Qur'an, Islam and Muslims.  The man, who could be charged under a law that prohibits "insulting religion," was identified only as Ayman Y.M.

9th Circuit: Teacher Who Allegedly Insulted Religion Has Qualified Immunity From Damages

The 9th Circuit yesterday affirmed a district court's dismissal of an action that had been brought by a former California high school student against his history teacher. (See prior posting.)  Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. In C.F. v. Capistrano Unified School District, the 9th Circuit held that claims for declaratory relief were moot since plaintiff had graduated and was no longer in the high school. Moving to plaintiff's claim for nominal damages, the 9th Circuit held:

Mindful that there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances, we affirm the district court’s conclusion that the teacher is entitled to qualified immunity. Because it is readily apparent that the law was not clearly established at the time of the events in question, and because we may resolve the appeal on that basis alone, we decline to pass upon the constitutionality of the teacher’s challenged statements.

In discussing whether a rule of law had been clearly established, the court commented:

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority....But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

The Christian Science Monitor reports on the 9th Circuit's decision.

Profile of Jon Huntsman Includes Insights Into His Religious Views

This month's Vogue Magazine carries an interesting lengthy profile of Republican Presidential hopeful Jon Huntsman. Here is an excerpt that deals with the Huntsman family's religious beliefs:

Mary Anne [Huntsman's 26-year old daughter], in jogging shorts, is headed out to pick up lunch. She falls into the conversation I am having with her mother about the family’s approach to religion. Mary Kaye [Huntsman's wife] has been telling me that both Episcopalianism, the denomination in which she was raised, and her husband’s Mormon heritage are important to them. “I draw from both,” Mary Kaye says. “I think my children have drawn from both. We are a family that combines two, and it works for us.”

I ask her daughter Mary Anne how she might identify her religion on a census form. “Mormon and Christian,” she says. “Every person is different in the way they feel spiritually.” Her mother adds that spirituality, which the family strongly feels, is more important than the tenets of a particular faith.

People tend to see Mormonism as a binary, you-are-or-you-aren’t question, but Jon Huntsman is something more like a Reform Jew, who honors the spirit rather than the letter of his faith. He describes his family on his father’s side as “saloon keepers and rabble rousers,” and his mother’s side as “ministers and proselytizers.” The Huntsman side ran a hotel in Fillmore, Utah’s first capital, where they arrived with the wagon trains in the 1850s. They were mostly what Utahans call “Jack Mormons”—people with positive feelings about the Latter-Day Saints church who don’t follow all of its strictures. “We blend a couple of different cultures in this family,” he says.

Polish Court Clears Death Metal Singer On Offending Religious Feelings Charges

According to yesterday's London Guardian, a court in Poland has cleared "death metal" singer Adam Darski (known as Nergal) of charges of offending religious feeling. In a 2007 concert in Poland, Darski tore up a Bible, threw the pages to the audience and asked them to burn them.  He also called the Bible a deceitful book and the Church a criminal sect.  The judge concluded that Darski's actions were "a form of art" consistent with the style of his band.

Vatican Posts Some Files of Accused Priest Online In Advance of Producing Them In Discovery

A Portland, Oregon federal district court judge has ordered the Vatican to turn certain documents over to plaintiff's lawyers by today in a lawsuit in which a victim of priest sexual abuse is attempting to hold the Holy See vicariously liable for the action of a now deceased priest.  Various other theories for holding the Vatican liable for the abuse by Rev. Andrew Ronan were dismissed. (See prior posting.)  USA Today reports that in a pre-emptive move on Wednesday, the Vatican posted online (full text) some of the internal files on Ronan.  In posting the document, the Vatican's lawyer said:

The federal courts have dismissed most of the Doe lawsuit. Today, to assist the Oregon federal district court in resolving the sole remaining jurisdictional issue in the case, the Holy See is releasing all known documents relating to Ronan held by the Roman Curia.

Like other documents previously produced by the Servite Order and the Portland Archdiocese, these newly-released documents show that the plaintiff’s lawyers’ long-standing accusations against the Holy See are false. The Holy See was not involved in Ronan’s transfers, including the transfer to Portland, and had no prior knowledge that Ronan posed a danger to minors. Instead, the documents confirm that the Servite Order first informed the Holy See of Ronan’s misconduct when Ronan petitioned for laicization in February 1966 – after the plaintiff’s abuse – and that the Holy See granted the petition for laicization just weeks later.

The plaintiff’s lawyers never had support for their calumnious accusations against the Holy See. They have nonetheless chosen to misuse the legal system as a vehicle to pursue a broader agenda – a decision that has misled the public and wasted considerable resources.

Notwithstanding the plaintiff’s lawyers’ regrettable conduct, it is important to remember that any abuse suffered by this plaintiff, or any other victim of sexual abuse, is deplorable.

Court Says Illinois May Refuse To Renew Adoption and Foster Care Contracts With Catholic Charities

Yesterday, in Catholic Charities of the Diocese of Springfield v. State of Illinois, (IL Cir. Ct., Aug. 18, 2011), an Illinois trial court rejected attempts by Catholic Charities organizations in three cities to prevent the state of Illinois from refusing to renew their contracts to provide foster care and adoption services for the state. The state took the step because Catholic Charities will not serve unmarried cohabiting couples (including those in same-sex civil unions). (See prior posting.)  The court held that even though Catholic Charities have provided foster care and adoption services to Illinois families for 40 years under successive one-year contracts, the organizations have no legally recognized protected property interest in the renewal of their contracts. Chicago Tribune reports on the decision.

Britain Faced With Issues of Caste Discrimination

Some 5% of Britain's population are originally from the Indian subcontinent.  Apparently this has led to the importation into Britain of problems of caste discrimination. The London Mail reported yesterday on a case pending before an employment tribunal in which a couple-- from different castes-- claim they were forced from their jobs in a British law firm because of their marriage. Amardeep Begraj, a solicitor, a Sikh from the Punjab region, belongs to the Jat caste.  She met her husband, Vijay-- a  low-caste Dalit-- at the law firm where he worked as the practice manager.  They were warned by a senior colleague not to marry because of their caste differences.  Amardeep claims that her workload was increased and her secretarial support reduced as punishment after she was married, and that she was paid less than colleagues.  After Vijay was fired, Amardeep resigned from the firm. The employment tribunal is considering whether this constitutes racial or religious discrimination. Meanwhile, the government is considering whether to add caste to the equality law that now protects against discrimination on the basis of race, gender, religion and sexual orientation.

Perry Says Texas Schools Teach Creationism

The Texas Tribune reported yesterday on answers to questions about evolution given by Texas Gov. Rick Perry during his New Hampshire campaign stop. Perry, now a candidate for the Republican presidential nomination, was asked about the topic by a young boy-- visibly prompted by his mother. Perry responded:

It’s a theory that’s out there. It’s got some gaps in it.  In Texas, we teach both creationism and evolution in our public schools. Because I figure you’re smart enough to figure out which one is right.

Creationism is not part of the formal science curriculum in Texas. However, in 2009, the State Board of Education voted to insert in the biology curriculum a call for students to "analyze and evaluate scientific explanations" on the complexity of cells as well as data on the "sudden appearance and stasis and the sequential groups in the fossil record." (See prior posting.)

Initiative Proponents Take First Steps Toward Legalizing Same-Sex Marriage In Maine

According to yesterday's Portland Press Herald, proponents of an initiative to legalize same-sex marriage in Maine can now begin gathering signatures on their initiative petitions.  This week, the Secretary of State's office approved the language that would appear on the Novembeer 2012 ballot if at least 57,277 valid signatures are collected:

Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?

Proponents have until January to collect the required number of signatures.  If they are successful, the legislature will have an option to enact the legislation. If it does not, then the measure goes on the ballot.

Britain's Equality Commission Will Study "Reasonable Accommodation," But Not In European Court Submission

Last month, Britain's Equality and Human Rights Commission announced that it had petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempts by employees to obtain accommodation of their Christian religious practices or beliefs. The Commission suggested that it would urge the court to adopt a principle of reasonable accommodation. (See prior posting.) Now, however, the Commission has announced that while it has been granted permission to intervene, it will not used these cases as the vehicle to deal with the concept of reasonable accommodation.  Instead, according to a document posted on the Commission's website (full text Word.doc), it is seeking public input on the content of its submission to the Court, and will examine separately, without the time pressure of the few week deadline for its filing with the ECHR, "whether the concept of reasonable accommodation has any useful practical application in cases concerning the manifestation of religion or belief." Yesterday's London Telegraph reports on these developments.

Claims Against Church Can Be Decided Using "Neutral Principles"

In Johnson v. Antioch United Holy Church, Inc., (NC App., Aug. 16, 2011), a North Carolina appeals court reversed a trial court's dismissal of lawsuit against a church.  The trial court had held that it was constitutionally precluded from deciding the case because the suit-- alleging violations of North Carolina's Non-Profit Corporation Act and alleging intentional infliction of emotional distress-- involved an internal church governance dispute. However the court of appeals concluded that the claims could be resolved under neutral principles of law. It said in part:

Plaintiffs allege Defendants have wasted corporate assets without proper authority under Antioch’s bylaws, caused church assets to inure to the benefit of private individuals, and failed to keep appropriate records of its activities. Plaintiffs further allege these acts have threatened the church’s tax-exempt status and exposed Plaintiffs to liability for federal and state income tax for funds received by Antioch. Whether Defendants’ actions were authorized by the bylaws of the church in no way implicates an impermissible analysis by the court based on religious doctrine or practice....

Plaintiffs’ second claim alleges common law intentional infliction of emotional distress against McGlenn when McGlenn delivered to Wallace a letter stating that Wallace was no longer a member of Antioch. While a court cannot determine whether a church’s grounds for membership are spiritually or doctrinally correct, ... applying a secular standard of law to secular tortious conduct by a church is not prohibited by the Constitution.

The appeals court also reversed the trial court's imposition of Rule 11 sanctions on plaintiff.

9th Circuit: Idaho Charter School Teachers Have No 1st Amendment Right To Use Religious Texts

The 9th Circuit Court of Appeals has affirmed the dismissal of a lawsuit brought by an Idaho state-funded charter school and two of its teachers challenging a policy adopted by the state's Public Charter School Commission. The Commission adopted the view of the state attorney general that the use of religious documents or texts in a public charter school classroom would violate Art. IX, Sec. 6 of the Idaho Constitution. That section prohibits the use of sectarian books or documents in public school classrooms. Teachers at the Academy wanted to use primary source documents-- including the Bible and the Koran-- in teaching their courses and argued that the ban violated their and their students' 1st and 14th Amendment rights. (See prior posting.)

In Nampa Classical Academy v. Goesling, (9th Cir., Aug. 15, 2011), the 9th Circuit held that the school, as a government entity, cannot bring an action against the state, but a teacher does have standing to pursue the claim. The court went on to hold, however, that:

The First Amendment’s speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. The government’s own speech is exempt from scrutiny under the First Amendment’s speech clause.

Judge Rawlinson concurred only in the result.

Tennessee Sheriff Changes Rules On Mug Shots of Those Wearing Religious Head Coverings

Yesterday's Tennessean reports that in Nashville,  the Davidson County, Tennessee sheriff's office has revised its policy regarding wearing of religious head coverings for mug shots.  A person wearing religious head covering who is being booked into the county jail will first have a mug shot taken with the head covering on.  Then a second photo will be taken with the head covering removed from the person's face.  This photo will be taken only in the presence of a same-sex guard, and will be kept in a confidential file that can only be opened by court order.

Barber Shop Closed Down After Inspectors Find Palo Mayombe Altar and Animals

In New Bedford, Massachusetts on Tuesday, the state Division of Professional Licensure closed down a downtown barber shop after animal control officers found evidence that the shop's owner, William Camacho, was engaging in ritualistic animal sacrifice there.  According to the New Bedford Standard-Times, Camacho is a practitioner of Palo Mayombe.  A routine fire and building inspection turned up two chickens and four roosters (one dead) in cages next to a religious altar in the barber shop's basement. Camacho says he does not sacrifice the animals at the barber shop, but only at ceremonies in rural settings.

UPDATE: According to  New Bedford's health director, the barber shop was ordered closed because of the health problems that could result from fecal matter found on the basement floor where the animals were located. The inspection was prompted by an anonymous complaint that roosters were heard crowing. (Standard-Times, Aug. 18).

New York City Council Strengthens Law's Requirement To Accommodate Religious Observance

The Empire reports that yesterday New York City Council passed an amendment (full text) to the city's Human Rights Law making it more difficult for both private and governmental employers to refuse to accommodate employees' religious practices.  The amendment was particularly an effort to address problems that the large Sikh community in Queens has faced in seeking to wear turbans while employed by the New York Police Department. The amendment requires the employer to show significant expense or difficulty would be involved in accommodating an employee before denying an accommodation request.

Georgia City Approves Controversial Mosque

The Atlanta Journal Constitution reports that yesterday the Lilburn, Georgia city council voted 3-1 to approve the controversial rezoning request of a Muslim congregation to build a 20,000 square foot worship center to meet the needs of the city's growing Muslim population.  Council had twice before rejected the rezoning request that would have permitted the Dar-E-Abbas congregation to buy up land surrounding its current mosque and expand. Last December, council deadlocked 2-2 over the request, though zoning amendments last September permitted the congregation to create a cemetery less than a half mile away. (Atlanta Journal Constitution).  Dar-E-Abbas will now drop its federal discrimination lawsuit against Lilburn which it brought in 2009, but the Department of Justice is still investigating whether the city has violated the Religious Land Use and Institutionalized Persons Act.

No Free Exercise Violation In Requiring Dog Be Vaccinated Before Being Adopted From City Shelter

In a variation on the typical free exercise objection to vaccination requirements, a Florida federal district court has dismissed a claim that the Department of Animal Services in Clearwater, Florida violated a Largo, Florida man's rights by insisting that the dog he wished to adopt first have various shots.  In Fohrmeister v. Doe, 2011 U.S. Dist. LEXIS 90702 (MD FL, July 27, 2011), a federal magistrate judge, in an opinion adopted by the court (2011 U.S. Dist. LEXIS 90704, Aug. 15, 2011), held that the pro se plaintiff had failed to allege sufficient facts to make clear what his religious beliefs were. Moreover, "the burden posed by the applicable law on any religious belief or practice appears tangential and attenuated at best."

FFRF Objects To Funding Improvement In Church Building Being Used For Public Pre-School Class

Last week, the Cedar Falls, Iowa Board of Education, short on space for its pre-school classrooms, voted to locate one of them in Kaio Church, next door to an existing elementary school.  The Board approved spending over $61,000 to add handicap accessible restrooms, installing emergency exits, abating asbestos and otherwise bringing the space up to building code requirements. (WCF Courier 8/9). Now, according to yesterday's WCF Courier, the Freedom from Religion Foundation has written the Board contending that the contract violates Art. I, Sec. 3 of the state constitution which provides:

nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship....

School Superintendent David Stoakes disagrees, saying: "Separation has to do with programming, not the facility. We are not going to be propagating any religion in our preschool program."

Report Disputes Data On Decrease of Christian Population In West Bank, Gaza and Jerusalem

Seeking to counter reports accusing Israel of creating a mass exodus of Palestinian Christians from Palestinian areas, the Jewish Council on Public Affairs yesterday announced the release of a report (full text) on the size of the Christian population in the West Bank, Jerusalem and Gaza. Here is an excerpt:

What is misleading about the way the story has been told about a diminishing Palestinian Christian population?

1) Population: We are told that the population is small. In reality, though, it has never been large. The most important part of the story is that the significant drop in Christian population in the West Bank occurred years ago. Some Palestinian Christians became refugees in 1948. Others left during Jordanian rule from 1948-1967. Since 1967, when the West Bank came under Israel and later Palestinian Authority administration, the population has not decreased. In fact, according to almost all sources, it has increased – just at a rate slower than it would have increased without emigration. Hypothetic data showing how the population might have increased are speculative and questionable.

2) Percentage: The percentage of Christians in the West Bank has decreased dramatically. This is largely due to the exponential increase in the surrounding Muslim population. Emigration and low birth rate are real, but pale in comparison to the dramatic increase in the Muslim demographic. In many instances, the data used for comparison reference different areas, making the decrease seem more stark than it really is.

Suit Challenges City's Transfer of Property To Catholic High School For Athletic Complex

Americans United announced yesterday that it, along with the ACLU of Indiana, has filed a lawsuit in federal district court challenging plans of the South Bend (IN) Common Council to use $1.2 million in economic development funds to purchase property that was the site of a retail store, tear down the building on it, and transfer it for $1 to the Catholic Diocese so St. Joseph's High School can use the property for part of its new $35 million football stadium and athletic complex. The complaint (full text) in Wirtz v. City of South Bend, Indiana, (ND IN, filed 8/16/2011), alleges that the property transfer violates the Establishment Clause, as well as Art. I., Secs. 4 and 6 of the Indiana constitution.  According to the complaint, while the Diocese intends to permit the football stadium to be used by the city or by public schools, this will be limited to times when it is not being used by St. Joseph's teams, and the Diocese may charge others for use of the stadium. (See prior related posting.)

Custody Order Violates Establishment Clause

In Rosenstein v. Rosenstein, (TX App., Aug. 11, 2011), a Texas appeals court held that in a divorce action, the trial court violated the mother's Establishment Clause rights when, in an amended decree, it awarded the father exclusive possession of the couple's children on four Jewish religious holidays, and on every Sunday morning.  The wife argued, in part, that this precluded her from having an opportunity to furnish her children religious education on Sunday, her primary day for attending church. The decree awarded the wife possession of the children on Thanksgiving, Christmas, New Year's day and Easter.  However, the father's religious holiday rights took precedence, so that conflicts between Passover and Easter, or Hanukkah and Christmas, would result in the father having the children on those days.  In reaching its conclusion, the court quoted an earlier state appeals court decision holding that "it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child."

Bachman's Religious Views Traced In New Yorker Article

The New Yorker this week carries a long article on Michelle Bachman titled Leap of Faith-- The Making of a Republican Front-Runner.  The piece, by Ryan Lizza, gives special attention to the content and development of Bachman's religious beliefs.  Lizza writes:

Bachmann belongs to a generation of Christian conservatives whose views have been shaped by institutions, tracts, and leaders not commonly known to secular Americans, or even to most Christians. Her campaign is going to be a conversation about a set of beliefs more extreme than those of any American politician of her stature, including Sarah Palin, to whom she is inevitably compared. Bachmann said in 2004 that being gay is “personal enslavement,” and that, if same-sex marriage were legalized, “little children will be forced to learn that homosexuality is normal and natural and that perhaps they should try it.” Speaking about gay-rights activists, that same year, she said, “It is our children that is the prize for this community.” She believes that evolution is a theory that has “never been proven,” and that intelligent design should be taught in schools.

Town Racks Up High Legal Bills In Code Enforcement Against Non-Profit

The town of Springdale, Washington has so far spent over $34,000 (over 20% of the town's annual budget) in a 2-year battle to enforce its building code against Dawud Ahmad, who says he is a Muslim sheik, and claims he has the right to live in a shed that does not meet building code requirements.  The shed is owned by a non-profit organization, Muslim America.  Ahmed is the organization's registered agent.  He claims that Muslim America is exercising its religious right to offer shelter to a homeless member of its organization. According to yesterday's Spokane (WA) Spokesman Review, last October a trial court rejected Ahmed's attempt to require the town to grant a building code exemption for the property. The court also ordered Ahmed and Muslim America to pay the town's legal bills of nearly $24,000. Plaintiffs, however, have appealed the decision, causing the city to have to spend another $10,000 on legal fees. The court has allowed Ahmed to sue in forma pauperis, so he has not had to pay any filing fees.

Trial Court Refuses Temporary Injunction In Indiana School Voucher Challenge

An Indiana trial court judge has refused to issue a temporary injunction to block the state's new school voucher program.  In Meredith v. Daniels, (IN Super. Ct., Aug. 15, 2011), plaintiffs claimed that the new Choice Scholarship Program violated various provisions of the Indiana Constitution: Art. 8, Sec. 1 ("General and Uniform System of Common Schools" clause); Art. 1, Sec. 4  (no compulsion to support any place of worship); and Art. 1, Sec. 6 (no government funds may be spent for the benefit of any religious institution).  The court concluded that plaintiffs are unlikely to succeed on the merits of any of these claims. It held that Art. 1, Sec. 4 "does not preclude the use of general tax revenues to fund scholarships that may be used, at the discretion of scholarship recipients, to pay for education at religious schools."  It also held that Art. 1, Sec. 6 does not invalidate the CSP because the scholarship program "was enacted 'for the benefit' of students, not religious institutions or activities."  NWI Times reports on the decision.

Texas DA Looking Into Pastor's Role In Circulating Recall Petitions

In El Paso, Texas, Pastor Tom Brown and his Word of Life Church are under investigation by El Paso County district attorney Jaime Esparza for violation of state election laws. Brown is the leader of a recall drive aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. When the city initially offered health benefits to same-sex couples, an initiative repealed those benefits, but also-- apparently inadvertently-- ended health benefits for 100 others as well. (See prior posting.) So City Council, in a tie vote broken by the mayor, voted to restore everyone's benefits. According to the El Paso Times, on Friday the district attorney announced that he is looking into whether efforts by Brown to circulate recall petitions at churches violates the state election code that prohibits corporations, including non-profit corporations, from circulating and submitting petitions to call an election. Americans United has already complained to the IRS about possible tax code violations growing out of Tom Brown Ministries' activities promoting the recall. (See prior related posting.)  Wall of Separation blog has more regarding AU's views.

Amicus Briefs In Hosanna-Tabor Case Are Available Online

All of the amicus briefs have now been filed with the U.S. Supreme Court in Hosanna-Tabor Church v. EEOC, a case raising the question of the scope of the "ministerial exception" to federal non-discrimination laws. (See prior posting.) The briefs are all available online from the ABA's website (along with briefs from the parties). Of the 30 amicus briefs filed, 21 support petitioner and 9 support respondent.  Oral argument is scheduled for Oct. 5.  [Thanks to Marty Lederman via Religionlaw for the lead.]

Egyptian Official Releases Constitutional Principles Document

AlMasry AlYoum on Sunday published an abridged version of the document titled "Basic Constitutional Principles" which Egypt's deputy prime minister for political affairs has presented to several political parties for their comment. (See prior related posting.) In outlining the suggested role for religion and religious freedom, the document reads in part:

Islam is the state religion, the Arabic language is its official language, and Islamic Sharia is the primary source of legislation. Non-Muslims resort to their own laws in regards to their personal issues and religious affairs.....

Human dignity is every person’s genuine right, and all Egyptian citizens are free and equal before the law in rights and freedoms and general obligations. Discrimination among them due to sex, origin, language, religion, creeds, wealth, social status, political views, or disabilities or anything of that sort is forbidden.

...The state guarantees freedom of belief, worship, and religious slogans and protects the role of worship.

FLDS Faithful Are Erecting Statue of Warren Jeffs

The Daily Beast reported last week that followers of FLDS leader Warren Jeffs are planning to erect a 38-foot tall statue of Jeffs at the activity center of the Fundamentalist Church of Latter Day Saints' compound in Short Creek, on the Utah-Arizona border. The statue is being constructed in seven pieces in a hidden warehouse in San Angelo, Texas where Jeffs criminal trial on sexual assault charges has recently ended. (See prior posting.)  Plans are for the statue to go up next month as a way of showing that authorities cannot take Jeffs away from his followers, despite his recent conviction.

Recent Articles of Interest

From SSRN:

• Wibren Van der Burg, Inclusive Neutrality in the Classroom, (Yearbook of the European Association for Education Law and Policy, 2011).
• Jason J. Kilborn, Foundations of Forgiveness in Islamic Bankruptcy Law: Sources, Methodology, Diversity, (August 11, 2011).
• Jeremy Waldron, What are Moral Absolutes Like?, (August 8, 2011).
• Barbara J. Cox, Why Appellate Courts Have Rejected the Argument that the Defense of Marriage Act Trumps the Parental Kidnapping Prevention Act, (California Western International Law Journal, Vol. 41, No. 189, 2010).

From SmartCILP:

• Capt. Evan R. Seamone, Divine Intervention: The Ethics of Religion, Spirituality, and Clergy Collaboration in Legal Counseling, 29 Quinnipiac Law Review 289-373 (2011).
• Symposium. Twenty Years After Employment Division v. Smith: Assessing the Twentieth Century's Landmark Case on the Free Exercise of Religion and How It Changed History. Articles by David B. Frohnmayer, Marci A. Hamilton, Alan Brownstein, Angela C. Carmella, Daniel O. Conkle, James G. Dwyer, Stephen M. Feldman, Richard W. Garnett, Leslie C. Griffin, B. Jessie Hill, Steven D. Jamar, Ira C. Lupu, Robert W. Tuttle, William P. Marshall, Linda C. McClain, Richard Schragger, Steven D. Smith, Nelson Tebbe and Laura S. Underkuffler. 32 Cardozo Law Review 1655-2091 (2011).

Straw Poll Winner Bachman Interviewed About Her Religious Views

On today's broadcast of Meet the Press (full transcript), host David Gregory interviewed Minnesota Rep. Michelle Bachman who won yesterday's Ames, Iowa Republican "straw poll" for the Republican presidential nomination.(Full results).  Gregory and Bachman engaged in an extensive discussion of Bachman's religious views. Here is a lengthy excerpt:

MR. GREGORY: ... I want to move on to another topic that's deeply meaningful and important to you, and that's your faith in God.... I want to ask you about, not only the role God plays in, in your life but to what extent he's a motivator for decisions that you make. One example that's gotten some attention is some remarks you made back in 2006....

(Audiotape, October 14, 2006) REP. BACHMANN: My husband said, "Now you need to go and get a post-doctorate degree in tax law." Tax law! I hate taxes. Why should I go and do something like that? But the Lord says, "Be submissive, wives, you are to be submissive to your husbands." (End audiotape)

MR. GREGORY: Is that your view for women in America? Is that your vision for them?

REP. BACHMANN: Well, I--during the debate I was asked a question about this, and my response was is that submission, that word, means respect. It means that I respect my husband and he respects me.... We have a mutual partnership in our marriage, and that's the only way that we could accomplish what we've done in life is to be a good team....

MR. GREGORY: To what extent does your relationship with God mean that you take cues from God for decisions that you make and that you would make as president....

REP. BACHMANN: Well, as president of the United States, I would pray. I would pray and ask the Lord for guidance. That's what presidents have done throughout history. George Washington did. Abraham Lincoln did.

MR. GREGORY: But you said that ... God called me to run for Congress.... There's a difference between God as a sense of comfort and safe harbor and inspiration, and God telling you to take a particular action.

REP. BACHMANN: All I can tell you is what my experience has been. I'm extremely grateful to, to have a faith in God. I, I see that God has so blessed this country.... And I think that it's important for us to seek his guidance and to pray and to listen to his voice.

MR. GREGORY: Would you appoint an openly atheist person to be a member of your administration, your Cabinet or even as a judge to a court?

REP. BACHMANN: Well, my criteria, would be first of all, "How do you view the Constitution?" If you uphold the Constitution, if you're competent, and if you're--if you, if you share my views, then you can get appointed. That's my litmus test....

MR. GREGORY: OK. I want to also ask you about your interpretation of the Bible and your feelings about gays and lesbians.... 

REP. BACHMANN: Well, I am running for the presidency of the United States. I'm not running to be anyone's judge.... I believe that marriage is between a man and a woman. And that's what I stand for. But I ascribe honor and dignity to every person no matter what their background. They have honor and they have dignity....

MR. GREGORY: Would you appoint a gay, an openly gay person, to your administration, to your Cabinet, or name them as a judge?
REP. BACHMANN: My criteria would be the same for that... where do you stand on the Constitution, are you competent, and do you share my views. That's my criteria....

MR. GREGORY: One last one on this. Can a gay couple ... who adopt children in your mind be considered a family?

REP. BACHMANN: When it comes to marriage and family, my opinion is that marriage is between a man and a woman. And I think that's, that's been my view, and I think that's important.... You know, all of these kind of questions really aren't about what people are concerned about right now.... 

Washington State Denies Permit For Baptism Ceremony At State Capitol Park

In Olympia, Washington, Heritage Park is a 24-acre state-owned park next to the state capitol campus.  The state will issue permits for events to be held at the park.  Today's Bellingham (WA) Herald reports that the state's Department of General Administration has given Reality Church of Olympia a permit for a barbecue and picnic to be held today, but has denied its request to conduct a baptism along with the event.  The Department, deciding an appeal of an initial denial, said that the state constitution bars the use of public property for religious worship. The church had argued that its free speech and free exercise rights were infringed by the denial.

Recent Prisoner Free Exercise Cases

In Creveling v. Johnson, 2011 U.S. Dist. LEXIS 86648 (D NJ, Aug. 4, 2011), a New Jersey federal district court held that plaintiff, who was involuntarily committed as a sexually violent predator, could move ahead with a free exercise claim. He claims he is entitled to weekly church services, bible study and confession, as well as rosaries every day, but has only been allowed to attend church once every two-three weeks.

In Rogers v. United States, 2011 U.S. Dist. LEXIS 83336 (WD PA, July 29, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 86921, June 17, 2011), and dismissed an inmate's complaint that he was denied Halal meat for the Eid-ul-Adha celebration in 2006. The court found defendants had qualified immunity and rejected plaintiff's retaliation claim. It also rejected a retaliation claim regarding prayer oil pricing.

In Ellis v. United States, 2011 U.S. Dist. LEXIS 83833 (WD PA, Aug. 1, 2011), a Pennsylvania federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 86927, June 17, 2011) and permitted a former Sunni Muslim inmate to move ahead with his retaliation claim against certain defendants in which he claimed that his name was wrongfully omitted from call out lists for the 2006 Eid celebration and the Jumu'ah prayer services during 3 months. Various other claims, including one relating to Halal meat for the Eid celebration, were dismissed.

In Sykes v. Williams, 2011 U.S. Dist. LEXIS 87835 (D SC, Aug. 8, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87777, July 13, 2011) and dismissed a Muslim inmate's claims that his religious rights were infringed when he was served porkwhile in detention.

In Gailbreath v. Covert, 2011 U.S. Dist. LEXIS 88095 (WD PA, July 20, 2011), a Pennsylvania federal magistrate judge recommended dismissal of a Muslim inmate's claims that he was prevented from properly practicing his faith when he was denied a vegetarian diet.

In Mitchell v. Dauphin County Commissioners, 2011 U.S. Dist. LEXIS 87901 (MD PA, Aug. 9, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87903, July 18, 2011) and dismissed an inmate's free exercise claims without prejudice because plaintiff had failed to exhaust his administrative remedies. In the suit, plaintiff challenged the prison's policy prohibiting inmates from officially changing religions after being confined more than ten days, the prison's inadequate supply of common Mormon scriptures, and the prison chaplain's distribution of reading materials that promoted Christianity and allegedly defamed other religions.

In Lewis v. Skolnik, 2011 U.S. Dist. LEXIS 88950 (D NV, Aug. 10, 2011), a Nevada federal district court  permitted an inmate who is an African-American Hebrew Israelite to move ahead with his challenge to a prison policy that limits kosher meals to inmates who can prove through a recognized, outside organization that they are Orthodox or Conservative Jews. He alleged that the policy violated his free exercise and RLUIPA rights and that its implementation was discriminatory against African Americans.

In Sumpter-Bey v. Weatherford, 2011 U.S. Dist. LEXIS 88647 (MD TN, Aug. 9, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that a Seventh Day Adventist representative was preaching in the day room in his pod. The magistrate also recommended dismissal of plaintiff's claim that officials threatened to retaliate by moving him to administrative segregation after he filed a second grievance about the preaching.

In Montague v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 88362 (MD TN, Aug. 8, 2011), a Tennessee federal magistrate judge recommended dismissing an inmate's complaint that prison officials will not allow Muslim prisoners to order outside food and to pool their money to celebrate Eid ul-Fitr and Eid Adha.

In Burgie v. Golden, 2011 U.S. Dist. LEXIS 88895 (ED AR, Aug. 9, 2011), an Arkansas federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 88603, July 14, 2011), and dismissed  an inmate's complaint under RLUIPA that authorities confiscated his copy of "The Complete Book of Voodoo" and forwarded it to the prison's Publication Review Committee.

In Countryman v. Nevada, 2011 U.S. Dist. LEXIS 88583 (D NV, Aug. 8, 2011), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 88357, June 27, 2011) and dismissed without prejudice, for failure to exhaust administrative remedies, an inmate's complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was precluded from attending church services while in protective segregation.

Arkansas Buses Must Carry Non-Believers' Ads; But $15,000 Bond Required

An Arkansas federal district judge on Thursday issued a preliminary injunction requiring the Central Arkansas Transit Authority to allow the United Coalition of Reason (UCR) to purchase ads on the outside of 18 public buses. However UCR will be required to post a $15,000 bond to cover damage that may result from vandalism to the buses. The ads read: "Are you good without God? Millions are." The advertising agency involved had demanded a higher bond, while UCR had offered to post a $10,000 bond. AP as well as the Daily Caller report on the decision. Meanwhile, according to the Christian Post, Christians in the community are creating their own series of ads to run on buses, and they say they will picket any bus carrying the non-believers' ads.  Bill Wheeler, a Christian leader in Little Rock, said: "We are planning to create a newsletter and start gathering our resources to fight ads that create chaos in our society. These ads have nothing to do with free speech. It has to do with corruption and pure evil." [Thanks to Scott Mange for the lead.]

Court Invalidates Colorado County School Voucher Plan On State Constitutional Grounds

According to AP, yesterday a Colorado state court granted a permanent injunction against implementation of a Douglas County (CO) Board of Education school voucher plan that would have given 500 students scholarships to apply to tuition at participating private school partners. Most of the partner schools were sectarian and most were located outside the school district. (See prior posting.) The voucher plan enrolls scholarship recipients in a new Choice Scholarship Charter School for pupil counting purposes in order to continue to receive state funds.  In Larue v. Colorado Board of Education, (CO Dist. Ct., Aug. 13, 2011), the trial court, after finding that plaintiffs had standing, held that the voucher program violates a number of state constitutional provisions and the Public School Finance Act, as well as finding that the state contracting statute does not give school boards the power to contract with private schools to provide all a student's educational services.

The court concluded that the voucher program violates a state constitutional prohibition on state funds for sectarian schools, the state's free exercise clause, the ban on religious admissions criteria,ban  on requirements to attend religious services and ban on teaching of sectarian doctrines in public schools. The voucher program also was found to violate state constitutional provisions on the integrity of the public school fund.

Group Posts Critical Review of Gov. Perry's Prayer Rally

Jews On First yesterday posted an extensive and critical report on the content of Texas Gov. Rick Perry's The Response: A Call To Prayer for a Nation in Crisis held last Saturday. (See prior posting.) Their report says in part:

Blatant and repeated calls for Jews to accept Jesus punctuated Texas Governor Rick Perry’s Response revival meeting this past weekend. Indeed, last Saturday’s replay of the historic Christian preoccupation with the redemption of the world through Jewish conversion was in many respects a microcosm of what the event was about -- the coming together of different traditions to submit to Jesus, in an attempt to redeem not only the United States, but the world, through Jesus.... 

The day was split between four main prayer segments: personal repentance; corporate repentance; the First Commandment; and prayer for revival in America.

Throughout each of these four segments, speakers spoke only briefly (seven minutes each) while worship music and repetitive prayer (this was called "rapid fire prayer" where a microphone was passed down a line of usually four or five people who gave an emotional plea to Jesus for about thirty seconds each) filled in the rest of the seven-hour rally. Dominant themes included: repentance for abortion and an avowal to end it in America; the need to get America's finances in order; the need for leaders to submit to the authority of Jesus if they are to steer the country back on its right path; and the need for a third Great Awakening that would storm all levels of the public sphere....

Perry not only acknowledged Jesus' control over everything but also aligned himself with a submission to His will for the country and the world. This is something that evangelical voters see as essential for an elected official, in order to make sure that the government makes decisions based on divinely inspired principles -- unlike liberals in general who are construed as being guided by "manmade" principles and what is considered the erroneous belief that human principles can solve the nation's problems.

Croatia Blocks Vatican Decision To Transfer Monastery To Italian Benedictines

CNA reported yesterday that Croatia's Ministry for Justice has blocked a decision by the Vatican to return the monastery of Dajla, in northwest Croatia, to the Italian Benedictines.  The monastery is located in an area seized from Italy by Yugoslavia following World War II.  The Vatican ruled earlier this month that the monastery should be transferred along with 6 million Euros in compensation. Croatia has blocked the transfer and annulled the entire agreement. The Vatican says it is astonished by the decision. The Italian Benedictines already received $1.2 million (US) in compensation in 1975 under the Treaty of Osimo that dealt with the Italian- Yugoslav border. [Thanks to Pew Sitter for the lead.]

Georgian Orthodox and Armenian Apostolic Churches Dispute Property Ownership Across Borders

Eurasia Review yesterday reports on the religious tensions between the countries of Armenia and Georgia over the ownership of various monasteries and churches.  The Georgian Orthodox Church claims ownership of five monasteries in Armenia that functioned as Georgian Orthodox monasteries in the 11th and 12th centuries.  However the Armenian Apostolic Church says that the monasteries were originally built as Armenian Orthodox churches, and that there are only 600 ethnic Georgians living in Armenia today.  Meanwhile, the Armenian Apostolic Church claims six churches in Georgia serving ethnic Armenians. (See prior related posting.)

Settlement Reached In Christian Legal Society's Suit Against Montana Law School

A settlement agreement (full text) was reached last week in Christian Legal Society v. Eck, a case challenging the University of Montana Law School's denial of recognition as a student group to Christian Legal Society because the group's membership policies violate the Student Bar Association's policy that recognized student groups must be open to all law students. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. In 2009, a federal district court upheld the law school's policy as viewpoint neutral. (See prior posting.) That decision was on appeal to the 9th Circuit. (See  prior posting).

Under the settlement agreement, CLS will continue to be able to use law school facilities, including use of the law school's website and bulletin boards to communicate with students.  The Student Bar Association agrees to apply specified viewpoint neutral criteria in preparing its budgets for funding of student organizations. Pursuant to the agreement, appellants on Wednesday moved to voluntarily dismiss their 9th Circuit appeal. Yesterday's Chronicle of Higher Education reports on the decision.

ROTC Values Training Includes Christian Examples

CNN reports that the Air Force's unit on core values taught to ROTC cadets includes Christian-themed examples.  The Ten Commandments, the Sermon on the Mount and the Golden Rule are used as examples of ethical values. This follows disclosures last month of the use of Christian "just war" theories in training of missile officers. (See prior posting.) According to CNN, a spokesman for the Air Force's Air Education and Training Command confirmed the content of the ROTC ethics training and said a comprehensive review was underway "of training materials that address morals, ethics, core values and related character development issues to ensure appropriate and balanced use of all religious and secular source material."

Obama Hosts White House Iftar Dinner

CNN reports that President Obama last night hosted an Iftar dinner at the White House, celebrating Ramadan. Among the invited guests were Muslim families who had relatives working in the Twin Towers on 9-11.  Obama spoke of Muslims who were innocent passengers killed on the planes that slammed into the World Trade Center and the Pentagon, and of those who were 9-11 first responders. Earlier yesterday the White House released a list of some of the members of Congress and the diplomatic corps, as well as community members who were expected to attend the dinner.

Will Jeffs Control FLDS Church From Prison?

An AP article suggests that FLDS leader Warren Jeffs may be able to continue to lead his church from behind bars now that he has been sentenced to life in prison on sexual assault charges. Jeffs legal status as head of the church was reaffirmed last week by the Utah Department of Commerce. The Washington Post (Aug. 3) reported that in May the Department, by a split ruling, rejected filings by Jeffs' challenger, William E. Jessop, who claimed he was head of the Corporation of the Presiding Bishop, the entity which holds the assets of the church (see prior posting). The Department gave Jessop until last week to provide a resolution or court order settling the dispute.  Nothing was filed and the Department of Commerce said it will recognize Jeffs as president of the Corporation.

Egyptian Government Proposes Anti-Discrimination Law

Voice of America reported yesterday that Egypt's government has proposed an amendment to its criminal code that would outlaw discrimination against people or a sect "due to gender, origin, language, religion or belief."  Violation would be punishable by a jail sentence of at least 3 months. The new law is aimed at  preventing attacks on the country's minority Coptic Christians. The military must approve the law before it goes into effect.

Suit Challenges Florida's New System For Review of Textbooks

The Florida Independent reports that a group known as Citizens for National Security announced that they were filing suit yesterday in Florida state court to enjoin the effectiveness of Florida S.B. 2120 which, among other things (Sec. 21), calls for two state or national experts to review instructional materials that are up for adoption each year. A third expert is to resolve disagreements between the two.  The complaint (full text) alleges that this provision conflicts with the mandate in the state constitution to provide for a high quality system of schools:

15. It is not possible for two people to review all the textbooks in Florida within a 4 month period of time and thus Senate Bill 2120 renders it impossible for the Defendants to provide high quality education to all children in Florida as required by law....

17. The present danger of fundamentalist religion is often obscured, the negative influence of fundamentalism is downplayed and the teaching of one of the greatest scientific breakthroughs of all times, i.e. "evolution" is often ignored, questioned or denied due to the failure of this State to properly monitor its textbooks.

18. Rather than fix the problem, Senate Bill 2120 exacerbates the problem and renders it impossible for any meaningful review of textbooks to take place, and all but assures that the education of the students of Florida will be inaccurate, biased and substandard.

19. Prior to the enactment of SB 2120, Plaintiff CFNS had nominated close to 30 highly qualified lay citizens consisting of teachers, former teachers, education professionals and well educated citizens to serve on the State Instructional Materials Committee to review the textbooks to be used by the students of Florida. With the enactment of SB 2120, none of these nominees will have an opportunity to serve in this capacity and instead only 2 or 3 so-called experts who are hand-picked by Defendant FDOE will review all textbooks used in Florida.

Ministerial Exception Defense Rejected In Racial Discrimination Suit By Administrative Assistant

A North Carolina federal district court has rejected a religious organization's "ministerial exception" defense in a Title VII racial discrimination case brought by a former administrative assistant in the group's Global Ministries office.  In McCallum v. Billy Graham Evangelistic Association, 2011 U.S. Dist. LEXIS 86997 (WD NC, Aug. 5, 2011),  the court held that the former employee who was the only African American in the organization's executive offices could move ahead with a discrimination claim based on a downsizing that eliminated only her job and which came after she complained that African American congregations were not being invited to participate in a summer camp youth program.

At this stage of the proceedings, BGEA has not demonstrated that the Church Autonomy Doctrine bars Plaintiff's lawsuit or that McCallum's former job as an Administrative Assistant in Global Ministries falls within the ministerial exception. Here, McCallum's position did not entail traditional ministerial functions such as teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. Nothing in the record suggests that McCallum had decisionmaking authority or substantive input regarding the content of BGEA's religious message, the delivery or expression of the message, or its intended audience.... McCallum's primary function was to provide administrative or clerical support....

 Although the Court holds that Plaintiff was not in a ministerial role... McCallum's claim, is likely to pose the very type of entanglement issue that the Church Autonomy Doctrine and ministerial exception seek to avoid.... [It will] necessarily call into question BGEA's outreach decisions.... As a practical matter, the Court contemplates that as the case proceeds there will be certain doctrinal topics that will, in fact, remain "off-limits."

The court, however, dismissed plaintiff's second claim in the lawsuit-- Title VII retaliation.  The court held that the alleged retaliation was in response to plaintiff's questioning the organization's summer camp invitee list, not in response to her opposing an employment practice, as required by Title VII.

Enforcement of Zoning Code Does Not Amount To Conspiracy To Infringe Free Exercise Rights

In Salman v. City of Phoenix, 2011 U.S. Dist. LEXIS 86984 (D AZ, Aug. 5, 2011), an Arizona federal district court dismissed a suit that had been brought by a couple who were born-again Christians who alleged that the city of Phoenix and certain city officials and employees had conspired to deprive them of their rights to the free exercise  of religion.  The claims grew out of the city's execution of a search warrant, other enforcement activities and prosecution of plaintiffs for various building and zoning code violations.  Plaintiffs were using their home and an adjacent building for religious services which 40 to 50 people attended, and displayed in their yard of a reader board containing Biblical verses. The court concluded that:

Plaintiffs' allegations describe only defendants' repeated efforts to enforce the law, in accordance with the responsibilities of their employment. Such actions alone cannot constitute an agreement to deprive plaintiffs of their legal rights. In the absence of any allegations of an actual agreement, plaintiffs' claim for civil conspiracy fails as a matter of law.

Fired Employee, Believer In Theosophy, Sues Over Retaliation, Complaints About Yarmulke

Yesterday's New York Post reports on a religious discrimination lawsuit filed in New York federal district court against the consulting firm McKinsey & Co. by a former employee who says he was fired after going to the police to complain about threats he received for going to the company's Human Resources department. In the lawsuit, Ciro Rosselli alleges that problems began when he wore a yarmulke to work as an expression of his practice of "theosophy", a movement that finds truth in all religions.  He was subjected to a stream of taunts by fellow-employees and his supervisors. For example, his boss sent him an e-mail comparing him to Kabbala admirer Madonna.

Philippine Cultural Center Closes Exhibit Offensive To Christians

In the Philippine capital of Manila, the board of the government-run Cultural Centre of the Philippines has closed down an exhibit that included works by local artist Mideo Cruz which Christians found highly offensive.  AFP reports that the exhibit, which opened June 7, included a Cruz poster of Jesus with a wooden penis glued to his face, a cross made of discarded wood with a penis attached, and Jesus with a red clown nose and Mickey Mouse ears.  The closure comes after a group of Christian lawyers said it was filing charges with the government ombudsman accusing the Centre's management with violating the law against "immoral doctrines that violate religion." It also wants those responsible for the exhibit suspended or fired. Philippine president Benigno Aquino says he called the Centre and told the staff he was opposed to the exhibit.  The Centre board said it had received an increasing number of threats to person and property over the exhibit.

New Study Shows Increasing World Restrictions On Religion

The Pew Forum on Religion and Public Life yesterday released a new report on the rising restrictions on religion around the world. The report (full text) uses both a government restrictions index and a social hostilities index in examining restrictions on religious beliefs and practices. The report concludes:

Restrictions on religious beliefs and practices rose between mid-2006 and mid-2009 in 23 of the world’s 198 countries (12%), decreased in 12 countries (6%) and remained essentially unchanged in 163 countries (82%)....

Because several countries with increasing restrictions on religion are very populous, however, the increases affected a much larger share of people than of states. More than 2.2 billion people – nearly a third (32%) of the world’s total population of 6.9 billion – live in countries where either government restrictions on religion or social hostilities involving religion rose substantially over the three-year period studied. Only about 1% of the world’s population lives in countries where government restrictions or social hostilities declined.

Christian Century summarizes the report.

Jeffs Receives Life In Prison

[Updated] CBS and CNN report that FLDS leader Warren Jeffs was sentenced to life imprisonment today in his sexual assault trial. The jury imposed the life sentence on one count of aggravated sexual assault and an additional 20 years in prison and a $10,000 fine on a charge of sexual assault. These were the maximum sentences available on each count. The victims were underage girls that Jeffs took as his "spiritual wives."  The Texas jury deliberated for less than half an hour in the penalty phase of the trial. (See prior related posting.)

Free Exercise Claim In Tax Exemption Dispute Moves Forward

Michael v. Letchinger, 2011 U.S. Dist. LEXIS 86685 (ND IL, Aug. 5, 2011), involves zoning and tax disputes between George and Susan Michael and the village of Lake Bluff, Illinois.  The Michael's converted a portion of their expensive lake front home into what they claimed was an Armenian Orthodox Church, because Susan's health made it difficult for her to travel to an existing church in Chicago. They transferred ownership to a new religious corporation they created.  They then initially convinced the state of Illinois to grant a religious property tax exemption for their home. (See prior posting.)  The complaint alleges that village officials then began a campaign to drive the Church out of existence and reverse the tax exemption. The exemption was reversed, and the exemption denial was upheld by the Illinois courts.  This federal court lawsuit seeks $10.5 million damages for the actions of village and state officials. The court dismissed most of plaintiffs' claims, but permitted them to proceed on their claim that their free exercise rights were violated by the discriminatory enforcement of zoning and building codes against them. They claim that the enforcement was motivated by animus against the Armenian Orthodox Church.

Summum Discussing Offering Released Time Program In Utah

In Utah, according to yesterday's Salt Lake Tribune, it is common for high school students to take advantage of the state's released time program to enroll in LDS seminary classes that are offered in LDS Church-owned buildings near public high schools. Last year over half of Utah's high school students were enrolled in LDS seminary classes. The Canyons (UT) school district is building a new $55 million high school, and an adjacent parcel of land has long been designated as "seminary" on architectural plans with school board officials assuming it would be used by a religious organization of a released-time program. The LDS Church has expressed some interest in buying the land. Now, however, the Summum movement has inquired about purchasing the land to build its first seminary.  It wants to use the seminary for a released time program that teaches "the principles of the universe."

UPDATE: The Salt Lake Tribune (Aug. 17) reports that the Canyons school board has decided not to sell the land to anyone for a seminary.

In Nigeria, Christians Planning Non-Interest Banking To Parallel Islamic Finance

Last year, the Central Bank of Nigeria created controversy when it issued guidelines for Shariah-compliant financial institutions. (See prior posting.) Now, according to The Moment yesterday, Christian groups in Nigeria that have unsuccessfully attempted to get the Central Bank to withdraw its guidelines are taking a new approach. They are planning to apply for a license to operate a non-interest bearing bank that would operate according to Christian principles. This is seen as a test of the Central Bank's pledge that other groups seeking to create non-interest institutions would be given the same attention as Islamic banks, and that the Central Bank would issue guidelines for those institutions as well.

Canadian Judge Rejects Biblical Verses As Defense To Assault Charges

In the Canadian city of Halifax, Nova Scotia, a provincial judge has convicted Cornelius Jones on a number of counts of assault, as well as of uttering threats, resisting arrest and failing to appear in court.  Yesterday's Halifax Chronicle Herald , as well as CBC News, report that Jones, representing himself, defended against the charges of assaulting his wife and his 3-year old daughter by quoting Biblical verses that he says call for wives to submit to their husbands, and for disciplining children with the rod.  The judge urged Jones to retain counsel to represent him at the sentencing stage, telling Jones: "If Jesus Christ was here I would be recommending that he have a lawyer." Jones' brother told the court that he believes Jones needs psychiatric held, but says Jones has refused help from his family.

Jehovah's Witness Loses Malpractice Suit Complaining About Life-Saving Blood Transfusion

In DiGeronimo v. Fuchs, (NY S.Ct. Richmond Cty., Aug. 4, 2011), a New York trial court dismissed a medical malpractice claim brought against a doctor who saved a woman's life by giving her a blood transfusion. Plaintiff, a Jehovah's Witness, objected on religious grounds to the transfusion which became necessary due to complications after she delivered a child.  Her husband signed a consent for the transfusion when he was advised that without it his wife would die.  The court held:

there is no precedent for finding medical malpractice when a blood transfusion was the proximate cause of saving a life. Here, the plaintiff may be offended or even emotionally distressed that another person's blood was transfused into her body, which is apparently not in keeping with her beliefs as a Jehovah's Witness. Notwithstanding the fact that the plaintiff's husband, another Jehovah's Witness who was her health care proxy, signed a consent for the transfusion, the plaintiff's emotional distress concerning the blood transfusion does not rise to the level of an injury, as that term is used as an element of a medical malpractice action.

.... Since the plaintiff's transfusion saved her life, this action is analogous to one for "wrongful life" against the doctor. However, there is no cause of action for "wrongful life" in the State of New York.

 SI Live reports on the decision.

Indian Court Tells Counsel To Read Gita Before Arguing Case

In the Indian state of Madhya Pradesh, the government has ordered schools to incorporate "Gita Sar"-- the essence of Gita-- into the curriculum. According to yesterday's  Indian Express, the Catholic Bishops Council last month filed suit asking the Madhya Pradesh high court to order the government to instead include a summary of all religions in the curriculum, and not to favor a particular faith.  Plaintiffs argued that giving other religions equal prominence with Hinduism conforms to the Constitutional idea of a secular India.  Last week, the court issued an order instructing plaintiff's counsel to take two months to read the entire Gita before arguing the case so that counsel can "clearly understand whether the Gita is a philosophy of life or is associated with any religion."

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.