No Attorneys' Fees Awarded In Litigation Over Bible Sign

In Signs for Jesus v. Town of Chichester, 2011 U.S. Dist. LEXIS 103430 (D NH, Sept. 13, 2011), a New Hampshire federal district court refused to grant costs and attorneys' fees under 42 USC Sec. 1988 to a group that ultimately prevailed at the town Planning Board and obtained permission to put up an electronic message sign to display Christian Bible verses. Plaintiffs sued after an initial refusal of their site plan, claiming free exercise and RLUIPA violations. (See prior posting.) Subsequently the Planning Board reversed its decision and approved the sign (see prior posting), and the court approved a consent decree dismissing the lawsuit.  Now, in a dispute over reimbursement of attorneys' fees, the court held that plaintiffs were not "prevailing parties" under Sec. 1988 because they received no material relief from the court.  The court said:

While plaintiffs have received site-plan approval (and a building permit), the Consent Decree awarded them substantially none of the relief they sought in their complaint. The Planning Board approved plaintiffs' site plan a month before the Consent Decree became effective and, for its part, the Consent Decree provided plaintiffs with no injunctive relief, no declaratory relief, no damages, no certiorari order, and no determination regarding the merits of plaintiffs' appeal of the ZBA's decision.

Suit Claims Israeli Independence Day Ceremony In Town Hall Violated Establishment Clause

The Greenwich (CT) Times yesterday reported that a candidate in next year's Democratic primary for U.S. Senate, Lee Whitnun, has filed suit in federal district court seeking a declaratory judgment that Greenwich, Connecticut acted unconstitutionally when it permitted the Jewish Federation of Greenwich to use the city's town hall on a Sunday last May for a celebration of Israel's Independence Day.  Along with the Independence Day celebration, a Bar Mitzvah ceremony for a visiting exchange student from Israel was held at town hall.  The student missed having the ceremony at the usual age of 13 because of the death of his father.

The complaint (full text) in Whitnum v. Town of Greenwich, (D CT, filed 9.8/2011), alleges that the arrangement violates the Establishment Clause as well as the "no preference" clause of the Connecticut constitution (Art. Seventh). The complaint alleges that the Independence Day celebration resulted in inextricably entangling traditional town hall paraphernalia with religious symbols such as the Star of David and "many displays actively promoting an explicitly religiously Jewish and politically Zionist world view." It contends that "to any reasonable observer, the Greenwich Town Hall functioned as an arm of the local synagogue."

The Executive Director of the UJA Federation of Greenwich defended the event saying: "The Israel celebration has been taking place at Town Hall for decades. I believe that other groups celebrate other national independence days. The celebration of Israeli Independence Day is not a religious event."  The  Jewish Federation paid a $351 custodial fee for use of the building for the event.

France Opens Former Fire House For Muslim Worship Site

AP reports that France's Interior Minister Claude Gueant has come up with a temporary solution to the shortage of space in French mosques.  Particularly in two mosques in northern Paris, so many Muslims wish to gather for Friday prayers that they are unable to fit into the buildings.  In a country where strong principles of secularism result in religion being treated as a private affair not manifested in public, the overflow crowds of Muslims have for years prayed on the public sidewalks outside the mosques.  On Wednesday, the French government came to an agreement with Muslim leaders for the outfitting of a 20,000 sq. ft. former fire house for use as two prayer halls.  This is seen as a temporary solution pending construction of an Islamic cultural center with a large prayer hall in Goutte d'Or. A tentative 2013 completion date has been set for the center.

FBI Stops Anti-Muslim Lectures To Trainees

Yesterday AP reported that the FBI is making policy changes to assure that instruction at its training academy is consistent with FBI policy. The change grows out of disclosures that for three days last April-- until stopped by the FBI-- an academy instructor had given lectures critical of Islam.  The lecturer told trainees that the more devout a Muslim is, the more likely he is to be violent. [Thanks to Alliance Alert for the lead.]

Suit Challenges Constitutionality Of Parsonage Allowance

Yesterday's Wisconsin State Journal reports that the Freedom from Religion Foundation has filed suit in a Wisconsin federal district court to challenge the constitutionality of Sec. 107 of the Internal Revenue Code which allows clergy to exempt their cost of housing from income for federal tax purposes. (Background.)  It claims that the exemption violates the Establishment Clause by subsidizing churches and by creating excessive entanglement of church and state. A similar challenge to the parsonage allowance filed in California was voluntarily dismissed by plaintiffs earlier this year. (See prior posting.)

UPDATE: Here is the full text of the complaint in the case, Freedom from Religion Foundation, Inc. v. Geithner, (WD WI, filed 9/13/2011). Also, FFRF has issued a press release on its filing of the lawsuit.

French iPhone App Violates Law Against Collecting Religious Personal Data

JTA yesterday reported that a French iPhone app called "Jew or Not Jew?" was removed from the French iPhone app store after Jewish groups and human rights groups claimed it violates French law. The app allows the user to guess whether various public figures are Jewish or not.  French law prohibits the collection of personal data, such as a person's religion or ethnicity, without the person's consent.  The law was a reaction to the practice of Nazi occupiers in World War II who collected such data to send Jews to concentration camps. The app's developer Jonathan Levy said he intended the app to show pride in being Jewish. The organization SOS Racisme said it was planning to file an official complaint over the app this week. Violation of the French law could be punishable by up to 5 years in prison and over $400,000 in fines. The Wall Street Journal reports that the app is available in App Stores outside France, including in the United States.

4th Circuit: Title VII Exemption for Religious Organizations Extends To Harassment Claims

In Kennedy v. St. Joseph's Ministries, (4th Cir., Sept. 14, 2011), in a 2-1 decision the U.S. 4th Circuit Court of Appeals held that the religious organization exemption in Title VII of the 1964 Civil Rights Act (42 USC 20003-1(a)) applies to religious harassment and retaliation claims, not just to claims of religious discrimination in hiring and discharge.   At issue was a suit against a Catholic nursing home by a nursing assistant, a member of the Church of the Brethren, who claimed that she was subjected to a series of offensive comments regarding her religious dress. Judge King dissenting urged dismissal, concluding that permission to file an interlocutory appeal was improvidently granted. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

State Department Releases Annual Report on International Religious Freedom; Names Countries of Particular Concern

Yesterday, Secretary of State Clinton spoke (full text) at the release of the Department's 13th Annual Report on International Religious Freedom. The report covers the period July- December 2010, reflecting a change in the reporting cycle by the Department.  The report discusses separately the situation in 198 countries. At the release, Secretary Clinton said in part:

In the Middle East and North Africa, the transitions to democracy have inspired the world, but they have also exposed ethnic and religious minorities to new dangers.... Now, the people of the region have taken exciting first steps toward democracy—but if they hope to consolidate their gains, they cannot trade one form of repression for another.

The Report's Executive Summary identifies seven types of threats to religious freedom around the world:  active state repression and impunity; violent extremist attacks; apostasy and blasphemy laws; repression of religious minorities; anti-Semitism; restrictions on Muslim attire and expression; and restrictions derived from security and related concerns. CNN has more on the release of the Report.

Assistant Secretary Michael Posner and Ambassador at Large for International Freedom Suzan Johnson Cook also spoke to the press. (Full text of remarks.)  Posner announced that Secretary Clinton has named eight countries as the worst religious liberty offenders by designating them "Countries of Particular Concern." These are the first CPC designations by the Obama administration. They are the same nations that were named previously: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. However, In the past, the Administration had given waivers under the International Religious Freedom Act to Saudi Arabia and Uzbekistan. (See prior posting.)  Secretary Posner made no mention of similar waivers this year in his remarks.

In April the U.S. Commission on International Religious Freedom had recommended in addition to these eight countries, that Egypt, Iraq, Nigeria, Pakistan, Turkmenistan, and Vietnam be added. (See prior posting.)  In a press release yesterday, USCIRF Chairman Leonard Leo said that the Commission welcomed the State Department's action, and "respectfully urged" Secretary Clinton to consider adding the other six countries.

9th Circuit Upholds School's Order For Teacher To Remove Religious Banners

In Johnson v. Poway Unified School District, (9th Cir., Sept. 13, 2011), the 9th Circuit Court of Appeals rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. Discussing the free speech claim, the court said, in part:

We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom. The answer is clear: it does not.

When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.”...  Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.

In reaching its conclusion, the 9th Circuit reversed a decision by a California federal district court. (See prior posting.) SF Appeal reports on yesterday's 9th Circuit decision.

UPDATE: In a separate unpublished opinion, the 9th Circuit also rejected the teacher's claims under the California constitution. Johnson v. Poway Unified School District, 2011 U.S. App. LEXIS 18992 (9th Cir., Sept. 13, 2011).

Lawsuit Challenges Schools' Ten Commandments Displays

The ACLU of Virginia announced yesterday that it had filed suit in federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. The complaint (full text) in Doe 1 v. School Board of Giles County, (WD VA, filed 9/13/2011) recounts the sequence of events which led to the filing of the Establishment Clause challenge. For over 10 years, a copy of the Ten Commandments had been displayed in each school. When the Freedom from Religion Foundation filed an objection, the superintendent removed the displays and replaced them with copies of the Declaration of Independence.  However, this led to widespread community objections which, eventually, led to the school board by a split vote authorizing the posting of a broader display that includes the Ten Commandments, a picture of Lady Justice, the Star-Spangled Banner, the Bill of Rights,, the Virginia Statute for Religious Freedom, the Declaration of Independence, the Virginia Declaration of Rights, the Mayflower Compact, and the Magna Carta. (See prior posting.) The complaint alleges that this history demonstrates that any alleged secular purpose for the displays is a sham. AP reports on the filing of the lawsuit.

Victim Advocates File Urging International Criminal Court To Prosecute Pope and 3 Cardinals

The New York Times reports that yesterday the Center for Constitutional Rights CCR) representing Survivors Network of Those Abused By Priests (SNAP) filed a complaint (full text) with the International Criminal Court in the Hague seeking investigation and prosecution of 4 high level Vatican officials, including Pope Benedict XVI, for their roles in covering up sex abuse by priests. The 3 others charged are all Cardinals holding important positions in the Vatican, including American Cardinal William Levada. The complaint alleges that the ICC has jurisdiction because the sexual abuse amounts to torture and crimes against humanity. A CCR press release announcing the filing of the complaint reported that: "SNAP and CCR are embarking on a 12-city tour throughout Europe to demand local diocese turn over relevant documents and encourage other victims of sexual abuse by clergy to come forward and provide additional evidence to add to the complaint." The complaint is already accompanied by some 20,000 pages of supporting documents.

5th Circuit Allows Religious Discrimination Claim To Proceed

In Dediol v. Best Chevrolet, Inc., (5th Cir., Sept. 12, 2011), the U.S. 5th Circuit Court of Appeals reversed a Louisiana federal district court and refused to dismiss a Title VII discrimination claim by a former employee of an auto dealership alleging a hostile work environment based on both age and religion.  Milan Dediol's manager refused to permit him to take off work to volunteer at a church event, and subsequently made a string of harassing remarks directed at Dediol's religious beliefs. The court also for the first time in the Circuit held that a hostile work environment claim may be based on age-related harassment.

10th Circuit Hears Arguments On Anti-Shariah Amendment As Muslim Group Endorses Michigan's Bill

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in Awad v. Ziriax, a case challenging the constitutionality of Oklahoma's voter-approved constitutional amendment that bans state courts from considering international law or Shariah law. (See prior related posting.) According to the Oklahoman, Questions from the 10th Circuit bench included ones as to why Shariah law was singled out and whether the ban would affect preferences of individuals of other religions in child custody cases.

Meanwhile, RNS reports that an umbrella group known as the American Islamic Leadership Coalition is supporting a proposed Michigan law (HB 4769) that would ban courts from enforcing foreign law "if doing so would violate a right guaranteed by" the U.S. or Michigan constitution. The ALIC statement (full text) reads in part:

we stand together as a diverse coalition in support of any legislation that serves to protect and integrate our communities into the fabric of this great nation, by strengthening our accountability to the laws of the land, and the constitutions of the various states in which we live.

As American Muslims we are conscious of the fact that ...  Islamists ... in the U.S. are trying their best to portray any opposition to manifestations of shari‘ah law as “racism” and “discrimination against Muslims.” However, as a coalition of traditional, liberal and secular Muslim Americans, we denounce this fear-mongering and playing of the race card, which only serves to mask the Islamists’ highly politicized agenda.

ADL Supports World Trade Center Cross

As previously reported, in July the American Atheists filed a lawsuit challenging on Establishment Clause grounds the moving of cross-shaped steel beams found in the rubble of 9-11 and known as the World Trade Center Cross to the site of the National September 11 Memorial. Now a leading advocate of church-state separation, the Anti-Defamation League, has issued a statement supporting installation of the cross at the memorial. The ADL said in part:

Allowing this cross to be included in the memorial along with other artifacts found at the site does not constitute government endorsement of a religious message. Rather, it is an acknowledgement that these beams – part of the infrastructure of one of the towers – acquired historical significance by giving comfort to many who lost loved ones in the attacks, as well as those who spent days and weeks sifting through the ash and debris.

Amish Men Sentenced To Jail For Refusing To Pay Fines

In Mayfield, Kentucky yesterday, a state trial court judge sentenced nine men who are members of the Old Order Swartzentruber Amish sect to terms between 3 and 10 days in jail for refusal to pay fines imposed on them.  The fines of $148 to $600 grew out of defendants' refusal to display bright orange-red safety triangles on the backs of their horse-drawn buggies. According to the Louisville Courier-Journal, the defendants believe paying the fine would amount to complying with the law that violates their religious principles against wearing bright colors or trusting in man-made symbols for their safety. In June the Kentucky Court of Appeals upheld their sentences (see prior posting), and an appeal is pending in the Kentucky Supreme Court. Graves District Court Judge Deborah Hawkins Cook has 44 additional cases involving similar charges still on her docket. The county jail has ordered special dark-colored jump suits for the Amish men because of their religious objections to wearing the usual orange ones. One of the nine defendants avoided jail when a friend paid his fine.

Mississippi Supreme Court Rejects Challenge To "Personhood" Initiative On Ripeness Grounds

In Hughes v. Hosemann, (MI Sup. Ct., Sept. 8, 2011), the Mississippi Supreme Court rejected on ripeness grounds an attempt to remove from November's ballot an initiative measure that would define "person" in the state constitution as including "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The court held that: "Pre-election challenges of voter initiative proposals are subject only to the review of the sufficiency of the petition itself (i.e., its form) and not its constitutionality (i.e., its substance)."

A dissent by Justice Kitchens, joined by Justice King, argued that:

Measure 26 is defective ... because the text of the measure purports to add a new section to this state’s Bill of Rights and to modify the meaning of two words which appear some twenty times in our Bill of Rights. This is in direct contravention of Section 273(5)(a) of our state constitution, which reads: “The initiative process shall not be used [f]or the proposal, modification or repeal of any portion of the Bill of Rights to this Constitution.”

Responding to this argument, the majority writes:

The dissent worries that Measure 26 “seeks to modify the definition” of “person or persons” as they appear in the Mississippi Constitution. But those terms have never been defined. Therefore, Measure 26 cannot modify a definition that does not now exist.

Kentucky Counties Borrow Funds To Pay Winners' Legal Fees In 10 Commandments Litigation

Two Kentucky counties that were involved in an unsuccessful 11-year battle all the way to the U.S. Supreme Court over posting a Ten Commandments display have now had to borrow funds to pay legal fees of the prevailing plaintiffs.  Saturday's Lexington (KY) Herald Leader reports that  Pulaski County has sent the ACLU a check for $231,662, while McCreary County has yet to pay its share-- which will be somewhat larger as interest continues to accrue.  Pulaski County will repay its bank loan this year, but McCreary County-- which is in worse financial condition-- will take longer to do so. The counties plan to write national religious organizations seeking donations to help them with the repayments. Meanwhile, in the Pulaski County Courthouse, a frame displays a sign reading: "The Ten Commandments were proudly displayed in this frame. Removed by Judge Jennifer Coffman, Eastern Ky. District Federal Court....", and then referring to the appellate decisions upholding the removal.

Chief Rabbis Raise Issue of Religious Accommodation In Israeli Army

Yesterday's Jerusalem Post reports on a problem of accommodating religious beliefs of Orthodox Jewish soldiers in the Israeli army.  At the traditional annual meeting of Israel's two chief rabbis with IDF Chief of General Staff Lt.- Gen. Benny Gantz, the rabbis raised the issue of exempting religious male soldiers from military events that involve women singing.  Orthodox Jewish law prohibits men from hearing women sing-- a prohibition referred to as kol isha. Last week, nine officer cadets walked out of an army event that featured a performance by women soldiers, and some refused to return even though their commander ordered them to do so.  Four of the soldiers were expelled from officer training school over the incident. Lt. Gen. Gantz said he was reviewing the issue.

Recent Articles of Interest

From SSRN:

• Claudia E. Haupt, Transnational Nonestablishment, (George Washington Law Review, Forthcoming).
• Frederick Mark Gedicks, Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols, (Nevada Law Review, 2011).
• Roland Pierik and Wibren Van der Burg, What is Neutrality, (Amsterdam Law School Research Paper No. 2011-20, 2011).
• Kenneth Lasson, Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment, (in "Global Antisemitism: A Crisis of Modernity," Forthcoming, 2012).
• Rob E. Atkinson, The Future of Philanthropy: Questioning Today’s Orthodoxies, Re-Affirming Yesterday’s Foundations, (FSU College of Law, Public Law Research Paper No. 542, 2011).

From SmartCILP:

• Pierre M. Gaunaurd, Hdeel Abdelhady and Nabil A. Issa, Islamic Finance, 45 The International Lawyer 271-285 (2011).
• Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepperdine Law Review 945-1020 (2011).

10th Circuit Rejects Challenge To Polygamy Ban As Frivolous

In Adgeh v. Oklahoma, (10th Cir., Sept. 8, 2011), the U.S. 10th Circuit Court of Appeals in a brief opinion (after refusing to hear oral argument in the case) rejected as frivolous a claim that Oklahoma's statute barring polygamy is unconstitutional. Based on that finding, the court refused to allow plaintiff to proceed in forma pauperis.  Plaintiff's original complaint had primarily cited Biblical examples of polygamy as a basis for his claim. The decision is non-precedential, but may be cited for any persuasive value it has. This is important because another more substantial constitutional challenge to state polygamy laws is pending in the 10th Circuit-- a suit filed in July by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute. (See prior posting.)  [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

Arizona Police Charge Phoenix Goddess Temple Was Prostitution Operation

In Arizona last week, Maricopa County officials announced the arrest and indictment of 18 individuals in connection with a house of prostitution operating in two locations under the guise of a religious organization. Male and female "practitioners" were charged with performing sexual acts in exchange for monetary "donations" at the Phoenix Goddess Temple in Phoenix and Sedona.  They claimed to be providing "Neo Tantric" healing therapies. Saturday's International Business Times reports further on the arrests.

Recent Prisoner Free Exercise Cases

In Elfand v. County of Sonoma, 2011 U.S. Dist. LEXIS 99173 (ND CA, Aug. 29, 2011), a California federal district court permitted a Jewish inmate to proceed with his claim that the Sonoma county jail has a policy of not providing for temporary religious meals while an inmate is attempting to request them, and that this caused him not to receive kosher meals for approximately one month.

In Lefler v. McKee, 2011 U.S. Dist. LEXIS 99256 (WD MI, Sept. 2, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 99232, Aug. 10, 2011) and dismissed an inmate's complaint that the prison's chaplain failed to organize a Seventh Day Adventist religious group in a timely manner and when he did he scheduled the group to meet on Thursdays instead of Saturdays.

In Grimes v. Tilton, 2011 U.S. Dist. LEXIS 99944 (SD CA, Sept. 6, 2011), a California federal district court refused to grant defendants summary judgment on qualified immunity grounds in a Christian inmate's First Amendment challenge to prison regulations-- subsequently modified-- that called for verification of an inmate's religious beliefs before the inmate would be provided with a vegetarian diet.

In Dawson v. California Department of Corrections and Rehabilitation, 2011 U.S. Dist. LEXIS 100287 (ND CA, Sept. 7, 2011), a California federal district court dismissed an inmate's free exercise and equal protection challenges to regulations barring family visits for prisoners serving a life sentence without a parole date, or for prisoners housed in heightened security status. Plaintiff had claimed that the regulations prevented him and his wife "from 'consummating their marriage,' which has 'placed he and his wife on a path to temptation and sin, and ultimately divorce, which also is in contradiction with his faith.'"

In Daley v. Lappin, 2011 U.S. Dist. LEXIS 100624 (MD PA, Sept. 7, 2011), a Pennsylvania federal district court dismissed a complaint by a Rastafarian inmate who complained that he was denied an "Ital" (vegan) diet consistent with his religious beliefs.

In McCray v. McElvogue, 2011 U.S. Dist. LEXIS 101034 (D SC, Sept. 1, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 100879, July 20, 2011) and dismissed a Muslim inmate's complaint that he cannot purchase religious oils, and that prayer rugs are not sold at the prison commissary. His complaint he was not permitted to speak to Muslim instructors was contradicted by a fellow-inmate's affidavit.

In Phillips v. Ayers, 2011 U.S. Dist. LEXIS 100459 (CD CA, Sept. 7, 2011), a California federal district judge adopted a magistrate's amended report and dismissed a Muslim inmate's claims. The magistrate's report-- apparently before it was amended-- is at 2011 U.S. Dist. LEXIS 100461 (April 8, 2011). It rejects claims that plaintiff's rights were violated by rules prohibiting use of the prison chapel for group prayers unless supervised by staff or a volunteer chaplain.

In O'Neal v. San Bernardino Sheriff's Department, 2011 U.S. Dist. LEXIS 100460 (CD CA, Sept. 7, 2011), a California federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 143671, Dec. 6, 2010) and dismissed with leave to amend a pre-trial detainee's claim that his free exercise rights were violated because of problems with receiving sufficient food in his vegan diet. Plaintiff failed to allege a connection between veganism and his Baptist faith.

In Strickland v. Sumner County Jail, 2011 U.S. Dist. LEXIS 101533 (MD TN, Sept. 8, 2011), a Tennessee federal district court dismissed claims by a jail inmate that his 1st Amendment rights were violated by his being "forced" to listen to Christian teachings.

President's Ground Zero Remarks Are Psalm 46

In the wake of criticism by some religious leaders that clergy were not included in the official memorial ceremony at the World Trade Center site in New York (New York Times, 9/8), President Obama's remarks at the ceremony consisted solely of reading Psalm 46. Neither in speaking, nor in the White House release of the official transcript of the President's remarks, was the source of the text identified. Last week Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said of the mayor's decision on who would participate in the ceremony: "Unfortunately Mayor Bloomberg's decision demonstrates the mindless secularist prejudice of the political establishment on our nation's Eastern Seaboard."

President Declares National Days of Prayer and Remembrance

In a Presidential Proclamation issued Friday, President Obama designated Friday, September 9 through Sunday, September 11, 2011, as National Days of Prayer and Remembrance.  The Proclamation reads in part:

I ask that the people of the United States honor and remember the victims of September 11, 2001, and their loved ones through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities. I invite people around the world to participate in this commemoration.

In a separate Proclamation, implementing Congressional resolutions, the President also declared today to be "Patriot Day and National Day of Service and Remembrance."

7th Circuit Upholds Public High School Graduations In Church Building

In John Doe, 3 v. Elmbrook School District, (7th Cir., Sept. 9, 2011), the 7th Circuit, in a 2-1 decision, upheld against an Establishment Clause challenge the practice by two Wisconsin public high schools of holding their graduation ceremonies in a Christian church that the district rented for the occasion. Judge Ripple's majority opinion held:

We do not doubt that symbols can be used to proselytize or that, in the appropriate circumstances, coerced engagement with religious iconography and messages might take on the nature of a religious exercise or forced inculcation of religion.....

On this record, however, graduates are not forced—even subtly—to participate in any religious exercise “or other sign of religious devotion,” ... or in any other way to subscribe to a particular religion or even to religion in general. They are not forced to take religious pamphlets, to sit through attempts at proselytization directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the Church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony.

Judge Flaum, dissenting, however argued:

I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries”—runs afoul of the First Amendment’s establishment clause.... 

In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the pre-eminent symbol of Christianity.... [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.

AP reports on the decision.

Commission Studying Policies On Tax-Exempt Religious Nonprofits Appoints Expert Panels

The Evangelical Council for Financial Responsibility announced yesterday that its Commission on Accountability and Policy for Religious Organizations has appointed the members of  three panels who will work with it in developing a report to Sen. Charles Grassley on issues growing of a a Senate committee staff report on the financial affairs of six high profile Christian ministries. The Commission will also examine other tax policy issues relating to non-profits. (See prior posting.) The Panel of Religious Sector Representatives is comprised of 25 leaders from various faith groups.  The Panel of Nonprofit Sector Representatives is made up of 18 leaders in the non-profit sector.  The Panel of Legal Experts includes 23 lawyers with extensive experience in the area of exempt organizations, religious organizations, and/or constitutional law.

Among the issues being considered by the Commission are whether churches should be more accountable to the federal government; possible changes in the clergy housing allowance exclusion; whether there should be a change in the current prohibition against political campaign intervention by churches and other nonprofits; whether the rules on reasonableness of nonprofit executive compensation should be made more stringent;  and whether penalties should be expanded for nonprofits and nonprofit leaders who engage in prohibited activities.

One 4th Circuit Judge Rejects Religion Clause Challenges To Health Care Reform

On Thursday, the U.S. 4th Circuit Court of Appeals issued two decisions rejecting challenges to last year's health care reform act.  In Commonwealth of Virginia v. Sebelius, (4th Cir., Sept. 8, 2011), the court held unanimously that the state of Virginia lacked standing to challenge the law.  In Liberty University v. Geithner, (4th Cir., Sept. 8, 2011), two judges concluded that the federal tax Anti-Injunction Act bars the court from considering the challenge to the law.  The opinion of the court was written by Judge Motz.  Judge Wynn concurred, but said that if he were to get to the merits, he would find that Congress had authority under its taxing power to enact the individual and employer mandates in the law.  Judge Davis dissenting, argued that the Anti-Injunction Act does not apply, and that Congress had authority under the commerce clause to enact the individual and employer mandates.

In a little-noticed portion of his 73-page dissent, Judge Wynn rejected free exercise, RFRA and Establishment Clause challenges to the statute, saying:

Appellants allege that the Act compels them to violate their “sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions” and prohibits the University from “providing health care choices for employees that do not conflict with the mission of the University and the core Christian values under which it and its employees order their day to day lives.”... This argument is unavailing.... The Act is a neutral law of general applicability and so does not violate the Free Exercise Clause....

I also reject the claim that application of the individual mandate to appellants would run afoul of the Religious Freedom Restoration Act of 1993 (RFRA).... The [Affordable Care] Act contains provisions to ensure that federal funds are not used for abortions (except in cases of rape or incest, or when the life of the woman would be endangered).... and that each state’s health benefit exchange will include at least one plan that does not cover (non-excepted) abortions.... I cannot say that appellants’ complaint makes it plausible that the Act “substantially burdens [their] exercise of religion.” ...

Appellants also challenge the Act’s religious exemptions themselves, claiming that they violate the Establishment Clause and equal protection because “they grant preferred status only to certain religious adherents.”... The religious conscience exemption simply incorporates the exemption created by [26 USC] section 1402(g)(1), which has survived every Establishment Clause challenge to it over the last forty years.... The exemptions easily survive appellants’ equal protection challenge as well.

Military Looks At Revised Insignia For Chaplains

Yesterday's Washington Post reports that Major Gen. Cecil Richardson, chairman of the Armed Forces Chaplains Board, has appointed an advisory committee to make recommendations on creating a new chaplain's insignia for military chaplains to wear.  As the chaplaincy corps becomes more diverse, the separate insignia currently worn by chaplains of each faith sometimes makes it difficult to identify the person's position. So Pentagon officials have endorsed a proposal by retired chaplain Rabbi Arnold Resnicoff to have a new insignia which will carry an identical symbol for all chaplains, and next to it a specific symbol of the individual chaplain's religious affiliation.

Controversial Pastor Appointed South Africa's Chief Justice

Both AP and AFP yesterday report that South Africa's President Jacob Zuma has appointed a Christian pastor as the country's new Chief Justice. Mogoeng Mogoeng, who has been a member of the Constitutional Court for two years, is a pastor in the Winners Chapel International Church. The church not only offers to save souls and cure disease, it also says its prayer and counseling will cure "deviations" such as homosexuality. Mogoeng's appointment was opposed by women's and gay rights groups, the country's main labor federation and by opposition parties.  Criticism focused on opinions Mogoeng has written in which he reduced sentences or dismissed cases against men charged with rape of women, but increased the sentence of a man charged in a homosexual rape.

ACLU Distributes New Guide On Religion In Public Schools

The ACLU of Tennessee yesterday released a new guide on religion in schools designed for administrators and teachers. The 4-page document titled Know Your Rights: Religion in Public Schools, covers a range of issues that commonly arise in school settings, including prayer, holiday celebrations and Bible distribution. A letter accompanying the publication urges superintendents to share the document with principals and teachers.

In Hungary, Public Schools Increasingly Being Turned Over To Churches

According to ENI News yesterday, in Hungary municipal governments are increasingly turning state-owned schools over to churches to operate.  Reduced state subsidies, heavy municipal debt and decreasing numbers of students mean that local councils are finding it increasingly difficult during the current economic recession to afford to continue to operate the schools. More than 60 schools have been transferred to religious organizations in recent months, with the churches as public service providers receiving the same state subsidy as when the school is government run.  However, at least Hungary's Reformed Church is moving cautiously in agreeing to take over schools. Before the Communist takeover of Hungary after World War II, most of the country's schools were operated by the Reformed, Lutheran and Roman Catholic churches.

Merger Raises Question of Whether University Hospital Is A Public Institution

Yesterday's Louisville (KY) Courier Journal reports that church-state questions are being raised regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives.  All of the participating hospitals, including University Hospital and Louisville's Jewish Hospital, have agreed to follow Catholic health care policies.  This means, for example, that none of the hospitals would perform tubal ligations or dispense birth control devices or medications.  At issue is whether University Hospital should be considered a public institution subject to constitutional constraints on endorsing religion.  It is the main teaching hospital for the University of Louisville, a state institution, and the University owns the hospital real estate. The hospital is also the city's main provider of indigent care. The University, however, says this does not make the hospital a public institution. The merger must still be approved by the governor of Kentucky, as well as by the Catholic bishops of Lousville and Lexington.

Report Surveys Indiana's School Choice Programs

As a lawsuit challenging Indiana's new Choice Scholarship program on state constitutional grounds proceeds through the courts (see prior posting), Indiana University's Center for Evaluation and Education Policy last week released a report evaluating three Indiana school choice provisions: Choice Scholarships, School Expenditure Deductions, and the School Scholarship Tax Credit. The 20-page report, School Choice Issues in Indiana: Sifting through the Rhetoric, describes each program in detail, surveys their economic impact and discusses the legal issues raised by the programs. The report also puts forward recommendations for implementation of the programs.  A related Fact Sheet was also released.

Meanwhile, today's Indiana Daily Student reports that so far, parents have applied for only about half of the 7,500 vouchers available under the Indiana Choice Scholarship program this year.

Fashion Designer Gets Light Sentence From French Court For Anti-Semitic Rants

Reuters and The Guardian both report that British fashion designer John Galliano was found guilty today by a French court of making "public insults" based on origin, religion, race or ethnicity.  Charges against the former head Dior designer grew out of two anti-Semitic rants at a Paris bar, one last October and the other in February.  In the most recent incident, Galliano hurled 30 anti-Jewish insults at a French couple in the bar within a 45-minute period.  Galliano testified at his trial that he could not remember the incidents because of his addictions to alcohol, sleeping tablets and Valium.  The court sentenced Galliano to a suspended fine of 6000 Euros ($8421 US), over 5000 Euros in legal fees and nominal damages of 1 Euro to each of the civil parties in the case.  He could have been sentenced to as much as 6 months in prison. Justifying the light sentence, the court pointed to a lack of prior criminal convictions, Galliano's previous regard for respect and tolerance and the treatment for drug and alcohol addiction he obtained after his arrest. (See prior related posting.)

South Bend's Transfer of Land To Catholic High School Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Sept. 7, 2011), an Indiana federal district court held that the city's transfer to a Catholic high school of land the city purchased with $1.2 million of economic development funds violates the Establishment Clause. St. Joseph's High School planned to build a football stadium and track on the property, which was adjacent to its new school building. In exchange for the land,the school agreed to permit the South Bend community to use the stadium, track and other portions of its campus for ten years, on specified terms.  In finding that the transfer would amount to an unconstitutional government endorsement of religion, the court said:

The City’s actual intent is likely to endorse the high school’s construction project, not the high school itself or the religion with which the high school is affiliated. As already discussed, though, the endorsement test looks to the perception of the well-informed observer, not the governmental actor. Furthermore, since the development project as a whole appears to not be contingent at all on the donation, the action will appear to such an observer as more of an endorsement to aid a religious school after the fact than an enticement to bring about redevelopment.

AP reports on the decision. (See prior related posting.)

Court Hears Contempt Charges Against Rabbi Who Refuses To Testify Before Grand Jury

The Los Angeles Times reports that a hearing was held in federal district court in Los Angeles yesterday at which prosecutors asked the court to hold 64-year old Rabbi Moshe Zigelman in contempt for refusing to testify before a grand jury in a tax evasion case involving his Hasidic Spinka sect.  The case involves charges that the sect helped wealthy donors claim fraudulent tax deductions by soliciting charitable contributions and then secretly funneling 80% to 95% of the contribution back to the donors. Zigelman is invoking the religious doctrine of mesira, which prevents him from informing on a fellow-Jew to civil authorities. In 2008, Zigelman plead guilty to participating in the tax scheme, but on similar grounds refused to cooperate with authorities or testify at trial. He was sentenced to two years in prison. (See prior posting.)  Zigelman's attorney yesterday argued that holding his client in contempt would be futile because he will not change his mind and testify merely because he is jailed.

New York Rejects Church As Polling Place After Orthodox Jewish Objection

According to a JTA report this week, New York City election officials have changed their mind about permanently moving the polling location for New York's 73rd and 74th election districts from a public school to St. Agatha's Catholic Church in Brooklyn. Officials have been concerned that the public school site is too small. The decision to reject St. Agatha's came after Assemblyman Dov Hikind, an Orthodox Jew, intervened, complaining that many Orthodox Jews would not vote at the church that featured large crosses inside and outside. Officials are looking for a new site. Meanwhile, apparently voting in an upcoming primary for Civil Court Judge will still be held at St. Agatha's, but individuals may instead vote at the Brooklyn Board of Elections by checking "Religious Scruples" on their ballot application. [Thanks to Joel Alan Katz (Relig. & State In Israel) for the lead.]

Oklahoma School Districts Sue To Challenge Voucher Program

Yesterday's Tulsa World reports that two Oklahoma school districts have filed suit in state court to challenge the constitutionality of Oklahoma's Lindsey Nicole Henry Scholarships for Students with Disabilities Act, as amended. The law provides funds for parents to send special needs children to private schools.  The school districts claim that the law violates the provisions of the Oklahoma constitution, including Art. II. Sec. 5 that bars the use of public funds to aid sectarian institutions.  The districts named as defendants parents who had previously sued the districts in federal court for refusing to provide the scholarships. (See prior posting.) Subsequently amendments to state law transferred administration of the voucher program to the State Department of Education.

New Report Surveys American Attitudes On Religious Diversity

The Brookings Institution and the Public Religion Research Institute yesterday released a new report titled What It Means to be an American: Attitudes in an Increasingly Diverse America Ten Years after 9/11. Much of the 41-page report focuses on mixed attitudes of Americans toward Muslims. Here is an excerpt:

Americans strongly affirm the principles of religious freedom, religious tolerance, and separation of church and state. Nearly 9-in-10 (88 percent) Americans agree that America was founded on the idea of religious freedom for everyone, including religious groups that are unpopular. Ninety-five percent of Americans agree that all religious books should be treated with respect even if we don’t share the religious beliefs of those who use them. Nearly two-thirds (66 percent) of Americans agree that we must maintain a strict separation of church and state.

As a number of findings below demonstrate, however, Americans do not always apply these principles evenly or consistently....

... More than 8-in-10 Americans ... report holding favorable views of Catholics (83 percent) and Jews (84 percent).... Mormons are viewed favorably by two-thirds (67 percent) of the public, and a majority of the public also reports holding a favorable view of American Muslims (58 percent). Atheists are viewed least positively of any religious or ethnic group with less than half (45 percent) of the public reporting a favorable view....

Americans are evenly divided over whether the values of Islam are at odds with American values and way of life.... There are large differences of opinion by political and religious affiliation, age, and trusted media source.....By a margin of 2-to-1, the general public rejects the notion that American Muslims ultimately want to establish Shari’a law as the law of the land in the U.S. (61 percent disagree, 30 percent agree)....

Americans employ a double standard when evaluating violence committed by self-identified Christians and Muslims. Americans are much more willing to say that Muslims who commit violence in the name of Islam are really Muslims than they are to say that Christians who commit violence in the name of Christianity are really Christians.

Another section of the report deals with attitudes toward immigrants and immigration.

Afghan Army Works To Bolster Its Muslim Image

Yesterday's Washington Post reports that in Afghanistan, the battle between the Taliban and Afghan government forces has become in part a battle over which group are true Muslims. The Taliban has undermined popular support for the Army by telling residents that Army members are "fake Muslims." So the government has developed a strategy aimed at strengthening the Islamic credentials of the armed forces. Billboards with a verse from the Qur'an and added attempts to assure that Islamic law is observed in the Army are part of the effort.  So is the building of mosques on Army bases. American funded radio stations encourage military personnel to discuss religious issues on the air.

Religion Clauses of South Sudan's Transitional Constitution Revealed

While the full text of South Sudan's Transitional Constitution has apparently not yet been publicly released, Minister of Justice, John Luk Jok, on Monday told employees of the Ministry of Justice that the Constitution separates religion from politics.  According to the Sudan Tribune, the Justice Minister said that Article 8 (1) of the Transitional Constitution states clearly that religion and state are be separate, while paragraph (2) provides that all religions are to be treated equally.  Article 23 of the Transitional Constitution protects the right to worship or assemble in connection with any religion or belief and the right to establish and maintain places of worship. It goes on to provide that the government will extend any assistance to religions that request it, without prejudice.

En Banc Review Sought In Ban On Charter School's Use of Religious Texts

AP reported yesterday that a petition for en banc review has been filed with the 9th Circuit in Nampa Classical Academy v. Goesling. In the case, a 3-judge panel of the 9th Circuit held that Idaho did not violate the 1st Amendment when it barred use of religious texts or documents in classrooms of a public charter school. The panel concluded that the curriculum of a public charter school is speech of the government, and thus not subject to 1st Amendment protection from government infringement. (See prior posting.)

Virginia County Settles With Justice Department On Claimed RLUIPA Violations

Henrico County, Virgina in 2008 refused to rezone 5.2 acres of undeveloped land that had been purchased by a Muslim group seeking to construct a mosque and community center. The group challenged the rezoning refusal by filing a suit in state court.  Subsequently, the U.S. Department of Justice also began to investigate the matter, and yesterday the Justice Department announced that it had reached an agreement with the county on a consent decree.  A complaint (full text) charging violations of both the anti-discrimination and the undue burden provisions of RLUIPA was filed by the government yesterday in a Virginia federal district court, along with a proposed consent order (full text).  The complaint charges that the rezoning refusal was motivated by hostility to the mosque and its members on the basis of religion. Under the consent order, if approved by the court, the county will permit the mosque to be constructed, will agree to comply with RLUIPA in the future, will provide future religious use applicants notice of their rights under RLUIPA, will provide training on RLUIPA to various county officials, and will implement various reporting, record keeping and monitoring requirements. [Thanks to Eric Treene for the lead.]

Presidential Candidates Talk of Free Exercise, Religious Beliefs At Tea Party Forum

Five Republican candidates participated in a Presidential Forum in South Carolina yesterday hosted by Tea Party-supported Sen. Jim DeMint and televised by CNN. (Full transcript.) Issues of free exercise and personal faith arose several times during the extensive discussions.

One of the questioners, Princeton University Prof. Robert George, asked both Michelle Bachmann and Herman Cain whether the federal government should act to prevent Illinois from refusing to contract with religiously affiliated foster care and adoption agencies that do not place children with same sex couples. Much of Illinois funding for these services comes from the federal government. Here is Bachmann's response:

 BACHMANN: I believe in equal protection under the law. And this is clearly a situation where we have seen a disadvantage to children who are about to be placed either in foster care or in adoptive care. And, again, I believe that is one more example why the rulings of activist judges acting outside the original intent of the Constitution are so very dangerous to the foundation of the country....

GEORGE: But if a state legislature refuses to make funding available on equal terms to those providers who, as a matter of conscience, will not place children in same-sex homes, should federal legislation come in to protect the freedom of conscience of those religious providers, even if the discrimination comes not from the courts, but from the legislature?

 BACHMANN: Well, yes, I do, because I believe that that is a right that is guaranteed to every American under our Constitution and Bill of Rights.....

Here is Cain's answer:

CAIN: ... I believe in the first amendment. So the federal government should not be subsidizing any situation where it's discriminatory against any legitimate religion in this country.....

Both Newt Gingrich and Mitt Romney spoke about asking for God's guidance in decision making.

GINGRICH: ... I think anyone who would not face the most serious questions by asking God's guidance and God's grace and asking God's help would be a person who totally misunderstood the nature of life and who would be dangerous holding a major office.

So, I think -- I would hope anyone would answer you by saying, in a truly big decision, or, frankly, small decisions -- I find myself very often praying just before I speak or just before -- there are -- having -- seeking God's guidance strikes me as being the heart of whether or not you can survive in a world of danger and in a world of temptation and in a world where evil always lurks.....

And here is part of the exchange with Romney:

SENATOR JIM DEMINT...: In this heavy load that the presidential might well be, the time comes when the very difficult decisions are made when there are life and death decisions that direct the destiny of the United States, and you've taken all the information in from each side of the argument and you have to finally say to all the advisers, now I'm alone with my decision, can you tell us how you would do that?

... ROMNEY: Well, I'm a highly analytical guy. So I look at all the data and analysis and summarize it and look at it with my eyes before me. I talk to my wife and get her feelings and sense of confidence and comfort. I go on my knees.

I'm a person of faith. I look for inspiration. I remember seeing President George W. Bush and he showed me a room in the White House where he said he looked at the paintings of other president who made tough decisions.

And then with all that God has endowed with your mind and values, you make that decision.....

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.