Scalia Speaks At Duquesne About Morality, Capital Punishment

Justice Antonin Scalia on Saturday spoke at the event marking the centennial of Duquesne University School of Law.  The Pittsburgh Post-Gazette reports on his remarks that called on the law school to maintain its moral judgment, saying: "Our educational establishment these days, while so tolerant of and even insistent on diversity in all other aspects of life, seems bent on eliminating the diversity of moral judgment, particularly moral judgment based on religious views." Responding to concerns raised by protesters who oppose capital punishment, Scalia said: "If I thought that Catholic doctrine held the death penalty to be immoral, I would resign. I could not be a part of a system that imposes it."

Top Bishop Says Obama's Position ON DOMA Threatens Enormous Church-State Conflict

Last week, Archbishop Timothy Dolan, president of the United States Conference of Catholic Bishops, sent a strongly worded letter (full text) to President Obama objecting to the Administration's decision earlier this year to no longer defend the constitutionality of the Defense of Marriage Act. (See prior posting.) Dolan said in part:

[I]t is particularly upsetting, Mr. President, when your Administration, through the various court documents, pronouncements and policies identified in the attached analysis, attributes to those who support DOMA a motivation rooted in prejudice and bias. It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing....

Our federal government should not be presuming ill intent or moral blindness on the part of the overwhelming majority of its citizens, millions of whom have gone to the polls to directly support DOMAs in their states and have thereby endorsed marriage as the union of man and woman. Nor should a policy disagreement over the meaning of marriage be treated by federal officials as a federal offense— but this will happen if the Justice Department's latest constitutional theory prevails in court. The Administration's failure to change course on this matter will, as the attached analysis indicates, precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.

The Bishops Conference also issued a press release announcing the letter.

Sukkah In Park Raises Church-State Question

The New York Times reported yesterday that the issue of religious displays on public property is arising now in connection with plans by a Jewish group to erect a sukkah-- a temporary hut-- in a small park in TriBeCa.  Chabad of TriBeCa has asked for a permit to put up the temporary Sukkot holiday structure which is a symbol of the fragile shelters the ancient Israelites used while wandering in the desert. Community Board 1 is scheduled to vote Tuesday on whether or not to allow the sukkah.  Some object on church-state grounds.  Chabad says that Jews in the area want the sukkah so they have a convenient place to carry out the custom of sitting and eating in the sukkah during the Sukkot holiday period.

British Police Say Some Bible Verses Violate Public Order Act

According to the Christian Institute, in Britain police in Lancashire last week told the owner of  the Salt and Light Coffee House that some Bible verses displayed at the cafe violate the Public Order Act 1986.  Section 5 of the Act bars display of "any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." The cafe owner runs DVDs that cycle through each verse of the New Testament on a TV screen located on the cafe's back wall.  Police received a complaint that some of the verses were homophobic.

Recent Prisoner Free Exercise Cases

In Gardner v. Riska, (11th Cir., Sept. 22, 2011), the 11th Circuit held that  an inmate had failed to demonstrate that he sincerely believe a kosher diet was important to the free exercise of his religion, even though his claim for injunctive relief against the Florida Department of Corrections was not "frivolous."

In Williams v. Horel, 2011 U.S. Dist. LEXIS 105484 (ND CA, Sept. 19, 2011), a California federal district court permitted a Buddhist inmate to proceed against some of the named defendants on claims that they failed to provide him with an adequate religious vegetarian diet.

In Vinson v. Riley, 2011 U.S. Dist. LEXIS 105378 (WD MI, Sept. 16, 2011), a Michigan federal district court rejected qualified immunity for defendants who improperly relied on an inmate's objective knowledge of his religion to determine his religious sincerity.

In Ali v. Dewberry, 2011 U.S. Dist. LEXIS 105367 (ED TX, Sept. 16, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 105349, July 27, 2011) and denied a Muslim inmate's motion for relief from judgement in a case in which plaintiff complained that his religious concerns about not helping others to eat pork were violated when he was assigned to work as a fork lift operator at a packing plant that slaughtered and processed pork.

In McKethan v. New York State Department of Correctional Services, 2011 U.S. Dist. LEXIS 105771 (SD NY, Sept. 16, 2011), a New York federal district court permitted an inmate to proceed with claims that his Nation of Gods and Earths (NGE) universal crown was wrongfully confiscated, and that his transfer to a different prison was in retaliation for his complaints regarding treatment of members of NGE. VArious other claims were dismissed.

In Damron v. Jackson, 2011 U.S. Dist. LEXIS 106360 (SD OH, Sept. 21, 2011), an Ohio federal district court dismissed claims by inmates who are members of the Christian Separatist Church that their rights were violated by the denial of work proscriptions on the Sabbath and holidays, denial of segregated worship and segregated cell assignments. It also denied a claim for unequal treatment. However the court permitted plaintiffs to proceed with complaints regarding withholding or confiscation of separatist and Nazi literature.

In Moussazadeh v. Texas Department of Criminal Justice, 2011 U.S. Dist. LEXIS 106451 (SD TX, Sept. 20, 2011), a Texas federal district court, in a case on remand from the 5th Circuit, dismissed plaintiff's claim for a kosher diet, finding he had failed to prove the sincerity of his religious dietary beliefs.

In Epps v. Grannis, 2011 U.S. Dist. LEXIS 106617 (SD CA, Sept. 20, 2011), a California federal district court denied a TRO and preliminary injunction to a Muslim inmate who sought to attend worship service, receive religious packages and a kosher diet.

In Ward v. Lee, 2011 U.S. Dist. LEXIS 106733 (WD LA, Sept. 20, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 106801, Aug. 11, 2011) and rejected an inmate's claims that his religious rights were violated when he was barred from chapel privileges for 8 months for masturbating in the chapel.

In Native American Council of Tribes v. Weber, 2011 U.S. Dist. LEXIS 106979 (D SD, Sept. 20, 2011), a South Dakota federal district court denied defendants' summary judgment on plaintiff's complaint under RLUIPA and the 1st and 14th Amendments regarding a prison ban on tobacco for Native American religious ceremonies. However the court dismissed claims under the American Indian Religious Freedom Act and international law.

City Will Allow Misdemeanor Defendants To Choose Church Over Jail

WKRG News reported this week that Bay Minette, Alabama is beginning a new program to allow those who face sentences by the city for non-violent misdemeanors to avoid jail and a fine by instead electing to attend church every Sunday for one year. According to Bay Minette police chief Mike Rowland, the program-- called Operation Restore Our Community-- will save the city $75 per day for each inmate that chooses the non-jail alternative.  So far 56 churches have signed up to participate in the program which requires offenders to check in each week with the church's pastor. After one year of church attendance, the offender's case will be dismissed. Rowland says the program is constitutional because the offender has a choice of whether to choose the church option, and may select the church of his or her choice. [Thanks to Scott Mange for the lead].

Contempt Motion Filed Over Use of Banned City Seal

In 1991, in Harris v. City of Zion, (7th Cir., March 19, 1991, en banc rehearing denied) the U.S. 7th Circuit Court of Appeals held that Zion, Illinois' seal, which depicted various Christian images and the phrase "God Reigns," violated the Establishment Clause. In 1993, the city adopted, and the district court approved, a new seal which merely contained the phrase "In God We Trust." However, now an ad in the Sept. 17-18 Weekend Edition of the Lake County News-Sun invited residents to the city’s third annual Community Network Forum. The ad featured City Commissioner Shantal Taylor next to the old city seal which had been declared unconstitutional.  Yesterday's Lake County News-Sun reports that activist Rob Sherman has filed a motion to hold the city and Taylor in contempt for violating the 1991 injunction by sponsoring the ad. A hearing is scheduled for Oct. 4.

Proposed Settlement Filed In Houston Veterans' Cemetery Case

Yesterday, a joint motion for entry of a consent decree (full text of motion) was filed in Rainey v. U.S. Department of Veterans Affairs, (SD TX, filed 9/22/2011).  The lawsuit claimed that VA cemetery rules were applied to interfere with prayer and religious expression at commitment ceremonies in Houston's National Cemetery.  (See prior posting.) Under the proposed consent decree (full text), reached after mediation by a former Texas Supreme Court justice, the government agreed to 50 stipulations that facilitate the VFW, the Memorial Ladies and the American Legion's providing honor guard ceremonies and condolence cards, including religious expressions, unless the family objects.  To accomplish this, among other things, the VFW and Memorial Ladies are to be decertified as VA "without compensation" employees, and they will operate as private citizens. The decree also assures that these groups can work with funeral homes in offering to participate in committal services.

One of the stipulations provides that language in a National Cemetery Administration directive requiring invocations and benedictions to be "inclusive" and "nonderogatory" will be replaced with language that will enable NCA to preserve the dignity and solemnity of national cemeteries and enforce VA safety and security regulations. The VA will also pay $215,000 in attorneys' fees to plaintiffs. The proposed settlement must still be approved by the court. AP and the Houston Chronicle report on the settlement.

Pope Speaks To Bundestag Urging Religion To Affect Legislation

DPA reports that Pope Benedict XVI yesterday, on the first day of his trip to Germany where he was born, spoke to the Bundestag. He asked lawmakers to keep religion in mind when they drafted laws. He also defedned his right as head of the Vatican state to speak to the German Parliament. A number of members of Parliament boycotted the speech in protest. His address was described as "mainly a philosophical attack on the idea that religion has no place in ethics and politics."

French Court Fines 2 For Wearing Burqa

CNN reported that a French court yesterday apparently became the first court to impose fines for violations of France's ban on wearing of the burqa in public.  (In April, Paris police imposed an on-the-spot fine for violations on another woman.)  One of the women fined yesterday, Hind Ahmas, said she had sought out the punishment so she can take her case to the European Court of Human Rights. Ahmas was fined 120 Eros, while a second woman, Najet Ait Ali, was fined 80 Euros. The fines were later paid by a group called "Don't Touch My Constitution." The group has offered to cover penalties imposed on any woman under the French law.

Suit Seeks Religious Exemption From Drivers License Biometric Photo

In Cleveland County, Oklahoma, a woman has filed suit is state court seeking a religious accommodation that would allow her to obtain a driver's license with a low resolution photograph instead of the state-required high-resolution photo that captures biometric data.  The complaint (full text) in Beach v. Oklahoma Department of Public Safety, (OK Dist. Ct., Sept. 21, 2011), says that plaintiff has learned that the required photographs are in a format required by the United Nations International Civil Aviation Organization, and will be placed in a database shared by various jurisdictions.  Plaintiff alleges that she has a sincerely held religious belief that the Bible, in Revelation 13:16-18 and 14:9-11 (passages dealing with the mark of the beast): "explicitly commands believers to not participate  in a global numbering identification system using the number of man, and eternally condemns participation in that system."

The lawsuit seeks a declaratory judgment that the refusal to provide an accommodation violates the Oklahoma Religious Freedom Act and an injunction requiring granting of an exemption.  The suit also claims that the photo requirement infringes plaintiff's reasonable expectation of privacy in her biometric data. A press release from the Rutherford Institute announced filing of the lawsuit.

Maryland High Court Rejects Application of Ministerial Exception Doctrine In Sexual Harassment CAse

In Prince of Peace Lutheran Church v. Linklater, (Ct. App., Sept. 21, 2011), the Maryland Court of Appeals, the state's highest appellate court, held that the ministerial exception doctrine did not bar a state law sexual harassment claim by a former music director of a church.  The church did not claim that there was any doctrinal reason for the alleged harassment, and the congregation's parent body has promulgated a strong policy against sexual harassment.

City's Allocation To Gospel Festival Questioned

In San Diego, each member of city council is allocated $25,000 each year to use to support events in his or her district.  Sign On San Diego on Tuesday reported that again this year, Council President Tony Young is allocating a portion of his funds to support a gospel music festival known as Praise Fest.  Again the ACLU is objecting. Last year, after objections were raised, promoters removed religious references as well as references to the city from the event's website. A spokesman for the City Attorney’s Office said Praise Fest is primarily "a community-oriented event featuring not only gospel music, which is rooted in culture, but also educational and family-friendly entertainment."

Canadian Court Says Refugee Applicant Held To Too High A Standard of Religious Knowledge

In Mao Qin Wang v. Minister of Citizenship and Immigration, (Fed. Ct., Sept. 2, 2011), Canada' Federal Court held that immigration officials had held an applicant for refugee status to an unreasonably high standard in considering whether he was a genuine Roman Catholic who feared oppression if he returned to China. The court wrote, in part:

In the present case, the Court finds that the Board erred in determining that the applicant was not a genuine Roman Catholic by holding him to an unreasonably high standard of religious knowledge. For example, the applicant was asked if the wafer distributed during Holy Communion represented the body of Jesus or if it was the body of Jesus. The applicant answered that it represented the body of Jesus.... The Board found this answer to be incorrect. The Board erroneously determined the applicant’s knowledge of the Catholic faith by way of “trivia”.

Yesterday's National Post gives more details of the Immigration and Refugee Board's opinion that the court found objectionable.

Group Complains To 2 School Systems About Religious Activities

The Freedom from Religion Foundation announced yesterday two separate complaints to school officials about religious activities.  It has sent a letter of complaint (full text)  to the Chesterfield County, South Carolina school superintendent over activities at a Jefferson (SC) middle school.  At issues is a Sept. 1 school assembly billed as a "worship rally."  The assembly featured a Christian evangelist and rap artist, and included handing out fake $1 million bills with proselytizing verses on them. The bills are pictured in FFRF's press release. The letter also complained about Christian crosses put up on the school lawn to commemorate 9/11, and about the school's promotion of an upcoming "See You At the Pole" prayer event.

In a separate letter (full text) to the president of the Jefferson Parish, Louisiana school board, FFRF raised questions about religious remarks made by the school board president during mandatory teacher in-service training sessions. The letter also raised concerns about e-mails to teachers and staff from the school board president in which he indicated he was praying for them.  An FFRF press release and an article in the New Orleans Times-Picayune both report on FFRF's complaing.

Study Criticizes Kazakhstan's Proposed Religion Law

Yesterday the Institute on Religion and Public Policy released a lengthy analysis of Kazakhstan's proposed new Law on Religious Activity and Religious Associations. The report concludes that:

passage of this legislation would represent a serious setback for religious freedom in Kazakhstan. In the INSTITUTE’S opinion, the legislation contravenes Organization for Security and Cooperation in Europe (OSCE) and United Nations (UN) standards because it clearly discriminates against minority religious groups....

The draft Religion Law and the Administrative Code Law are completely inconsistent with fundamental human rights. The recurring theme of the draft amendments is that they are structured in ways that would completely ban religious organizations or severely restrict religious activities; censor importation and restrict dissemination of religious literature; restrict foreign missionary activity; restrict the construction of new places of worship; and impose sanctions on religious leaders and organizations, including the banning of religious organizations, in a manner impermissible under international standards.

When Does A Home Bible Study Group Become A "Church"?

Pacific Justice Institute announced last week that it is filing an appeal with an Orange County California Superior Court of a decision by a San Juan Capistrano (CA) hearing officer requiring Bible study groups to obtain a conditional use permit to meet in a private home. According to The Blaze on Monday:

City officials ... say Chuck and Stephanie Fromm are in violation of municipal code 9-3.301, which prohibits “religious, fraternal or non-profit” organizations in residential neighborhoods without a permit. Stephanie hosts a Wednesday Bible study that draws about 20 attendees, and Chuck holds a Sunday service that gets about 50.

Homeowners Chuck and Stephanie Fromm, were fined $300 by the hearing officer, and threatened with $500 fines for future violations. [Thanks to Michael Kessler for the lead.]

"Don't Ask, Don't Tell" Formally Ended Yesterday

Yesterday, the military's "Don't Ask, Don't Tell" policy was finally and formally repealed. Under the law passed last year (see prior posting), repeal came 60 days after formal certification by top officials that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention.  In a statement (full text) marking the event, President Obama said:

As of today, patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love. As of today, our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members. And today, as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.

A posting yesterday afternoon on the White House blog by Presidential adviser Valerie Jarett says that: "Already, gay and lesbian men and women have sent in their applications to proudly – and openly – serve the country we all love."  The Wall Street Journal reports that the Defense Department has published revised regulations reflecting DADT repeal.

Louisiana Presbyterian Church Keeps Control of Its Property [Corrected]

In Carrollton Presbyterian Church v. Presbytery of South Louisiana of the Presbyterian Church (USA), (LA App., Sept. 14, 2011), a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name.  It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. That provision of church law specifies that property titled in the name of the congregation is nevertheless held in trust for the parent church. A provision in the Church's Book of Order, however, allowed congregations that were part of the Presbyterian Church in the United States, when it reunited with the United Presbyterian Church in the USA, to opt out of the provision. Carrollton had opted out. The court went on to say that even if Carrollton had not opted out, neutral Louisiana trust law would apply to this case.

The court also upheld against 1st Amendment challenge provision in the injunction that were designed to prevent evasion of its terms.  These included initiating disciplinary actions against Carrollton officials because of the property dispute, dissolving the church in order to take over its property, or otherwise interfering with congregational personnel in ways that relate to use of the property. This does not prevent non-pretexutal ecclesiastical actions. Virtue Online comments on the decision, comparing it to similar cases in the Episcopal Church arising under the so-called Dennis Canon. AnglicansUnited has background on the case.

Court To Unseal Recording of Proposition 8 Trial

In Perry v. Schwarzenegger, (ND CA, Sept. 19, 2011), a California federal district court judge agreed to unseal the digital recording of last year's non-jury trial last on the constitutionality of California's Proposition 8-- the state constitutional amendment barring same-sex marriage.  Focusing on the importance of transparency of judicial proceedings, the court rejected as unsupported conjecture the argument that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings.The court, however, stayed the effectiveness of its order until Sept. 30 to give the parties time to file an appeal and seek a further stay. AP reports on the decision.

En Banc Review To Be Sought In Classroom Banner Case

In a press release yesterday, the Thomas More Law Center announced that it will petition the 9th Circuit for en banc review in Johnson v. Poway Unified School District. In the case, a 3-judge panel of the 9th Circuit rejected claims by a high school calculus teacher that his free speech rights, as well as the Establishment Clause and Equal Protection clause,were violated when his school district required him to remove large banners posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

9th Circuit: Fair Housing Act Religious Exemption Protects Homeless Shelter

In Intermountain Fair Housing Council v. Boise Rescue Mission, (9th Cir., Sept. 19, 2011), the U.S. 9th Circuit Court of Appeals held that the religious exemption in the federal Fair Housing Act applies to shield from religious discrimination claims an organization that sponsors Christian homeless shelters and a drug treatment program.  Thus no claim lies against the Boise Rescue Mission for requiring participants in its drug treatment program to become Christian before graduating. Similarly no religious discrimination claim lies because of the shelter's practice of feeding those who attend the shelter's religious services first before those who do not attend are fed. AP reports on yesterday's decision. (See prior related posting.) [Thanks to Becket Fund for the lead.]

Pakistan Court Issues Temporary Ban on Facebook; Suit Seeks Broader Ban

In Pakistan, the Lahore High Court is hearing a lawsuit seeking a permanent ban in the country on access to the social netwrking site Facebook because it has hosted a page titled "2nd Annual Draw Muhammad Day-May 20, 2011." According to Pakistan Today, yesterday, the court issued a temporary order while the case is pending, requiring the Ministry of Information and Technology to block all websites that spread religious hatred, especially Facebook. However no search engines, such as Google, are to be blocked. The lawsuit, filed by a public interest litigation firm, asks the court to require the federal government to create a permanent authority having legal status that would monitor websites across the world and ban those that blaspheme any religion or their holy personalities. Meanwhile a search of Facebook suggests that the offending page has already been taken down.

Egyptian Copts Seeking Divorce Plan To Resign To Invoke Legal Loophole

Under Egyptian personal status law, the Coptic Orthodox Church controls divorce of couples where both are members of the Church.  Al-Ahram this week reports that hundreds of Copts who are seeking a divorce plan to gather in front of the Ministry of Justice to collectively resign membership in the Church.  Under Egyptian law, if a non-Muslim couple is of different religious denominations, then Islamic Shariah law applies to their divorce.  This will permit the couple to get around the Coptic Church's limitation of the grounds for divorce to adultery. Some are calling for the Ministry of Justice to permit notaries to provide civil marriages and divorce.

Maldives Promulgates New Regulations To Prevent Extremist Islamic Teachings

In the Maldives, the government has published new regulations (full text) under the 1994 Protection of Religious Unity Act in the country's official gazette. According to yesterday's Minivan News, the new regulations, which have undergone numerous revisions since the original draft issued last year, are aimed at preventing the spread of extremism. Under the regulations, only individuals approved by the Ministry of Religious Affairs may deliver religious sermons or lectures.  Among the requirements for approval is that the individual have obtained a degree from one of 36 specified colleges or universities in 12 countries.  The regulations also set out 12 principles that must govern any religious sermons or advice. The include requirements that the person:

(f) Not engage in any talk that may create hatred and anger among the people, nor disseminate any information that incites to violence of any kind.

(g) Not engage in any talk that may be interpreted as racial and gender discrimination, nor prevent people from education or health services in the name of Islam. 

(h) When explaining issues contested among scholars, clearly explaining each scholar’s individual stand on the contested issue; and if the licensed preacher takes a personal side on the issue, clearly explaining to his/her audience why and based on what criteria and evidence he/she is basing his/her personal judgment on that particular issue.

The regulations also bar propagating any faith other than Islam and displaying in public books on other religions.  The media may not  broadcast programs that humiliate Allah, the Qur'an, the Sunnah of the Prophet Muhammad  or Islam.

Both the Islamic Foundation of the Maldives and the Adhaalath Party (that controls the Islamic Ministry) have objected to the new regulations.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Witchcraft and the Constitution, (T.W. Bennett, eds, Traditional African Religions in South African Law p. 156, UTC Press, 2011).
• Mohammad Fadel, A Tragedy of Politics or an Apolitical Tragedy?, (Journal of the American Oriental Society, Vol. 131, No. 1, 2011).
• Kenneth Lasson, Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers, (Baltimore Jewish Times, April 8, 2011).
• Tokufumi Joshua Noda, The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use, (Boston College Law Review, Vol.1, 2011).

Engage, Vol 12 No. 2:

• Robert F Wilson and Jana Singer, Same-Sex Marriage and Conscience Exemptions.
• Richard W. Garnett and Kurt T. Lash, The Establishment Clause.
• Gregory S. Baylor and Ronald Chen, Did the Supreme Court Properly Decide Christian Legal Society v. Martinez?
• William L. Saunders, European Court of Human Rights Finds No Right to Abortion Under European Human Rights Convention.

Rubashkin's Conviction, Sentence Upheld By 8th Circuit

In United States v. Rubashkin, (8th Cir., Sept. 16, 2011), the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior related posting.)  Charges against Rubashkin alleging hiring of illegal aliens in his meat packing plant were ultimately dropped. The 8th Circuit rejected claims of bias toward Rubashkin, objections to scheduling of trial dates and to evidentiary rulings and certain jury instructions. It also concluded that the trial court was not obligated to adopt a downward departure from the Sentencing Guidelines based on Rubashkin's past charitable acts and family obligations. Friday's Des Moines Register reported on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Vinning-El v. Evans, (7th Cir., Sept. 16, 2011), the 7th Circuit dismissed a claim for supervisory liability against a rison warden on plaintiff's claim that as a Moorish Science adherent, he should be entitled to a vegan diet. The court remanded the question of whether the prison chaplain had qualified immunity in connection with the denial, holding that the issue depended on whether the chaplain's denial was based on a good faith finding of insincerity of plaintiff's religious belief, or was instead based on the conclusion that the Moorish Science religion does not make a vegan diet a tenet of its faith.

In Hopkins v. Apadaca, 2011 U.S. Dist. LEXIS 99145 (WD PA, Sept. 2, 2011),  a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 101806, Aug. 3, 2011) and dismissed a claim by an inmate, who for religious reasons was a vegetarian, who complained that he had high cholesterol but was kept on a high cholesterol diet that included peanut butter.

In Lewis v. Snyder, 2011 U.S. Dist. LEXIS 102520 (ND IL, Sept. 12, 2011), an Illinois federal district court rejected constitutional and statutory challenges by a Nazarite inmate to the requirement that he cut his hair rather than wear his hair in dreadlocks. The court also rejected complaints that his cut dreadlocks were not returned to him and that he could not participate in religious feasts because he had no religious designation on his identification card.

In Gaston v. Redmon, 2011 U.S. Dist. LEXIS 102462 (ED CA, Sept. 11, 2011), a California federal magistrate judge recommended dismissing an inmate's claim that his free exercise rights were violated when an officer refused to place a gold chain and medallion taken from him on a property form.

In Ciempa v. Jones, 2011 U.S. Dist. LEXIS 102580 (ND CA, Sept. 9, 2011), a California federal district court rejected an inmate's claim that his rights under RLUIPA were violated when he was not permitted to possess the book Stoic Warriors. However, the court ordered prison officials to submit a plan that would allow space and time in the prison chapel for the Five Percent Nation of Gods and Earths to engage in religious exercise, or else to demonstrate to the court that a total ban is necessary for institutional security.

In Shabazz v. Virginia Department of Corrections, 2011 U.S. Dist. LEXIS 102194 (ED VA, Sept. 8, 2011), a Virginia federal district court dismissed a number of plaintiffs who had failed to exhaust their administrative remedies as to complaints that Nation of Islam prisoners were being denied access to various religious activities and rights. The court ordered defendants to respond as to exhaustion on one plaintiff's claims.

In Parks v. Smith, 2011 U.S. Dist. LEXIS 102453 (ND NY, Sept. 9, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 102460, March 29, 2011) and dismissed RLUIPA and free exercise claims by an inmate who was barred from sending out a photo to a personal ad service. The court held that authorities had a compelling interest and used the least restrictive means in preventing the inmate from mailing a photo of himself wearing red pants and making a hand gesture that resembled one used by the Bloods gang, even though the inmate claimed it was a religious meditation gesture.

In Barros v. Minnick, 2011 U.S. Dist. LEXIS 103827 (ED CA, Sept. 13, 2011), a California federal magistrate judge found inadequate allegations to support a free exercise claim in an inmate's charge that defendants disposed of a cassette tape Bible recording belonging to him.

In Mitchell v. Cate, 2011 U.S. Dist. LEXIS 103843 (ED CA, Sept. 13, 2011), a California federal magistrate judge allowed an inmate to proceed against some of the defendants he named on a claim that his rights were infringed by keeping him from all participation in religious activity during his 8 months of administrative segregation.

In Daniels v. Bossier Parish Medium Security Facility, 2011 U.S. Dist. LEXIS 103891 (WD LA, Sept. 14, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103905, Aug. 23, 2011) and dismissed as frivolous free exercise and equal protection claims by a Muslim inmate. Plaintiff contended that there are no call-outs for Muslims to pray on Fridays, but there are Christian call-outs. He also alleged that Christian inmates receive Bibles without charge from preachers, but Muslim inmates can obtain copies of the Qur'an only by purchasing them.

In Zimmerman v. Jones, 2011 U.S. Dist. LEXIS 103714 (D CO, Sept. 14, 2011), a Colorado federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103592, May 26, 2011) and dismissed plaintiff's complaints regarding sub-par kosher meals and a lack of Jewish supplies.

In Griffin v. Alexander, 2011 U.S. Dist. LEXIS 104000 (ND NY, Sept. 14, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 104905, Aug. 25, 2011), and dismissed an inmate's free exercise and RLUIPA challenge to denial of parole. The court however gave plaintiff permission to refile the challenge as a habeas corpus petition. At issue was plaintiff's claim that the parole board wanted him to enter a sex offender treatment program that would require him to falsely admit a sexual act he did not commit in violation of his religious obligation as a Jehovah's Witness not to lie. The court found that this claim, as currently pleaded, lacked merit.

Air Force Chief of Staff Cautions Commanders Against Endorsing Religion

Yesterday's Air Force Times reports on a Sept. 1 Memorandum (full text) issued by Air Force Chief of Staff Gen. Norton Schwartz. titled "Maintaining Government Neutrality Regarding Religion." The memo reads in part:

Leaders at all levels ... must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates or to extend preferential treatment for any religion....

Chaplain Corps programs, including activities such as religious studies, faith sharing and prayer meetings are vital to commanders' support of individual Airmen's needs and provide opportunities for the free exercise of religion. Although commanders are responsible for these programs, they must refrain from appearing to officially endorse religion.... Therefore, I expect chaplains, not commanders, to notify Airmen of Chaplain Corps programs.

The memo appears to be directed at situations such as last February's Air Force Academy National Prayer Luncheon which, while financed by the Chapel Tithes and Offerings Fund, was promoted by the command structure. (See prior posting.) A suit challenging the Luncheon was dismissed on jurisdictional grounds.

Same-Sex Couple To Sue B and B's For Rejecting Civil Union Ceremony

In Illinois, same-sex couple Tom and Mark Walthen are about to sue two bed-and-breakfasts after the establishments refused to rent space to the couple for their civil union ceremony.  According to yesterday's Chicago Tribune, the owner of one of the B and B's-- Timber Creek Bed and Breakfast in Paxton-- explicitly invoked his religious freedom rights.  He e-mailed the couple: "We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate." The Illinois Department of Human Rights found "substantial evidence" of a civil rights violations in the refusal by both B and B's, freeing the couple to file suit.  They plan to do so shortly.

Rabbinical School Dean Entitled To New York Property Tax Exemption

In In re Application of Renni Altman v. Assessment Review Commission of the County of Nassau, (Nassau Co. NY Sup. Ct., Sept. 6, 2011), a New York trial court held that a rabbi who was employed as Associate Dean of Hebrew Union College and Director of its Rabbinical School was entitled to the $1500 per year real estate tax exemption granted by New York law (RPTL Sec. 460) to clergy.  Nassau County argued that Rabbi Altman's position was administrative, not religious, and thus she was not entitled to the exemption. The court however held that her administrative duties were de minimis and were interconnected with her rabbinic duties that included addressing the professional development and spiritual needs of rabbinic students. Moreover the statute only requires that the member of the clergy be engaged in work assigned by the denomination in order to qualify for the exemption. [Thanks to Steven H. Sholk for the lead.]

Court Refuses To Decide Church Governance Dispute

In Rosenberger v. Jamison, (FL App., Sept. 16, 2011), a Florida state appellate court held that deciding a dispute about governance of the First Baptist Church of Micanopy would unconstitutionally entangle the court in a religious controversy.  The church's governing documents were changed to move it from a congregational-led church to one governed by elders. Four opponents of the change were terminated from membership.  They sued to reverse their expulsion and revoke the change in the church's governing documents, claiming that these actions were taken without following the procedures set out in the then-existing Articles and Bylaws of the church. The court said:

[T]he issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church....

[E]xercising jurisdiction in this instance would be tantamount to “intervening on behalf of [a group] espousing particular doctrinal beliefs.” We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

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.