Senator Objects To Army's Suspension of "Just War" Instruction

As previously reported, after complaints surfaced in July, the Air Force removed from its training module for missile officers a mandatory session led by chaplains discussing St. Augustine's Just War Theory. Now Texas Sen. John Cornyn has written the Secretary of the Air Force (full text of letter) expressing concern that the instruction has been suspended.  He wrote in part:

Our military services, like our nation, are comprised of people representing all faiths.

However, that fact does not preclude military chaplains from teaching a course on just war theory – a theory that has been a part of moral philosophy and the law of war for centuries – merely because it has historically been predicated on religious texts.

Moreover, suspending a course like this because of references to religious texts misinterprets the First Amendment. Although our Founding Fathers rightly included language in the Constitution that precludes the Federal government from establishing an official religion, this language does not, as some have argued, protect them from exposure to religious references. 

Newspaper Is Critical of Amounts Paid To Head of Christian Non-Profit Group

Sunday's Tennessean carries an investigative story profiling Jay Sekulow, head of the American Center for Law and Justice.  The piece focuses on large amounts paid to Sekulow and his family from ACLJ and a second charity also headed by Sekulow.  Here is an excerpt:

Sekulow, a celebrity among conservative Christians, now sits as the principal officer of two closely related multimillion-dollar legal charities: Christian Advocates Serving Evangelism, which he founded in San Francisco, and the better-known American Center for Law and Justice, founded by Christian broadcaster Pat Robertson and based in Virginia Beach....

Along with its spiritual benefits, Sekulow’s new calling has come with significant financial benefits.

Since 1998, the two charities have paid out more than $33 million to members of Sekulow’s family and businesses they own or co-own, according to the charities’ federal tax returns, known as form 990s.

One of the charities is controlled by the Sekulow family — tax documents show that all four of CASE’s board members are Sekulows and another is an officer — an arrangement criticized by a nonprofit watchdog group.

Orthodox Church In Abkhazia Fragments

Yesterday's Moscow Times reports on the growing fragmentation in the Orthodox Church in Abkhazia, the break away republic that is trying to obtain international recognition as a nation separate from the nation of Georgia. In 2009, the Sukhumi-Abkhazian Eparch split from the Georgian Orthodox Church and declared itself  to be the Abkhazian Orthodox Church, a continuation of  the Catholicate of Abkhazia which was disbanded in 1795. (Background). However on May 15 this year, a group of clergy and laymen declared a competing new Abkhaz church that would use the Abkhaz language in liturgy and would be independent of the Moscow patriarchate. They want the ecumenical patriarch in Istanbul to oversee the new Abkhaz church.

Saudi Scholars Threaten To Sue Astronomer Who Questioned Date For End of Ramadan

Arab News reported Saturday that in Saudi Arabia, a number of conservative scholars have threatened to sue scientist-astronomer Khaled Al-Zaaq for questioning the testimony of those who say they sighted the new moon ending Ramadan on August 29.  The Hilal (crescent moon) panel accepted their testimony and declared the end of the Ramadan fast on that day.  Al-Zaaq claims that the moon could not have been sighted on the 29th because it had eclipsed before sunset. The Grand Mufti in his Friday sermon in Riyadh said that those who question the witnesses' veracity were "motivated and deviated people with foul mouths."

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, Islamic Headscarves, Religious Pluralism, and Secular Human Rights, (International Consortium for Law and Religion Studies Conference, Santiago, Chile, September 2011).
• Zachary R. Calo, Human Dignity and Health Law: Personhood in Recent Bioethical Debate, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Robert J. Miller, The International Law of Colonialism: A Comparative Analysis, (August 30, 2011).
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, (Brigham Young University Education and Law Journal, pp. 547-569, 2011).
• Howard Kislowicz, Judging the Rules of Belonging, (U.B.C. Law Review, Vol. 44, No. 2, p. 287, 2011).
• Zachary R. Calo, Catholicism, Liberalism and Human Rights, (Journal of Christian Legal Thought, Forthcoming).
• Lorin C. Geitner, Westboro Baptist and the Limits of Religious Speech, (Orange County Lawyer, Forthcoming).
• Victor M. Muniz-Fraticelli, The Distinctiveness of Religious Liberty, (July 29, 2011).
• Douglas E. Abrams, Reason and Passion: Justice Jackson and the Second Flag Salute Case (Part I), (Precedent, Vol. 5, No. 3, pp. 22-26, Summer 2011).
• Steve Sanders, The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages that Cross State Lines, Even if Conflict of Laws Cannot, (August 24, 2011).

From SmartCILP and elsewhere:

• Vol. 26, No.2, Journal of Law and Religion has recently appeared.
• Sept./Oct. 2011 issue of Liberty: A Magazine of Religious Freedom has recently appeared.

Recent Prisoner Free Exercise Cases

In Burnett v. Jones, (10th Cir., Aug. 31, 2011), the 10th Circuit Court of Appeals rejected an inmate's claim that his free exercise rights were violated when the prison was in lock down during Hanukkah and Christmas, denying him the opportunity to gather with other members of his faith to celebrate those holidays.

In Phillips v. Roy, 2011 U.S. Dist. LEXIS 96615 (ND NY, Aug. 29, 2011), a New York federal district court permitted a Native American inmate to move ahead with his complaint that he was not permitted to participate in religious ceremonies. However it dismissed his complaint that a response to his request to order herbs was ignored for a substantial period of time and he was not permitted to purchase matches or a lighter so he could burn the herbs for smudging. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 143651, Sept. 27, 2010.

In Lee v. Clarke, 2011 U.S. Dist. LEXIS 96757 (ED VA, Aug. 29, 2011), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's free exercise and RLUIPA claims objecting to a one-month cancellation of Juma prayers and restrictions on prayer during, and bringing a Qur'an to, in-pod recreation. Some claims were dismissed with prejudice, and other without prejudice.

In Venegas v. Swathout, 2011 U.S. Dist. LEXIS 96321 (ED CA, Aug. 26, 2011), a California federal magistrate dismissed, with leave to amend, an inmate's challenge to denial of parole.  He claimed that the Board of Parole Hearings required him to attend religiously based AA or NA programs. However the court concluded that it appears petitioner had some element of choice that would have allowed him to attend a non-religious substance abuse program.

In Treesh v. Bobb-Itt, 2011 U.S. Dist. LEXIS 97090 (SD OH, Aug. 29, 2011), an Ohio federal district court dismissed claims by a Native American inmate that his rights were violated when he was not permitted to wear headgear with feathers at all times, but only during Native American religious ceremonies. The court also dismissed plaintiff's claims regarding missing personal property, including items used in religious ceremonies.

In Lefler v. Allen Correctional Center, 2011 U.S. Dist. LEXIS 97186 (WD LA, Aug. 29, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 97305, July 18, 2011) and dismissed complaints by a Wiccan inmate that the coordinator of the prison's faith based program stopped him from sharing information about his pagan beliefs with others in the program.

In Harris v. Skolnik, 2011 U.S. Dist. LEXIS 97695 (D NV, Aug. 29, 2011), a Nevada federal magistrate judge permitted an inmate to move ahead with his claim that by denying him a kosher diet unless his Jewish faith was verified by the Aleph Institute, authorities violated his rights under the free exercise, establishment and equal protection clauses as well as his rights under RLUIPA. The court also permitted him to move ahead with a 1st Amendment retaliation claim.

In Ascencio v. Shane, 2011 U.S. Dist. LEXIS 98092 (ND OH, Aug. 31, 2011), an Ohio federal district court dismissed an inmate's free exercise objections to authorities' confiscating a Spanish language religious motivational message sent to him. Prison policy bars inmates who speak English from receiving correspondence written in foreign languages.

In Cotton v. Cate, 2011 U.S. Dist. LEXIS 98766 (ND CA, Aug. 30, 2010), a California federal district court denied defendants' motion for summary judgment in a suit by an inmate who is an adherent of the Shetaut Neter religion who was seeking a Kemetic (raw vegan-organic) diet. The court concluded that various factual questions remain in dispute.

In Gonzales v. Adams, 2011 U.S. Dist. LEXIS 97706 (WD OK, Aug. 31, 2011), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 98310, Aug. 9, 2011) and dismissed an inmate's complaint that his request to be furnished a Catholic Bible while he was in administrative segregation was denied.

Vatican Responds To Ireland's Criticism of Its Role In Failure To Report Clergy Abuse

Today's New York Times reports on a statement issued by the Vatican on Saturday responding to allegations leveled in July by the Irish government that the Vatican discouraged Irish bishops from reporting clergy sexual abuse of minors to police. (See prior posting.)  The Vatican's response (full text) to Ireland's Cloyne Report, and to follow-up statements by Ireland's Prime Minister and Parliament, says that the Cloyne Report misinterpreted, through a lack of context, a key letter from the Apostolic Nuncio which seemed to downplay the importance of a Vatican document on how to handle clergy abuse allegations.

Court Rejects Religious Use of Marijuana For Drug Dealer On Supervised Release

In United States v. Lafley, (9th Cir., Sept. 1, 2011), the U.S. 9th Circuit Court of Appeals held that a federal district court did not violate the Religious Freedom Restoration Act when it imposed as a condition of supervised release the requirement that a convicted methamphetamine dealer not possess or use controlled substances, including marijuana. Defendant, who had joined the Montana Cannabis Ministries, argued that he is entitled to an exemption from this standard term of supervised release. The court concluded, however, that the government has a compelling interest in preventing a convicted drug felon from using drugs during his supervised release, and that the terms imposed are the least restrictive means of advancing that interest. It rejected as imposing too burdensome a monitoring requirement on probation officers defendant's claim that he should be allowed religious, but not recreational, use of marijuana.

Indian Government Drops Support For Law On Registering Sikh Marriages

According to The Link, India's government announced to Parliament this week that it is dropping a proposal long advocated by Sikhs to provide for separate registration of Sikh marriages. Legislation enacted in 1909 recognizes the validity of Sikh marriages, but provides no means of registering them. Registration must be effected either under the Hindu Marriage Act or the Special Marriage Act. Earlier this week, according to the Times of India, a U.S.-based Sikh advocacy group wrote the UN Special Rapporteur on Freedom of Religion or Belief seeking United Nations intervention to pressure India to pass an act for registration of Sikh marriages.

University Investigates Christian Student Group's Removal of Openly Gay Member

Baptist Press reported yesterday that the University of North Carolina-- Chapel Hill has started a discrimination investigation against "Psalm 100," a small student Christian a cappella musical group.  The group voted earlier this week to remove from membership Will Thomason, an openly gay student. University rules allow student groups to "limit membership and participation in the organization to students who ... support the organization's goals and agree with its beliefs." However the rules preclude excluding a student from membership because of sexual orientation. Psalm 100 says it removed Thomason because of his disagreement with the group's constitution that is based on biblical standards, not because of Thomason's sexual orientation. Psalm 100's general director said its decision was made out of love for Thomason, and Thomason says he continues to love all the members of the group.

Title VII Claim By Muslim Firefighter Partly Dismissed

In Ali v. District of Columbia Government, (D DC, Aug. 31, 2011), the U.S. District Court for the District of Columbia dismissed a Title VII employment discrimination claim brought by Tarick Ali, a Muslim firefighter/ emergency medical technician who had been employed by the D.C. Fire and Emergency Medical Services Department. However, the court permitted plaintiff (now Ali's personal representative because Ali had died) to proceed on a claim of retaliation.  Ali's problems began when he was late for a drill because he and a fellow Muslim firefighter had been praying, and his supervisor suggested that Ali may need to make a choice between his job and his religion.  However, the court concluded that because Ali suffered nothing more that criticism and threats, there had not been any adverse action against him. The court added, though, that while threats are not adverse action for purposes of a religious discrimination claim, they may be for a retaliation claim. Here Ali claimed that his superior threatened to fire Ali's co-worker, a fellow Muslim, if Ali pursued a discrimination complaint. Courthouse News Service reports on the decision.

Pastor Sentenced For Blocking Access While Proselytizing At Islamic Center

A state court trial judge in Wichita, Kansas has sentenced Wichita pastor Mark Holick after a jury last month convicted him on charges of loitering and disrupting a local business. The jury trial in the state district court came after an appeal from a Municipal Court conviction.  According to yesterday's Wichita Eagle, Holick, the pastor of Spirit One Christian Ministry, was arrested when he and a dozen followers went to Wichita's Islamic Center and attempted to hand out Bibles to Muslims arriving to celebrate Ramadan. Holick blocked access to the driveway at the Center and created a disturbance, marching in place when police ordered him to move to a public sidewalk. The court sentenced Holick to 12 months unsupervised probation, a fine of $300 and ordered him to stay at least 1000 fee away from the Islamic Center. During his sentencing hearing, Holic gave a 15 minute speech quoting Bible verses and invoking his 1st Amendment rights. Holick told the court: "I am not your enemy. Islam is. The Lord said there will be no other gods before me."

Perry Attempting To Win Support Of Religious Conservatives

The Los Angeles Times yesterday reported on Texas Gov. Rick Perry's efforts to win support of religious conservatives in his bid to become the Republican nominee for President. Last week end he participated in a two-day retreat with major evangelical leaders. Some 200 people attended the off-the-record meeting at  the ranch of San Antonio entrepreneur James Leininger, a major supporter of Perry.  Perry and his wife spent extended time with the Christian leaders, speaking candidly about his faith, including specifically about when he accepted Jesus as his savior. In response to a question, Perry said he would pick a pro-life running mate.

A Broad View of the Upcoming Supreme Court Term With A Law and Religion Perspective

The Supreme Court's new term begins Oct. 3.  Scotus Blog has a comprehensive listing (as well as extensive links to related documents) of all the cases which the Court has already agreed to review in the upcoming term. Of course the Court will grant cert. in more cases as the October term begins.  Here is a summary of cases the Court has already agreed to review which may be of particular interest to individuals concerned with religious liberty and church-state issues. One case clearly presents 1st Amendment religion issues. Several others may affect religious liberty claims, even though their facts do not directly present them.

Hosanna-Tabor Church v. EEOC is the clear religious liberty case.  At issue is whether the "ministerial exception" to federal employment discrimination laws applies to an ADA suit by a parochial school teacher who teaches mostly secular subjects.  For a somewhat different "take" on the case, readers may be interested in my recent article in Liberty magazine: Howard Friedman, An Issue of Church Autonomy: The Supreme Court Examines the Ministerial Exception Doctrine.

Minneci v. Pollard involves the question of when a federal court may imply a cause of action under the Constitution against an employee of a private company which contracts with the federal government to provide prison services. While not involved in the facts of this case, the outcome may impact the availability of free exercise claims against employees of private food service providers in prisons where inmates claim their religious dietary needs have not been met.

MBZ v. Clinton is of interest to many who follow religious liberty issues not because of the principles of law involved, but because it is a piece of the never-ending religio-political battle over the city of Jerusalem.  Congress passed a statute instructing the Secretary of State to permit U.S. citizens who were born in Jerusalem to list their birthplace on their passport and on their Consular Report of Birth Abroad, if they wished to do so, as "Israel."  This contradicts a State Department policy that instead calls for merely listing "Jerusalem" as the individual's birthplace. At issue is whether the Congressional statute infringes on the President's powers to recognized foreign governments, and whether the political question doctrine precludes courts from enforcing the statute.

Knox v. Service Employees International Union, Local 1000 involves the rights of state employees in states that permit state employee unions to charge an agency or service fee to non-union members. It is already established that unions may not collect from employees amounts that are to be used for political or ideological issues unrelated to collective bargaining. This may include union expenditures advocating issues to which state employees object on religious grounds. This case raises issues of the adequacy of notice given to state employees regarding fees assessed on them, as well as issues of whether expenditures to oppose anti-union ballot measures are related to collective bargaining.

Federal Communications Commission v. Fox Television Stations, Inc., involves the Federal Communications Commission's approach to enforcing a federal statute barring the broadcast of "indecent" language.  Many, of course, see religious, as well as constitutional, values at stake in this case. At issue is whether the approach taken by the FCC is unconstitutionally vague. The FCC decided that particular broadcasts involving expletives and nudity were indecent.

Britian's Charity Commission Issues New Guidance On Exceptions For Religious Charities

On Wednesday, Britain's Charity Commission announced the issuance of new, more detailed guidelines under the Equality Act 2010 clarifying when charities may restrict their benefits to persons on the basis of their religion, gender, age and various other protected characteristics.  The Guidance (full text) has special rules for charities that limit their benefits to members of a particular religion. A "religious or belief organization" can restrict membership, participation in their activities, the services they provide or use of their premises on the basis of a person's religion, belief or sexual orientation, if certain conditions are met.  This type of restriction may be imposed only to comply with the organization's doctrines, or to avoid conflict with the religious-based convictions of many of the organization's followers. However, these limitations may not be invoked by an organization that is wholly or mainly commercial.  Also, discrimination on the basis of sexual orientation is not permitted when an organization is providing a service on behalf of a public authority under contract with it. Yesterday's Guardian reported on the new Guidance document.

Court Removes Defrocked Episcopal Priest As Rector On Petition of Diocese

A Pennsylvania trial court last week held that conservative defrocked Episcopal priest David Moyer no longer has any right to serve as rector of Church of the Good Shepherd in Rosemont, Pennsylvania. The court similarly removed two vestry members who supported Moyer from their positions.  In In re The Church of the Good Shepherd Rosemont Pennsylvania Incorporated, (PA Com. Pl, Aug. 25, 2011), the court said:

On the sole question of whether or not the Diocese can ask this Court to force the respondents out of Good Shepherd, the answer is clear. Their eviction, literally and figuratively, is the will of the petitioning Standing Committee [the ecclesiastical authority of the Diocese] and Assisting Bishop.

Virtue Online has extensive background on the decision, which it calls "the final blow to the Anglo-Catholic rector [Moyer]," coming "after more than a decade of ecclesiastical infighting and lawsuits." Today's Philadelphia Inquirer also reported on the decision. (See prior related posting.) [Thanks to James Edward Maule via Religionlaw for the lead].

Court Orders No Town Board Saturday Discussion of Land Use Issue Impacting Jewish Group

In the town of Bethel, New York, a Satmar Hasidic group that was involved in a battle with the town in 2009 over construction of a synagogue is again at odds with town officials.  As reported by the Hudson Valley Times Herald Record in January, the Town Board voted in December, by a split vote, to extend the boundaries of the Kauneonga Lake Sewer District. This is the first step in plans by Kollel Averichim Torah Veyirah to tear down several old bungalows and build two multi-family housing units on a 5-acre parcel near their synagogue.  Some 87 residents filed a petition for a public referendum on the extension.  Subsequent developments are traced by the Narrowsburg, New York River Reporter yesterday. In May, a state court held that the referendum petition was filed after the required deadline.  Opponents then circulated a petition opposing the expansion and obtained some 200 signatures.  They proposed to present it to the Town Board at its August 27 meeting.  However, that meeting was scheduled for Saturday, which meant because of the Jewish Sabbath, Kollel members could not drive to the meeting, and if there, could not use microphones to present their views.  So the Kollel again went to court, and a state court judge issued an order prohibiting the Town Board from discussing the matter in any way at the Aug. 27 meeting. This, however, did not prevent one of the town's residents, during the public comment period, from reading the letter that was to accompany the petition.

At the board meeting, Councilperson Denise Frangipane did discuss the court order, complaining that the town did not choose to fight it.  She said: "We live in a secular society which respects all religions and the right of people to practice the religion of their choice freely. However, religious considerations do not overrule our civil legal structure."

Fights, Arrests At New York Amusement Park Over No-Hijabs On Rides

In Rye, New York, the Muslim-American Society planned an outing at Rye Playland amusement park on Tuesday night to celebrate Eid-al-Fitr, the end of Ramadan.  However, according to CNN, many of those attending did not know that the amusement park had a safety rule banning wearing of headgear on rides.  When a group of Muslim women were told they were not allowed on certain rides wearing their hijabs (headscarves), they began to argue with park employees. Some men came to the women's defense and a melee broke out. Before it was all over, police were called, 15 people were arrested, and two were charged with felony assault.

Indonesian Ministry Delays End of Ramadan By One Day After Observations of Moon

Ramadan came to an end Monday night, followed by the celebration of Eid-al-Fitr on Tuesday-- with one exception.  Voice of America reports that in Indonesia, the Ministry of religious Affairs announced that the Eid would not begin until Wednesday.  It concluded that the moon was still too low on the horizon on Monday night.  This surprised many who had planned for the Tuesday date. However, Indonesia's second-largest Islamic organization, Muhammadiyah, started Eid on Tuesday along with the rest of the Muslim world.

NY Court Enforces Forum Selection Clause In Suit Over Use of Vatican Library Images

In Magi XXI, Inc. v. Stato Della Citta Del Vaticano, 2011 U.S. Dist. LEXIS 94636 (ED NY, Aug. 24, 2011), a New York federal district court enforced identical forum selection clauses in seven sublicense agreements which gave plaintiff the right to use various images from the Vatican Library in producing and marketing candles, chocolate, confections, flowers, gift bags, stamps, wrapping paper, and fundraising materials. The clause required that any disagreements under the sublicense must "be resolved exclusively in the Sovereign State of Vatican City." Plaintiff's lawsuit, brought in New York, alleged fraud, negligence, breach of contract, unjust enrichment, and conversion, claiming defendants failed to provide access to artwork, manuscripts and other Vatican Library items. The court rejected a wide array of arguments against dismissing the case, including the contention that the Pope's role in the Vatican courts would prevent them from being a fair forum. AP reporting on the decision says plaintiff is likely to appeal.

Israeli Court Says Rabin Assassin Can Attend Torah Study Sessions In Prison

In Israel, Jerusalem's Central District Court yesterday ruled that Yigal Amir, who is serving a life sentence for the assassination of Prime Minister Yitzhak Rabin in 1995, may attend twice-weekly religious study sessions with a fellow prisoner next month. However officials are to monitor the sessions for any unusual conduct. Today's Jerusalem Post reports that this is a first step in considering easing of Amir's conditions of imprisonment. He has been in solitary confinement for 15 years. After the Israeli Supreme Court suggested in December that the state consider permitting Amir to spend some time with fellow prisoners, officials began considering the possibility of offering Amir a twice-a-week Torah study partner. They have only recently identified a possible suitable partner.  Prison officials do not want Amir integrated with certain groups of prisoner. The court will make a final decision regarding Amir's solitary confinement next month.

Judge Refuses To Reconsider Murfreesboro Mosque Ruling

The Tennessean and the Murfreesboro Daily News Journal report that a Tennessee state chancery court judge this week denied a motion to reconsider his decision handed down in May dismissing challenges (other than an open-meeting law challenge) to the Rutherford County Regional Planning Commission's approval of building plans for a controversial mosque in Murfreesboro, Tennessee.  (See prior posting). Chancellor Robert Corlew III wrote in part:

The allegations presented at the initial hearing include assertions that this structure will be used as a base to undermine our laws and our government, and perhaps even serve as a base for terrorist or military operations. Assuming for purpose of argument momentarily that such is true, were the Court to consider that after construction the Muslim congregation may begin to use the structure for terrorist activities, for example, as the Plaintiffs assert will occur, then it will be the duty of law enforcement personnel and codes enforcement personnel to halt the activities. The remedy, then, is that of halting the illegal activity and not resistance to the use of the land....

We have a duty equally to treat those whose religious beliefs are similar to the majority beliefs and to those whose beliefs are very different from the majority. If the zoning laws are too favorable to those seeking to build places of worship, then citizens should prevail upon their elected representatives to change those ordinances, but until they do the Court must apply those laws equally to Protestant Christians, Roman Catholics, Muslims, Buddhists and others.

New Jersey Requirement For Resident To Be On Retirement Home Board Violates Church's Associational Rights

In Wiley Mission, Inc. v. State of New Jersey Department of Community Affairs, 2011 U.S. Dist. LEXIS 96473 (D NJ, Aug. 25, 2011), a New Jersey federal district court enjoined the New Jersey Department of Community Affairs from enforcing a portion of the Continuing Care Retirement Community Regulation and Financial Disclosure Act against a church that operated a residential retirement facility (CCRC) as part of its ministry to the elderly.  The facility contains 137 independent-living residential units, 53 residential healthcare beds, and 67 skilled nursing beds. Only 14 of the current residents are members of the church.  New Jersey law (NJ Code 52:27D-345) requires that the board of directors of every CCRC to include one resident as a full voting member of its board.  The board member is to be nominated by the elected representatives of the residents.  The church's CCRC is not separately incorporated, so this provision effectively requires the church to include a non-church member on the church board. While rejecting several other constitutional claims, the court held that this requirement unconstitutionally infringes the church's rights of expressive association. The CCRC "is inextricably linked to the Church's stated goal of evangelization."

Defendants In Anti-Gang Suit Say Order Would Infringe Their Religious Outreach

In Elgin, Illinois, the Kane County State's Attorney last September filed suit against 81 alleged members of the Latin King gang.  The suit, brought under Illinois Streetgang Terrorism Omnibus Prevention Act seeks an order barring the gang members from publicly associating with each other. (UPI, 1/18/11). Now, however, according to yesterday's Chicago Tribune, four of the defendants are asking the court to dismiss them from the lawsuit, arguing that the order would violate their rights of free expression and free exercise of religion.  One of the four says he was never a gang member, and the other three say they have left the gang. All four say they have now dedicated their lives to Jesus, and want to begin an outreach program to those who remain gang member.

UPDATE: Here is the full text of defendants' motion to dismiss.

Warren Jeffs Hospitalized, In "Medically Induced Coma" [Updated]

AP reports that Warren Jeffs, leader of the polygamous FLDS Church, who is serving a life sentence for sexual assault and aggravated sexual assault of two minors who he had taken as his "spiritual wives", was hospitalized yesterday and is in critical condition.  It is reported that Jeffs is in a "medically induced coma".  In prison, he had been fasting for some period of time. An official said that Jeffs is expected to live, but the details of his medical condition are unclear.  Jeffs had recently been moved to a prison 100 miles southeast of Dallas and was being held in protective custody, which requires he be held alone in his cell and not involved in any work programs.  He is out of his cell only to shower and for recreation alone, though followers say he will continue to lead his sect from inside prison.

UPDATE: According to Reuters (8/30), correctional authorities say Jeffs is not in a coma, but is "somewhast sedated" and remains responsive.

New Report on Attitudes of Muslim Americans Released

The Pew Research Center today released an extensive public opinion survey of Muslim Americans. The report (full text) titled Muslim Americans: No Signs of Growth in Alienation or Support for Extremism, and is described by Pew as follows:

Based on interviews with 1,033 Muslim Americans conducted this year (April 14-July 22) in English, Arabic, Farsi and Urdu, the wide-ranging report looks at Muslim Americans’ political and social attitudes; religious views and practices; experiences and difficulties faced after 9/11; views of Islamic extremism; views of U.S. efforts at combating terrorism; and views of national conditions. In addition to updating trends from earlier Pew Research surveys, the report includes comparisons of Muslim Americans with the general public and with Muslims in other countries, as well as detailed demographic information.

The report finds that 63% of Muslim Americans are first-generation immigrants, and estimates the total Muslim population in the U.S. to be 2.75 million.

Texas Prison Begins Program To Offer Inmates Theology Degree

Yesterday, the Texas prison system inaugurated its program to permit long-term prisoners at its Darrington Unit to earn a 4-year degree in Biblical Studies from Southwestern Baptist Theological Seminary.  According to Friday's Houston Chronicle, the graduates will go on to minister to inmates at other prisons. State legislators who back the program say that a similar program at Angola Prison in Louisiana has reduced prison violence by 70%. The Texas program is entirely supported by private funds. The non-profit Heart of Texas Foundation raised $150,000 in start-up funds to pay for a library, teachers and equipment. Brad Livingston, executive director of the Texas Department of Criminal Justice, explained: "The men who complete this four-year program will be a powerful voice to other inmates seeking to get their lives back on track, and will aid us in successfully reintegrating these inmates back into society." Americans United's Wall of Separation blog criticizes the program on church-state grounds.

Kosovo's Parliament Votes Down Religion In Schools, Hijab In Classroom

Kosovo's Constitution (Art. 8) provides that "The Republic of Kosovo is a secular state and is neutral in matters of religious belief."  Reaffirming that principle, 64 members of the country's 120-member Parliament have voted against proposals introduced by small religious parties to teach religion in the schools and to end the ban on wearing of the hijab (headscarf) in classrooms. AFP, reporting yesterday on these developments, points out that Kosvo is 90% Muslim, but has a tradition of moderate Islam.

Hopis Make Another Attempt To Prevent Use of Recycled Waste Water At Snowbowl

In 2008, the Hopi Indian tribe was one of several plaintiffs who lost a bid under the Religious Freedom Restoration Act to stop the federal Forest Service from approving the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort.  The 9th Circuit, en banc, rejected plaintiffs' claims of spiritual contamination of the sacred San Francisco Peaks, saying that the tribes' diminished spiritual fulfillment is not a "substantial burden" on their free exercise of religion. (See prior posting.) Now, according to a press release issued last week, the Hopis have filed a new challenge to the use of waste water, this time in state court, in a lawsuit against the city of Flagstaff (AZ).  The suit seeks to invalidate the city's contract to sell 1.5 million gallons of reclaimed waste water per day to Snowbowl.  The complaint alleges that the use of reclaimed water in a mountain setting will violate various environmental, health and safety restrictions. It asks the court to prohibit performance of the contract on the ground that it is for an illegal purpose and contrary to public policy.

Turkey Restores Seized Property To Non-Muslim Religious Groups

The New York Times reports that on Saturday, Turkey's prime minister Recep Tayyip Erdogan issued a decree returning to minority religious groups hundreds of properties that have been seized since 1936. According to AP, the decree also provides that groups will be compensated for confiscated property that has been sold to others. Erdogan announced the decree yesterday to guests at an Iftar dinner he hosted in Istanbul which was attended by representatives of over 150 Christian and Jewish trusts. The European Union-- which Turkey hopes to join-- has been pressing the country to eliminate discriminatory policies against non-Muslim religious groups, but nationalist groups in Parliament have opposed return of the seized property.  The Executive Decree bypasses Parliament. Today's Zaman has more details on the history of the property expropriations.

Report Traces "Roots of the Islamophobia Network In America"

Last week, the Center for American Progress issued a 130-page report titled Fear, Inc.-- The Roots of the Islamophobia Network in America. Here is an excerpt from the "Introduction and Summary":

[A] core group of deeply intertwined individuals and organizations manufacture and exaggerate threats of “creeping Sharia,” Islamic domination of the West, and purported obligatory calls to violence against all non-Muslims by the Quran. 

This network of hate is not a new presence in the United States. Indeed, its ability to organize, coordinate, and disseminate its ideology through grassroots organizations increased dramatically over the past 10 years. Furthermore, its ability to influence politicians’ talking points and wedge issues for the upcoming 2012 elections has mainstreamed what was once considered fringe, extremist rhetoric.

... A small group of foundations and wealthy donors are the lifeblood of the Islamophobia network in America, providing critical funding to a clutch of right-wing think tanks that peddle hate and fear of Muslims and Islam—in the form of books, reports, websites, blogs, and carefully crafted talking points that anti-Islam grassroots organizations and some right-wing religious groups use as propaganda for their constituency. ....

Altogether, ... seven charitable groups provided $42.6 million to Islamophobia think tanks between 2001 and 2009....

The report identifies "five experts [who] generate the false facts and materials used by political leaders, grassroots groups, and the media."  One of those leaders, Robert Spencer, director of Jihad Watch, yesterday  posted a strongly worded rebuttal.

India Embarking on Caste Census

India, for the first time in 80 years, is conducting a caste census according to Saturday's Sydney (Australia) Morning Herald. India's Constitution (Art. 15(2)) bars discrimination on the basis of caste, and abolishes "untouchability" (Art. 17). However, informally the caste system is still important, and the government has created set-asides in university admissions, government jobs and seats in Parliament for "backward castes."  Members of Parliament from backward castes have pressed for the census, arguing that the set-aside programs require the government to know how many people of each caste there are.

Recent Articles and Book of Interest

From SSRN:

• Tamar Hostovsky Brandes, Between Vowels and Values: Education in Religious Communities, (Journal of Law, Religion and State, 2012).
• Peter T. Leeson, Oracles, (August 22, 2011).
• Nelson Tebbe, Nonbelievers, (Virginia Law Review, Vol. 97, 2011).
• Gregory C. Sisk and Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, (U of St. Thomas Legal Studies Research Paper No. 11-23, 2011).

From SmartCILP:

• Susan C. Hascall, Shari'ah and Choice: What the United States Should Learn From Islamic Law About the Role of Victims' Families in Death Penalty Cases, [Abstract], 44 John Marshall Law Review 1-67 (2010).

Recent Book:

• Louisa Thomas, Conscience: Two Soldiers, Two Pacifists, One Family--a Test of Will and Faith in World War I,  (Penguin, June 2011), author interview at Religion Dispatches.

Religious Health Institute Violated California Law By Excluding Blind Participant

In Stevens v. Optimum Health Institute, 2011 U.S. Dist. LEXIS 95372 (SD CA, Aug. 24, 2011), a California federal district court held that Optimum Health Institute (OHI), a holistic health institute operated by the Free Sacred Trinity Church, violated California's Unruh Civil Rights Act and its Disabled Persons Act when it refused to allow plaintiff, who is blind, to attend its program alone with a cane, and instead insisted that she attend with a sighted companion. The court found issues of material fact remain as to whether OHI violated these statutes in refusing to allow plaintiff to attend with a service animal. In reaching its conclusion, the court held that OHI is a "business establishment" under the Unruh Act and a "public accommodation" under the Disabled Persons Act. The court rejected claims that applying these laws to OHI violates it rights to freedom of expression or the free exercise of religion.  It found that "California's goal to ensure that all business establishments and places of public accommodation are accessible to people with disabilities is a compelling State interest."

Suit Challenges Village Newsletter's Promotion of Church-Sponsored Activities

Chicago area activist Rob Sherman announced that this week he filed a state court lawsuit against his home Village of Buffalo Grove (IL) challenging its use of its bi-monthly Village News and its weekly Village E-News to promote activities sponsored by religious organizations.  The most recent example which triggered the lawsuit was an E-News posting promoting an upcoming Pig and Corn Roast sponsored by Hope Lutheran Church in nearby Long Grove.  The complaint (full text) in Sherman v. Village of Buffalo Grove, (Cook Co. Cir. Ct., filed 8/24/2011), contends that the village is violating the First Amendment, as well as Art. VIII, Sec. 1(a) and Art. X, Sec. 3 of the Illinois Constitution that require public funds to be used only for public purposes and prohibit forcing taxpayer support of any religious institution. Buffalo Grove Patch reports on the filing of the lawsuit.

Painting of Jesus As Mickey Mouse Declared "Extremist" By Russian Court

The Huffington Post and RIA Novosti report on a decision handed down earlier this month by a court in the Kaluga Region of Russia finding that a painting (shown in the Huffington Post article) of Jesus with the head of Mickey Mouse is "extremist".  The ruling means that the painting will be banned from exhibitions, newspapers, magazines and television under the provisions Art. 13 of of Russia's Federal Law No. 114 FZ on Counteraction of Extremist Activities (2002). The painting by Alexander Savko, titled Sermon on the Mount, was part of a display titled Mickey Mouse's Travels Through Art History and was first shown a a controversial 2007 display of Forbidden Art. The organizers of that show were convicted of inciting national and religious hatred and were fined. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Coley v. Smith, (11th Cir., Aug. 23, 2011), the U.S. 11th Circuit Court of Appeals upheld the district court’s grant of qualified immunity to defendants in a case in which prison authorities failed to procure all the food items that Nation of Islam inmates requested for the Eid-ul-Fitr feast in time for it celebration.

In Maddox v. Love, (7th Cir., Aug. 24, 2011), the U.S. 7th Circuit Court of Appeals reversed a substantial part of a district court’s decision and refused to dismiss at the pleading stage an inmate’s claim that his free exercise and equal protection rights were infringed when prison authorities allocated a disproportionately small amount of its budget to African Hebrew Israelite services and singled out African Hebrew Israelite religious services for cancellation due to budget cuts. It also held that plaintiff had not failed to exhaust administrative remedies merely because his grievance did not list the names of the defendants.

In Patten v. Brown, 2011 U.S. Dist. LEXIS 92985 (ND CA, Aug. 4, 2011), a California federal district court dismissed an inmate’s complaint that he was denied access to religious services and denied time in a chapel for meditation. Plaintiff failed to identify his religion or indicate whether access to a quiet sanctuary burdened his religious beliefs.

In Navarro v. Herndon, 2011 U.S. Dist. LEXIS 94606 (ED CA, Aug. 23, 2011), a California federal magistrate judge recommended that an inmate be permitted to proceed with his claim that his free exercise and equal protection rights were violated when he was denied access to Native American religious services, or even a visit from a spiritual advisor after the death of family members, when he was placed for his own protection in administrative segregation.

In Harke v. Ada County Sheriffs, 2011 U.S. Dist. LEXIS 94439 (D ID, Aug. 22, 2011), an Idaho federal magistrate judge held that the confiscation of a former jail inmate's Bible involved only de minimus harm, and that defendants had qualified immunity in a suit challenging the confiscation.  The Bible was taken because plaintiff violated jail rules when he shared it with other inmates.

In Epps v. Grannis, 2011 U.S. Dist. LEXIS 94765 (SD CA, Aug. 23, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 94762, Aug. 1, 2011), and denied a preliminary injunction to a Muslim inmate who wanted into the kosher diet program, wanted to attend worship services and receive religious packages and artifacts. The court concluded that plaintiff's allegations were vague.

Czech Government Commission and Churches Agree On Settlement For Confiscated Property

The Prague Daily Monitor and Czech Position both report on the agreement reached on Aug. 24 between a Czech government commission and church representatives on compensating churches for property seized by the former Communist regime of Czechoslovakia. The agreement, which must now be approved by the Czech parliament, caps some 20 years of negotiations. Opposition parties have come out against the agreement, and the smallest party in the government coalition has expressed reservations about it. Under the agreement, the government will return 56% of the property to the churches, and will compensate them the equivalent of $(US)3.49 billion over 30 years for the remainder of the property. The final piece of the agreement, reached Thursday, calls for the government to continue for a 17-year transition period to pay clergy salaries and modest amounts for the upkeep of churches. The Catholic Church will receive 80% of the land and compensation, with the remainder divided among a number of other religious communities (Protestant, Orthodox, and Jewish). (See prior related posting.)

Texas Appeals Court Upholds 2008 Search Of FLDS Yearning For Zion Ranch

A Texas appeals court has rejected claims that a 2008 search of the FLDS Church's Yearning for Zion Ranch violated the constitutional rights of defendants who were convicted of sexual assault on the basis of evidence discovered in the search.  The initial search warrant in the case was based on telephone calls to a crisis hotline which were later determined to be hoax calls. In Emack v. State of Texas, (TX App., Aug. 26, 2011), defendant who plead no contest and was convicted on a charge of sexual assault of a child appealed the trial court's refusal to suppress evidence from the search. The court held that defendant lacks standing to challenge the legality of the interviews of juveniles at the ranch.  It rejected other challenges to the affidavits presented to obtain search warrants and to the issuance of the warrants.  Finally, it concluded that the searches did not violate defendant's free exercise of religion. Defendant did not show "that the searches conducted at the YFZ Ranch curtailed his ability to express adherence to his faith through a particular religiously motivated act or that the searches otherwise pressured him to modify his religious conduct." The Texas Attorney General yesterday issued a press release reporting on the decision.

Ending High School Football Game Prayer Remains Controversial

In at least two school districts around the country, prayer at high school football games continues to generate controversy.  Bell County, Kentucky school officials last week ended the tradition of having a minister lead a prayer over the public address system before games.  The Lexington (KY) Herald-Leader reports that the step was taken after after the Freedom from Religion Foundation complained about the practice. (Full text of FFRF letter). According to FFRF, Bell County school superintendent George Thompson said: "We've always taken a position that we’ve going to do it until someone makes us stop." However, Republican David Williams, who is running for Governor against incumbent Steve Beshear this November, urged the governor "to denounce this attack on prayer at public functions and lead the efforts of state government to defend our citizens' right to voluntarily pray anywhere they choose." (Lexington Herald-Leader).

Meanwhile, in DeSoto County, Mississippi, again after an FFRF letter of complaint, officials ended prayers over the loud speaker system before high school football games and other school functions, saying that it is enforcing an existing policy against the practice. (Fox News). In response, according to God Discussion, at yesterday's football game, after the national anthem, parents wearing "DeSoto County for Prayer" T-shirts stood up and chanted the Lord's Prayer and students clustered into groups to pray.

Justice Department and Georgia City Agree To Settle Mosque Zoning Dispute

Earlier this month, the city of Lilburn, Georgia approved a controversial rezoning request of a Muslim congregation to build a new worship center, and the Dar-E-Abbas Shia Islamic Center indicated it would drop its federal discrimination lawsuit against the city. (See prior posting.) However the Justice Department continued to examine whether it should bring a RLUIPA lawsuit against the city.  A Department of Justice press release yesterday that it has been involved in pre-suit negotiations with the city and that a settlement has been reached.  Pursuant to that agreement, the government yesterday filed a lawsuit along with a proposed consent decree. Under the decree, the city agrees not to impose different zoning or building requirements on any religious group. It agreed that various city leaders and employees will attend training sessions on the Religious Land Use and Institutionalized Persons Act, the city will clarify its complaint process, and will report periodically to the Justice Department.

Boston Archdiocese Expands Disclosure of Priests Accused of Sexual Abuse

The Archdiocese of Boston yesterday announced a change in its policy regarding disclosure of names of priests accused of sexually abusing minors. Since 2002, the Archdiocese has had a policy of notifying law enforcent authorities of all allegations of sexual abuse of children. However, the names of priests were publicly disclosed only after either a criminal conviction or defrocking by the Church. Under the new policy, names will now also be disclosed where (1) an accused priest is voluntarily laicized; (2) a priest has been publicly accused and is on administrative leave, but Church proceedings have not been completed; (3) priests who had been laicized and subsequently were publicly accused of sexual abuse; and (4) priests who were publicly accused after they had died or who died before or during proceedings against them. The Archdiocese published  the names of 159 priests, of whom 25  had been publicly accused but the accusations against them were found to be unsubstantiated. Another 91 names of accused priests were not posted.  These were mostly cases where accusations had never been made public and either could not be substantiated, or had not been substantiated when the priest died. CNN, reporting on the policy change, quoted the director of SNAP, an advocacy group for victims, who called the disclosures "belated," "begrudging" and "incomplete".

Battle Over Control of New Orleans Catholic School

Last month, a Catholic religious order, the Josephites, filed a federal lawsuit against six members of the board of directors of St. Augustine High School, a Catholic boys school in New Orleans. As summarized by the New Orleans Times-Picayune:

The Josephites, the religious order that runs the Catholic boys' school, is suing six renegade members of St. Augustine's 12-member board of directors. The suit says the men usurped their power and staged "an attempted coup" last month by replacing the school's bylaws and by adding 14 members from the St. Augustine community to the seven-member Board of Trustees, an organization heretofore made up only of Josephites that wields power over the board of directors....

The suit represents the latest act in the escalating battle between St. Augustine faculty, parents and alumni and the Baltimore-based order. It started over the school's history of discipline through paddling, but it has morphed into a fight over who will control the 60-year-old school, which has turned out many community leaders.

The complaint (full text) in St. Joseph Society of the Sacred Heart, Inc. v. Henry, (ED LA, filed 7/11/2011), asks the court to declare that a June by-law amendment was invalid. Last Monday, the Times-Picayune reported that a mediator who was appointed in the case was making good progress.

Now, according to yesterday's New Orleans Times-Picayune, defendants are seeking to have federal district judge Jay Zainey recuse himself in the case because of "biased" and "insulting" remarks in court and because a Catholic non-profit home for adults with developmental disabilities with which the judge has close ties is connected to the Archdiocese of New Orleans that supports the Josephites. Defendants were planning to file a formal resucal motion with the 5th Circuit yesterday.

Meanwhile, Josephites are trying to deliver an "important letter" to school president Rev. John Raphael who was removed by the Josephites, but who continues to serve as president and is contesting his removal both in a state court breach of contract lawsuit and through Church channels.

Indictment Handed Down In Arson Attack on Mosque

An FBI press release yesterday announced that a Eugene, Oregon federal grand jury has indicted a 24-year old man on federal hate crime and arson charges for setting fire to an Islamic Center in 2010. Cody Crawford is charged with intentionally setting fire to the Salman Alfarisi Islamic Center in Corvallis (OR) less than two days after authorities arrested a Somali-born Muslim in a sting operation in connection with a plot to bomb a Portland (OR) Christmas Tree Lighting ceremony. The charges against Cody carry a prison term of 10 to 30 years.

Fiji Military Government Cancels Methodist Church's Conference and Imposes Other Sanctions

In the South Pacific island nation of Fiji, the military government-- for the third consecutive year-- has cancelled the annual conference of Fiji's Methodist Church. Some 36% of Fijians are Methodists. (Statistics).  According to a report yesterday from ENI News, the government wanted Methodist church President Ame Tugauwe and General Secretary Tuikilakila Waqairatu to resign from their positions before the start of this year's annual conference.  The two are charged with breaching emergency laws in 2009. The Methodist church supported the former government that was overthrown in a bloodless coup in 2006. In addition to cancelling the annual conference, Fiji's Land Force Commander Colonel Mosese Tikoitoga has barred all Methodist Church clergy from leaving the country and banned the issuance of permits for any official Methodist Church meetings.

Teacher Reinstated After Anti-Gay Marriage Facebook Posting Now Charged With Improper Religious Statements

In Lake County, Florida on Wednesday, school Superintendent Susan Moxley ruled that Mount Dora High School social studies teacher Jerry Buell did not violate the district's code of ethics when he he posted an anti-gay marriage message on his personal Facebook page. The posting said that same-sex unions are a "cesspool" that make him want to throw up. WFTV News reports that the former Teacher of the Year was reinstated when school officials concluded that his posting did not "disrupt the orderly processes of the district." Yesterday, however, the Orlando Sentinel reported that officials have placed a "written directive" in Buell's personnel file because of religious postings on his school webpage and in his class syllabus.  On the webpage, Buell wrote that he tries to "teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself."  On his syllabus, he tells students: "I teach God's truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, 'cause I ain't changing!" The webpage has been removed and Buell has been instructed to delete some parts of his syllabus.

Meanwhile, at a rally yesterday, Liberty Counsel featured Buell "along with others who have received similar persecution for their Christian beliefs."

"Underwear Bomber" Files Unusual Motions Seeking Relief on Religious Grounds

Yesterday, Umar Farouk Abdulmutallab, in federal prison in Michigan accused of attempting to blow up a plane over Detroit on Christmas Day 2009 using a bomb hidden in his underwear, filed two unusual handwritten letters with the Michigan federal district court yesterday.  The first (full text), captioned Motion for Detention Hearing, (brackets in original) reads:

The Defendant Abdulmutallab, is a Muslim who believes in Allah and His messenger Muhammad [Peace be Upon Him], and believes that all Muslims should only be ruled by the law of the Quran.

The Defendant is being unjustly detained, in the United States of America, and subjected to the Rule of Man.

The Defendant Abdulmutallab moves the Court to order his release, and that the Defendant only be judged and ruled by the law of the Quran.

The second (full text), captioned Motion for No Use of Excessive Force on Defendant Abdulmutallab, (brackets in original) reads:

On the 24th of August 2011, between the hours of 5:00 am to 10: am, in the Holy month of Ramadan, Defendant Abdulmutallab, in Defense of Muhammad (Peace be Upon Him], [the Messenger of Allah to Mankind who is being defamed and abused by the United States of America] assaulted several officers from his cell.

As a result, Excessive Force was used to restrain Defendant Abdulmutallab who was already in a closed cell on his own.

The Defendant moves the court to order that no Excessive Force be used on Defendant Abdulmutallah in justly defending Muhammad (PBUH) and his Religion.

[The United States legally allows the defamation of Muhammad (PBUH), and by allowing so it is defaming and Abusing Him] PBUH 

Abdulmutallah's trial is set to begin October 4.  He dismissed his legal team last year, but has court-appointed back-up counsel.  The Detroit News reports on the filings.

Critics Assail Absence of Religious Leaders From Planned 9-11 Ground Zero Ceremony

This year's 9-11 memorial service at Ground Zero threatens to become mired in controversy as New York Mayor Michael Bloomberg's office determines who will participate in the special tenth anniversary ceremony. Last week, first responders expressed outrage that they were not to be part of the ceremony. (CNN, 8/16).  Now New York's former deputy mayor Rudy Washington is complaining bitterly that no religious leaders are included in the ceremony, saying: "This is America, and to have a memorial service where there's no prayer, this appears to be insanity to me. I feel like America has lost its way." The Wall Street Journal reported yesterday that many religious leaders are urging the mayor to reverse their exclusion. City officials, however, say that religious leaders did not participate in past years' memorial ceremonies, and the city wants this year's ceremony to have the same flavor as those of the past, with a focus on 9-11 families. Rabbi Joseph Potasnik, executive vice president of the New York Board of Rabbis, said he understands the problems of deciding which groups should be included once religious leaders are invited.  An interfaith event recognizing first responders is scheduled for Sept. 6.

Delta Airlines Will Not Facilitate Saudi Policy Requiring Travelers To Disclose Religion

According to a press release this week from the Simon Wiesenthal Center, Delta Airlines has now give assurances that, even though Saudi Arabian Airlines will join the Sky Team global airline alliance in 2012, Delta does not currently and will not in the future request on behalf of any airline that passengers disclose their religious affiliation. The assurances came in a letter (full text) from Delta after concerns were raised by Jewish, Christian and Hindu groups that Delta might facilitate the Saudi government's requirement that travelers to the country disclose their religion.

Founder of "Save a Torah" Arrested On Federal Fraud Charges

In a press release yesterday, the U.S. Attorney's Office for the Southern District of New York announced the arrest on one count each of mail and wire fraud of Menachem Youlus, founder of the "Save a Torah" charity.  Youlus claimed he rescued Torah scrolls that were lost or hidden in Europe during the Holocaust.  The rescued Torahs were then donated or sold to Jewish communities or synagogues in the United States and elsewhere. Youlus used his accounts of how the Torahs were rescued to raise over $1.2 million in contributions.  The complaint unsealed yesterday charges that many of the Torahs represented as "rescued" were in fact merely purchased by Youlus from Torah dealers in the United States and lacked any connection to the Holocaust. Youlus also is charged with embezzling funds from Save a Torah for his personal use and submitting false invoices for purported costs of rescuing Torahs. JTA reports on the case.

St. John's Launches New Law and Religion Website

St. John's University Law School's Center for Law and Religion has announced the launch of CLR Forum, an online resource featuring a roundup of scholarship, a list of upcoming conferences, and commentary on current issues. A link to CLR Forum has been added to the Religion Clause sidebar under "Academic Centers".

Court Allows Assistant Prosecutor To Move Ahead With Religious Discrimination Claim

Yesterday's Youngstown Vinndicator reports that an Ohio federal district court is permitting an assistant city prosecutor to move ahead with his lawsuit claiming he was harassed because of his Muslim faith and that accommodation of his religious worship schedule was ended.  Bassil Ally, a devout Muslim who has been an assistant city prosecutor for 7 years says he was subjected to taunts by fellow-employees suggesting he was connected to terrorists. Ally also took a late lunch (at 1:30 pm) every Friday so he could go to his mosque.  This was not problem for two years when he was assigned to a courtroom that did not meet on Fridays. But when he went to his worship service instead of attending a Friday afternoon meeting called by prosecutor Jay Macejko, he was placed on administrative leave. This led him to file religious discrimination charges with the Ohio Civil Rights Commission. While permitting the suit to proceed against the city and Macejko, the court dismissed the former mayor and the law director as defendants, and placed transcripts of conversations between Ally and co-workers under seal. (See prior related posting.)

Suit Challenges Noise Pollution During Hindu Festivals In Indian City

In the Indian city of Thane, a lawsuit has been filed seeking to require the city to enforce noise ordinances against those celebrating Hindu religious festivals. According to yesterday's Times of India, political parties have reacted negatively to the public interest lawsuit filed by activist Dr. Mahesh Bedekar, saying that restrictions will dampen the festive spirit. Police issued notices to 51 mandals, most formed by politicians, that exceeded permitted decibel levels by 100% during Monday's Dahi handi celebrations. Meanwhile, according to another Times of India article, today the Bombay High Court ordered the state to convene a meeting with mandal representatives to see if the festival can be celebrated with less noise next year.  In anticipation of the upcoming Ganesh festival, the court directed the mayor to meet with city corporators to discuss noise pollution, and told police not to issue permits for loud speakers within 100 meters of major hospitals.

Florida Hebrew Charter Schools Thrive

Tuesday's New York Jewish Week reports on the success of the five Ben Gamla Hebrew Language Charter Schools operating in south Florida which enroll some 1,500 students in kindergarten through 12th grade.  The state-funded charter schools, whose enrollment is 80% to 90% Jewish, have thrived despite initial concerns about church-state issues.  Each student studies Hebrew language at least one hour per day.  The schools serve kosher food, and make accommodations when students miss school on Jewish holidays.  An optional after-school Judaic studies program operates in other buildings near each school. Many of the Ben Gamla schools are located on Jewish Community Center campuses or in buildings of former Jewish day schools. The schools, founded by former congressman Peter Deutsch, aim at high quality education.

NYPD Intelligence Unit Monitored Mosques

AP today has published a lengthy investigative story detailing operations by the New York Police Department's intelligence unit in attempting to prevent Islamic terrorism.  NYPD has received extensive cooperation from the CIA, operates beyond the boundaries of New York City and extensively monitors ethnic neighborhoods.  At least in the past, part of the NYPD's activities have included monitoring of sermons at mosques:

For years, detectives used informants known as mosque crawlers to monitor weekly sermons and report what was said.... If FBI agents were to do that, they would be in violation of the Privacy Act, which prohibits the federal government from collecting intelligence on purely First Amendment activities.

The FBI has generated its own share of controversy for putting informants inside mosques, but unlike the program described to the AP, the FBI requires evidence of a crime before an informant can be used inside a mosque.....

"If you're sending an informant into a mosque when there is no evidence of wrongdoing, that's a very high-risk thing to do," [FBI general counsel, Valerie] Caproni said. "You're running right up against core constitutional rights. You're talking about freedom of religion."

That's why senior FBI officials in New York ordered their own agents not to accept any reports from the NYPD's mosque crawlers, two retired agents said.

It's unclear whether the police department still uses mosque crawlers. Officials said that, as Muslims figured out what was going on, the mosque crawlers became cafe crawlers, fanning out into the city's ethnic hangouts.

"Someone has a great imagination," Browne, the NYPD spokesman, said. "There is no such thing as mosque crawlers."

New Anti-Creationism Campaign Being Launched

Film maker Greta Schiller, working with the National Center for Science Education and Americans United for Separation of Church and State, is launching the "Celebrate Science" campaign beginning Aug. 28 in Tallahassee, Florida.  A press release issued Monday announced that the Campaign will feature a new film, "No Dinosaurs In Heaven," in cities around the country.  The release says that the film:

explores the problem of creationists who earn science degrees in order to sneak their anti-science beliefs into the classroom. As a stunning visual counterpoint, Dr. Eugenie Scott of the National Center for Science Education leads a raft trip down the Grand Canyon, where the creationist and evolutionary explanations of this natural wonder are juxtaposed.The film moves from the Grand Canyon to the American Museum of Natural History to actual middle school science classes in New York City, where public school teachers find themselves on the front lines of this struggle.

Jury Awards $578,000 For Discriminatory Firing of Jewish Casino Employee

Last week, a federal district court jury in Greenville, Mississippi awarded $102,000 in back pay, $76,500 for mental anxiety and $400,000 in punitive damages to a former gambling casino employee who, the jury found, was fired because he was Jewish.  According to Monday's Jackson (MS)  Clarion Ledger, Marc Silverberg, the former food and beverage director for Sam's Town Casino & Gambling Hall in Tunica, said that his firing was due to the prejudice of a new general manager who was hired. The company claimed Silverberg was fired for poor job performance. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Chaplaincy Groups Urge Congress To Increase Religious Liberty Protections In Face of DADT Repeal

Alliance Defense Fund announced that last week 22 representatives of religious groups that endorse military chaplains wrote a letter (full text) to Congressional leaders urging action to protect religious liberty as the repeal of the "don't ask, don't tell policy" becomes effective.  The letter reads in part:

Chaplains and service members have told us they are very concerned they will be marginalized and even punished for being faithful to their religious beliefs in the wake of the repeal. We share those concerns. In fact, some chaplains have already personally experienced the punitive atmosphere this repeal has generated.

President Obama’s group that studied repeal assured Congress and the military that religious liberty would not be harmed. However, those assurances are not law and have not been transferred into actual law....  Chaplains and service members will be chilled from freely and fully exercising their faith because, for instance, they cannot know whether a commander in Fort Lewis will view religious and moral expression on sexuality more restrictively than one in Fort Bragg.

Unrecognized Indian Tribes Face Hurdles In Maintaining Religious Rites

The Christian Science Monitor on Monday reported on the problems faced by the nearly 300 Indian tribes that have not been formally recognized by the federal government. Native Americans, such as the Winnemem Wintu tribe based in northern California, are ineligible for many federal tribal benefits.  Among other things, unrecognized tribes do not qualify to apply for permits to possess eagle feathers.  In March, the Fish and Wildlife Service revoked the permit held by Winnemem spiritual leader and tribal chief, Caleen Sisk-Franco, who uses an eagle feather fan in healing ceremonies. Also the tribe's traditional sacred sites are being overrun by outdoor enthusiasts, and are threatened further by proposals to raise the Shasta Dam.  The disparity between recognized and unrecognized tribes increased in December when President Obama announced the United States would endorse the United Nations Declaration on Indigenous Peoples, but indicated that unrecognized tribes would be excluded from coverage. The Bureau of Indian Affairs, through its Office of Federal Acknowledgement, has a process for tribes to gain recognition. However it is lengthy, and the Winnemem think they should not have to go through the process.

Investigation Charges Extensive Military Spending On Christian Based Programs

Chris Rodda blogging last week at Talk To Action reports on the findings so far by the Military Religious Freedom Foundation in its investigation of Pentagon spending on faith-based programming-- mostly evangelical Christian in emphasis.  Findings show several hundred thousand dollars was allocated for a "Commanding Generals' Spiritual Fitness Concert Series" at Fort Eustis and Fort Lee in Virginia.  The Army's "Strong Bonds" program receives $30 million per year in funding for pre- and post-deployment retreats for soldiers and their families. The retreats often have an evangelical Christian theme to them. Also Military Community Youth Ministries has received over $12 million in Department of Defense contracts since 2000, while another evangelical group, Cadence International, has received $2.6 million.

Draft Transitional Libyan Constitution Makes Islam the State Religion. But Protects Non-Muslims

The National Journal reported yesterday that even though Libya's Transitional National Council is not fully in control of the country, a draft constitution has appeared online. The Draft Constitutional Charter for the Transitional Stage includes this provision regarding religious rights:

Article (1) ...Islam is the Religion of the State and the principal source of legislation is Islamic Jurisprudence (Sharia).... The State shall guarantee for non-Moslems the freedom of practising religious rights and shall guarantee respect for their systems of personal status.

The document provides that one month after the country is liberated and the Transitional National Council moves to Tripoli, the Council is to appoint a Constitutional Authority which in turn is to draft a final constitution to be presented to the people for approval in a plebiscite.

Illinois Law Gives Secretary of State Option of Issuing Non-Photo IDs For Amish

Last week, Illinois Gov. Pat Quinn signed H.B. 1484 (full text) which gives the Secretary of State the authority to provide by rule for the issuance of state identification cards without photographs for applicants (such as the Amish) who have a bona fide religious objection to being photographed or displaying their photos. According to the Chicago Tribune, Secretary of State Jesse White has doubts about the usefulness of an ID card that has no photo on it.  State Rep. Adam Brown wants the state police to develop a non-public data base that could be used by authorities to identify those who are issued IDs without photos, possibly using fingerprints instead of photos.

British Muslim Students Want Sharia-Compliant Student Loans

In Britain, the Federation of Student Islamic Societies is pressing the British government to create a new student loan system that is consistent with Sharia law.  According to yesterday's London Mail, until now students have only been required to pay interest equal to the rate of inflation-- an arrangement that apparently Muslim students found acceptable.  However changes that take effect next year will result in students paying higher rates of interest on the loans they take out to pay tuition. Rates will depend on their income after they graduate.  Some Muslim students say they may not apply to university because of the change.  The government's Department of Business, Innovation and Skills is discussing an arrangement for Sharia compliant loans that would be structured to "rent" education to students. However that kind of arrangement may not be in place until the 2013-14 academic year.

South Sudan Leaders Urge No Politicizing of Religion

The new nation of South Sudan-- whose population largely holds either Christian or traditional African beliefs-- has a secular constitution.  Today's Sudan Tribune reports that South Sudan's President Salva Kiir, a Roman Catholic, speaking to a Ramadan break-the-fast at the Presidential Guest House on Saturday, urged clerics to help the government solve problems facing the new nation, but to avoid politicizing religion or practicing religious corruption. He said his Sudan People's Liberation Party Movement supports religious freedom. Atahir Bior, head of the South Sudan Muslim Council, agreed, saying: "As religious leaders we should only be preaching about love and peace. We should not mix politics with religion." South Sudan broke from Khartoum in part because of Sudan's insistence on applying Sharia law in all of the country.

Defamation Action By Muslim Chaplain Against Newspaper Dismissed As Nonactionable "Opinion"

In Rashada v. New York Post, (NY Co. Sup. Ct., Aug 11, 2011), a New York trial court dismissed a defamation action (full text of 1/20/2011 complaint) brought by a female teacher at a mosque in Newburgh, New York who is also a chaplain in the New York prison system.  Plaintiff, Melody Rashada, sued the New York Post and Patrick Dunleavy over an article by Dunleavy published in the Post in Sept. 2010 titled Converts to Terror: The Prison Chaplain Problem.  The article, focusing on four defendants who were on trial on terrorism related charges, asked how the defendants were radicalized to the point that they would consider bombing synagogues in the Bronx and shooting down an aircraft with missiles.  Dunleavy's column said said:

What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque in Newburgh that the defendants attended after being released from prison had a connection with the prison system. Imams Salahuddin Muhammad, Hamin Rashada and Melody Rashada worked for the Department of Correctional Services. All had been hired by Warith Deen Umar -- who for years headed ministerial services for the New York state prison system.

Rashada argued that this language, together with the title of the column, was defamatory because it suggested that she and the other two imams engage in the radicalization of prison inmates. The court conluded, however:

In the context of a defamation action, “expressions of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation.”...

In this case, both the context of the article itself and its broader social context indicate that it should be treated as non-actionable opinion. The article was printed under the multicolored and bolded heading “POST OPINION,” which alerted all readers that the article they were about to read was the opinion of Dunleavy....  Moreover, the broader social context of the article - the radicalization of prison inmates, leading them to engage in terrorist activity - is a topic which is intended to create much discussion and debate, and a topic on which a verifiable conclusion is neither expected nor delivered.

Recent Articles of Interest

From SSRN:

• Benjamin S. Walton, The Authoritativeness and Usefulness of the Principles of God's Old Covenant Law for the New Covenant Church and State, (Liberty University Law Review, Vol. 5, p. 419, 2011).
• Steven Douglas Smith, The Plight of the Secular Paradigm, (San Diego Legal Studies Paper No. 11-062, Aug. 17, 2011).
• Steven Douglas Smith, Freedom of Religion or Freedom of the Church?, San Diego Legal Studies Paper No. 11-061 (Aug. 17, 2011).
• Fernando R. Tesón, The Morality of Targeted Killing, (Using Targeted Killing to Fight the War on Terror, Andrew Altman, Claire Finklestein, and Jens Ohlin, eds., Oxford University Press, 2011).
• Steven Douglas Smith, The Paralyzing Paradox of Religious Neutrality, (San Diego Legal Studies Paper No. 11-060, Aug. 17, 2011).
• Jean-François Gaudreault-DesBiens, Religion, Expression and Freedom: Offense as a Weak Reason for Legal Regulation, (Cahiers de Recherche sur les Droits Fondamentaux, No. 8, pp. 53-66, 2010).

From bePress:

• Michele R. Pistone, Asylum Rights and Wrongs: What the Proposed Refugee Protection Act Will Do and What More Will Need to Be Done, (Villanova University School of Law Working Paper Series. Working Paper 159, Feb. 2011).

From SmartCILP:

• David A. Carrillo and Shane G. Smith, California Constitutional Law: The Religion Clauses, 45 University of San Francisco Law Review 689-777 (2011).
• Rev. John L. McCausland, Finding a Footing: A Theological Perspective on Law and the Work of Joseph Vining, 55 Villanova Law Review 1107-1120 (2010).
• Steven D. Smith, Persons All the Way Up, 55 Villanova Law Review 1177-1190 (2010).
• James Boyd White, The Creation of Authority in a Sermon by St. Augustine, 55 Villanova Law Review 1129-1142 (2010).

Washington State Permits For Religious Activities On State Property Surveyed

In the wake of a widely-publicized denial last week by the Washington state Department of General Administration for a church to conduct a baptism ceremony in the state-owned Heritage Park (see prior posting), AP has examined the record of past permit approvals and denials. It found that prayer, church picnics and advertising for fundraisers by houses of worship have been allowed on various state property, while baptisms and religious speeches have not. At issue is the manner in which the state interprets Art. I, Sec. 11 of the state constitution, which provides: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." A Department of General Administration spokesman says that "prayer is considered more of a conversation instead of an instruction or exercise, so that's why it can be allowed while others are not." However he admits that the line can be "murky."